R v JTB

The House of Lords held that section 34 of the Crime and Disorder Act 1998 abolished not only the rebuttable presumption of doli incapax but also the substantive common-law defence in respect of children aged 10 to 13. The court examined the historic common-law distinction between conclusive and rebuttable presumptions of incapacity, considered the mischief which Parliament intended to address and placed weight on the Government's consultative papers, White Paper and Parliamentary debates. Because the legislative history and Parliamentary materials showed an intention to abolish the rule as a whole, the defence was not available and the trial judge's ruling that the defence was not open to the appellant was correct.

The appellant, aged 12 at the time of the offending, pleaded guilty at Worcester Crown Court on 4 October 2007 to multiple counts of causing or inciting a child under 13 to engage in sexual activity contrary to section 13(1) of the Sexual Offences Act 2003. He sought a preliminary ruling that the common-law defence of doli incapax (that a child lacked the capacity to know that his conduct was seriously wrong) was available to him; the trial judge ruled it was not and the appellant pleaded guilty. The appellant unsuccessfully appealed to the Court of Appeal (Criminal Division) and then to the House of Lords.

The central issue before the House was whether section 34 of the Crime and Disorder Act 1998 abolished only the rebuttable presumption that a child aged 10 or over is incapable of committing an offence or whether it also abolished the substantive defence of doli incapax for children aged 10 to 13. The court traced the historical common-law approach to doli incapax and the distinction between conclusive and rebuttable presumptions, noted judicial glosses on the test (for example, "seriously wrong"), and reviewed problematic effects of the rebuttable presumption in modern practice.

The Lords examined extrinsic material: the Home Office consultation paper "Tackling Youth Crime", the White Paper "No More Excuses", Parliamentary debates during passage of the Crime and Disorder Bill, the Government's stated preference for abolition rather than reversal, and unsuccessful amendment attempts to reverse the presumption. Applying Pepper v Hart, they treated these materials as legitimate aids to construction because the statutory language was ambiguous when read alone and the Parliamentary materials were directly relevant. The materials showed that Parliament intended abolition of the rule in the sense of removing both the presumption and the defence. The House therefore dismissed the appeal.

Appeal dismissed. Section 34 of the Crime and Disorder Act 1998 abolished the presumption of doli incapax and the substantive common-law defence for children aged 10 to 13. The House relied on the historical position, the mischief the legislation addressed and Parliamentary materials (permitted as an aid to construction under Pepper v Hart) to reach this conclusion.

Guilty pleas entered at Worcester Crown Court on 4 October 2007. Appeal to the Court of Appeal (Criminal Division) dismissed: [2008] EWCA Crim 815; [2008] 3 WLR 923. Appeal to the House of Lords allowed hearing and judgment: [2009] UKHL 20 (appeal dismissed by the House).