R v T

Section 34 of the Crime and Disorder Act 1998 abolished both the rebuttable presumption of doli incapax and the underlying doctrine as a basis for criminal responsibility in children aged 10 or over. It did not leave a separate defence under which a child aged between 10 and 14 could require the prosecution to prove knowledge that the conduct was wrong. In its statutory and historical context, Parliament used “the presumption” as a compendious expression for both the concept and its operation. The minimum age of criminal responsibility is therefore 10, subject to the ordinary requirements for proof of the offence, including the requisite mens rea.

The appellant pleaded guilty at Worcester Crown Court to 12 counts of causing or inciting a child under 13 to engage in sexual activity. He was 12 when the acts were committed and received a three-year supervision order.

Before the pleas, the judge ruled that section 34 of the Crime and Disorder Act 1998 prevented the appellant from raising lack of capacity to know that his acts were wrong. The appeal challenged that preliminary ruling. The central issue was whether section 34 abolished only the rebuttable presumption of doli incapax, or also prevented reliance on the doctrine as a separate defence for a child aged 10 to 14.

1. Appeal dismissed. The preliminary ruling was correct. Section 34 of the Crime and Disorder Act 1998 precluded the appellant from advancing lack of capacity to know that his conduct was wrong as a separate doli incapax defence: [1], [22].
2. The court held that the phrase “the rebuttable presumption” in section 34 had to be construed in its legal and legislative context. By 1998, the presumption was generally understood as encompassing both the concept of doli incapax and the procedural means by which it operated. Its statutory abolition therefore removed the concept as a qualification upon criminal responsibility for children aged 10 or over: [5], [20]-[21].
3. The appellant’s construction would have preserved a defence once a credible evidential basis had been raised, leaving the prosecution to prove that a child aged 10 to 14 knew the conduct was wrong. That construction would substantially frustrate the legislative purpose of removing the prosecutorial difficulty which the presumption created: [4]-[5], [19]-[20].
4. The historical common-law materials did not determine the construction. They explained the development of the doctrine, but the decisive question was what Parliament meant by “the presumption” when enacting section 34: [6]-[9]. The court considered that the reasoning in C (A Minor) v Director of Public Prosecutions supported the view that abolition of the presumption meant full criminal responsibility from age 10: [13], [17]-[18], [20].
5. The tentative obiter view in Crown Prosecution Service v P, that the doctrine survived abolition of the presumption, was not accepted. The court concluded that Parliament intended section 34 to abolish the concept of doli incapax as having legal effect for children aged 10 or over: [3], [20]-[21].

• Court of Appeal (Criminal Division): Dismissed the appeal and upheld the preliminary ruling under section 34 of the Crime and Disorder Act 1998 ([2008] EWCA Crim 815).
• Worcester Crown Court: Held that section 34 precluded the appellant from raising lack of capacity to know that the acts were wrong. The appellant then pleaded guilty and was sentenced to a three-year supervision order.