R v JTB (Appellant) (on appeal from the Court of Appeal (Criminal Division))

Section 34 of the Crime and Disorder Act 1998 abolished both the rebuttable presumption that a child aged 10 or over but under 14 was doli incapax and the underlying defence that the child did not understand that the conduct was seriously wrong.

Although the statutory language was ambiguous in isolation, its meaning was established by the mischief addressed, the contemporary use of “presumption of doli incapax” to encompass both concepts, and the legislative materials. Those materials showed that Parliament rejected retaining the defence with the burden placed on the child.

The appellant committed sexual offences against younger boys when he was 12. He admitted the conduct but said that he had not thought it wrong. The Crown Court ruled that the defence of doli incapax was unavailable, after which he pleaded guilty.

The Court of Appeal dismissed his appeal in [2008] EWCA Crim 815. The issue before the House was whether section 34 of the Crime and Disorder Act 1998 abolished the defence altogether for children aged 10 or over but under 14, or abolished only the rebuttable presumption while leaving a child able to prove the defence.

1. Appeal dismissed unanimously. Lord Phillips delivered the leading speech. Lord Rodger, Lord Carswell, Lord Brown and Lord Mance agreed that section 34 of the Crime and Disorder Act 1998 abolished both the rebuttable presumption and the defence of doli incapax.

2. Per Lord Phillips, the defence and the evidential presumption were conceptually distinct. The defence concerned a child’s capacity to distinguish between right and wrong. The presumption governed whether that capacity was assumed to exist. In modern usage, however, the expression “presumption of doli incapax” commonly embraced both concepts.

3. The language of section 34 was not conclusive when read alone. Its meaning could properly be determined by examining the mischief, the established use of the relevant expression and, under Pepper v Hart [1993] AC 593, the Parliamentary materials.

4. The former rule had produced acquittals because the prosecution lacked separate evidence that children understood conduct which was plainly wrongful to be seriously wrong. The consultation paper and White Paper distinguished abolition from reversal. Abolition would remove both the presumption and the defence; reversal would preserve a defence which the child could prove. Parliament rejected amendments designed to achieve reversal.

5. Lord Carswell considered the rejected amendments especially cogent evidence of legislative intention. Lord Brown agreed that they were the most telling materials. Lord Rodger and Lord Carswell indicated that they might have reached the same construction without Hansard, but accepted that the Parliamentary materials put the matter beyond doubt.

6. The trial judge and the Court of Appeal had therefore correctly held that the appellant could not rely on doli incapax. His convictions stood.

1. House of Lords: Dismissed the appeal unanimously and affirmed that section 34 of the Crime and Disorder Act 1998 abolished both the presumption and the defence of doli incapax.
2. Court of Appeal (Criminal Division): Dismissed the appeal against conviction in [2008] EWCA Crim 815; [2008] 3 WLR 923; [2008] 2 Cr App R 235.
3. Worcester Crown Court: Ruled that the defence of doli incapax was unavailable. The appellant then pleaded guilty to twelve counts.