R v JTB

29 April 2009, House of Lords

The appellant was convicted of any offence under section 13(1) of the Sexual Offence Act 2003 while he was 12 years old and the issue before the Lords of Appeal (Lord Phillips of Worth Matravers, Lord Rodger of Earlsferry, Lord Carswell, Lord Brown of Eaton-under-Heywood, Lord Mance) was whether the effect of section 34 of the Crime and Disorder Act 1998 (“Section 34”) has been

— to abolish the defence of doli incapax altogether in the case of a child aged between 10 and 14 years or

— merely to abolish the presumption that the child has that defence, leaving it open to the child to prove that, at the material time, he was doli incapax.

Under English criminal law, a child under a certain age is presumed to lack criminal responsibility (i.e. doli incapax or "incapable of committing an offence"). The minimal age of criminal responsibility was determined initially by common law (initially 7, i.e. infra aetatem infantiae) and later legislation e.g. Section 50 of the Children and Young Persons Act 1933 (8 years old) and subsequently by Section 34 (10 years old).

And then there is a conclusive presumption that a child over 14 is capable of distinguishing between right and wrong.

For children between these ages (i.e. 10 and 14) there was a prima facie inference, or common presumption, that they were not capable of distinguishing between right and wrong, but this could be rebutted and "the younger the child the stronger the inference and the more cogent the evidence or circumstances that were required to rebut it".

Judgment

The House of Lords unanimously confirmed that the defence as well as presumption of doli incapax was abolished by Section 34. The Lords were able to ascertaine the clear intention of Parliament by reference to Parliamentary history under the principles in Pepper v Hart (Lord Rodger and Lord Carswell were "inclined to reach the same result solely on construction of the section and taking account of the mischief and of the consequences of the legislation"). Lord Brown agreed that "this is one of those comparatively rare cases where weight may legitimately be put upon the Parliamentary materials".

The presumption was said to have led to "some startling results" and "an anachronism". By reference to the decisions in e.g. JBH and JH (Minors) v O'Connell [1981] Crim LR 632, IPH v Chief Constable of South Wales [1987] Crim L.R. 42, A v Director of Public Prosecutions [1992] Crim L.R. 34, the Lords said "in the case of some offences it beggared belief to suggest that young defendants might not have appreciated that what they were doing was seriously wrong".

The Lords also referred to the comments by Laws J in C (A Minor) v Director of Public Prosecutions [1996] 1 AC 1

"The rule is divisive and perverse: divisive, because it tends to attach criminal consequences to the acts of children coming from what used to be called good homes more readily than to the acts of others; perverse, because it tends to absolve from criminal responsibility the very children most likely to commit criminal acts. It must surely nowadays be regarded as obvious that, where a morally impoverished upbringing may have led a teenager into crime, the facts of his background should go not to his guilt, but to his mitigation; the very emphasis placed in modern penal policy upon the desirability of non-custodial disposals designed to be remedial rather than retributive - especially in the case of young offenders - offers powerful support for the view that delinquents under the age of 14, who may know no better than to commit antisocial and sometimes dangerous crimes, should not be held immune from the criminal justice system, but sensibly managed within it. Otherwise they are left outside the law, free to commit further crime, perhaps of increasing gravity, unchecked by the courts whose very duty it is to bring them to book."

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