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To Be Or Not To Be ‘Doli Incapax’, That Is The Legal Judgment!

To be or not to be 'doli incapax'

To be or not to be ‘doli incapax‘. Under current legislation, (Crime and Disorder Act 1998 (CDA)), children aged 10 or over are held to be criminally liable for their actions.  This much debated topic would seem to have arisen from the parapet once again as The Telegraph leads on the news that the Liberal Democrats are proposing to raise the age of criminal responsibility to 14.

The question as to whether a child under the age of 14 can tell the difference between right and wrong along with how they should be treated by the courts, has remained an extremely emotive issue.  Prior to the current legislation, children would have been subject to common law, which for over 600 years would have promoted the presumption of doli incapax. It would have been for the Crown to rebut the presumption and prove that the defendant knew that what he/she was doing was seriously wrong.

With the doctrine made extinct by the quill of the previous government under s.34 CDA, this is possibly why the current incumbents within a recent policy paper stated:

We need to protect our children from making mistakes and should not expect vulnerable children to make judgments and decisions that many adults struggle with.”

Conceivably the question now is not one of controversy, but one that places a reformed doctrine of doli incapax back upon the statute books.  In March 2010, Maggie Atikinson, the Children’s Commissioner stated in The Times that:

Children under the age of 12 should not be prosecuted for any crime…a civilised society should recognise that children who commit offences should be treated differently from adult criminals.”

Persuasively, this argument would be supported by the office of National Statistics, as it identifies that 14 and 15-year-olds received the most cautions and that the most common age to be convicted was 16 (British Crime Survey, 2007/08, Home Office).

Turning to case law, in R. v T [2009] UKHL 20, the judgment of Lord Phillips provides a persuasive approach to suggest that the defence of doli incapax survived the CDA.

Given the need for an objective outcome, I would advocate that the United Kingdom has been at the forefront of continued criticism from within Europe and its allies for having the lowest age of criminal responsibility. This is borne out from critics who include the UN Committee on the Rights of the Child, to the UN Standard Minimum Rules for the Administration of Justice, which would state that the minimum age of criminal responsibility below 12 years old is too low.

From a personal perspective, I welcome any advancement to achieve a recognised supported outcome on how this area law may be reformed.  Whilst it is inequitable for the courts to be reliant on making change, it is for a forward thinking government to recognise the fact that there was widespread opposition to abolishing the doli incapax presumption and defence, which was upheld by many different authorities.

In conclusion, I reaffirm the statement presented by Lord Lowry in C (A Minor) v DPP [1996] A.C. 1 at 40, as he ended his thorough examination of the question of doli incapax with the statement by the Australian Professor Colin Howard that “[n]o civilised society regards children as accountable for their actions to the same extent as adults”.

As always,

Justin Time.


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