C (A Minor) v Director of Public Prosecutions

A child aged between 10 and 14 is presumed to be doli incapax. The prosecution must rebut that presumption beyond reasonable doubt by proving that the particular child knew the act was seriously wrong, rather than merely naughty or mischievous.

Proof of the conduct constituting the offence, however obviously wrongful, cannot alone establish that knowledge. Relevant evidence may include the child’s words, behaviour and surrounding circumstances, although flight will often be equivocal. The evidence must form part of the prosecution case.

The presumption is an established substantive rule. Its abolition or radical alteration raises questions of social policy and the treatment of young offenders which should be determined by Parliament.

The appellant, who was nearly 13, was convicted by a Youth Court of interfering with a motorcycle, contrary to section 9(1) of the Criminal Attempts Act 1981. He and another boy had tampered with the secured motorcycle and fled when police officers approached. The justices inferred from the damage and flight that he knew his conduct was seriously wrong.

The Divisional Court dismissed his case-stated appeal. It held in [1994] 3 WLR 888 that the common-law presumption of doli incapax was no longer part of English law, although it accepted that the available evidence could not have rebutted the presumption had it continued to apply.

The certified question was whether the presumption remained part of the law and, if so, whether it could be rebutted only by clear positive evidence that the child knew the act was seriously wrong, beyond the evidence constituting the offence itself.

1. The appeal was allowed unanimously. Lord Lowry delivered the leading speech. Lord Jauncey, Lord Bridge, Lord Ackner and Lord Browne-Wilkinson agreed that both parts of the certified question should be answered affirmatively.

2. Per Lord Lowry, the common-law presumption that a child aged between 10 and 14 is doli incapax remained part of English law. It had been recognised and applied in an uncontradicted line of authority. Its continued existence had also formed the background to legislation, official reports and recent government policy. Its perceived imperfections did not justify judicial abolition.

3. The prosecution must prove beyond reasonable doubt both that the child committed the act charged and that, when doing so, the child knew it was seriously wrong. “Seriously wrong” means more than merely naughty or mischievous. This requirement concerns the particular child, and the prosecution bears both the persuasive burden and the obligation to adduce sufficient rebutting evidence as part of its case.

4. Proof of the acts constituting the offence cannot alone rebut the presumption, however grave or obviously wrongful those acts appear. The child’s age, the nature of the conduct, surrounding circumstances, and words or behaviour before or after the act may assist. Flight is generally equivocal because it can follow either wicked conduct or mere mischief, although in an appropriate case it may evidence guilty knowledge.

5. Lord Lowry rejected the proposed transfer of an initial evidential burden to the child. Such a change would effectively eliminate the existing presumption and was substantive rather than merely procedural.

6. Lord Lowry considered that earlier convictions should not be admitted to prove guilty knowledge where they would be inadmissible on the primary issue under generally applicable evidential principles. Otherwise a child could be placed in a worse position than an adult. This discussion was not necessary to dispose of the appeal.

7. The presumption attracted substantial criticism, but its reform involved disputed social policy and the wider treatment of juvenile wrongdoing. Lord Bridge and Lord Ackner likewise regarded reform as a matter for Parliament. Lord Jauncey also favoured parliamentary reconsideration, while Lord Browne-Wilkinson expressed no view on what the law should become.

8. The Divisional Court would have been correct to reverse the Youth Court had it applied the presumption, because no evidence beyond the alleged offence itself rebutted it. The case was remitted to the High Court for return to the Youth Court with a direction to dismiss the charge.

1. House of Lords: Allowed the appeal unanimously, answered both parts of the certified question affirmatively, and remitted the case for the charge to be dismissed.
2. Divisional Court of the Queen’s Bench Division: Dismissed the case-stated appeal in [1994] 3 WLR 888, holding that the presumption of doli incapax was no longer part of English law.
3. Youth Court: Convicted the appellant of interfering with a motorcycle contrary to section 9(1) of the Criminal Attempts Act 1981, imposed a fine, and bound over his mother to ensure his good behaviour.