Not as guilty as you thought

A very significant judgment in the High Court about ‘doli incapax’ – the presumption that a child aged between 10 and 14 cannot commit a criminal offence, which must be rebutted by the prosecution. In other words, they must show that the child could fully appreciate that they had done wrong. Not as knee-jerkingly simple as it sounds – see one of our earlier posts on the subject of moral consequences.

It was widely believed that s4 of the Crime and Disorder Act 1998 had abolished doli incapax, but not so, says the High Court:

Although there may not in the past have been any clear recognition that the defence existed separately from the presumption by which it was applied, it seemed that the defence must have been capable of existing without being attached to the presumption.

…as a matter of general principle the burden should remain on the Crown to prove that the child had the requisite understanding. Morever, the standard of proof should be the usual criminal standard.

The full judgment is here. I can’t imagine that the government is too pleased, but perhaps this country will now lose the stigma of having one of the lowest ages of criminal responsibility in Europe.


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