DM, R. v (Rev 1)

Where the common-law presumption of doli incapax applies, the prosecution must prove beyond reasonable doubt both the offence and that the child knew the conduct was seriously wrong rather than mere naughtiness or childish mischief. That guilty knowledge requires clear positive evidence independent of the acts charged.

The presumption has no direct application to alleged pre-14 conduct tendered only as bad-character evidence. Such evidence may be admitted where the jury is directed to be sure it occurred and to assess its proper relevance. A failure to give the required independent-evidence direction is material only where a conviction may rest on conduct committed while the defendant was under 14.

The appellant was convicted at the Crown Court at Shrewsbury of three counts of indecent assault arising from alleged historic sexual abuse of his younger half-sister. The prosecution also adduced evidence of two earlier unindicted sexual incidents, said to have occurred when the appellant was under 14, as explanatory and propensity evidence.

On appeal, the appellant challenged the admission of that evidence and the adequacy of the jury directions concerning doli incapax. The date of count 1 potentially permitted a finding that it occurred before his 14th birthday. Counts 2 and 3 did not realistically raise that possibility.

The central issue was whether the directions sufficiently required proof, independent of the acts themselves, that a child under 14 knew the conduct was seriously wrong.

1. The appeal was allowed in part. The conviction on count 1 was quashed. The convictions on counts 2 and 3 were unaffected.
2. The common-law presumption of doli incapax remained applicable to conduct before the statutory abolition took effect, since the abolition was not retrospective. Where the presumption arose, the prosecution had to prove both the offence and, by clear positive evidence separate from the acts charged, that the child knew the conduct was seriously wrong rather than merely naughty or mischievous. The court followed C (a minor) v the Director of Public Prosecutions [1996] 1 AC 1 on that requirement.
3. The presumption did not directly govern the two unindicted incidents tendered as bad-character evidence. The appellant was not charged in respect of them. The Recorder was entitled to admit the evidence under section 101 of the Criminal Justice Act 2003, subject to directing the jury that they must first be sure the incidents occurred and then consider their relevance. The court applied the approach in R v H [2010] EWCA Crim 312: it would have been artificial to exclude evidence of relevant conduct immediately preceding the appellant's 14th birthday.
4. The Recorder's further direction correctly stated that the precise indictment dates were not generally material. It also correctly explained that a pre-14 finding would require proof that the appellant knew the conduct was seriously wrong. However, it omitted the further essential direction that guilty knowledge could not be proved merely by the evidence of the acts themselves. That omission could have affected count 1, but not counts 2 and 3, for which no realistic issue arose about the appellant being under 14.

• Court of Appeal (Criminal Division). In [2016] EWCA Crim 674, the court allowed the conviction appeal only to the extent of quashing count 1.
• Crown Court at Shrewsbury. On 30 July 2015, the appellant was convicted by a jury of three counts of indecent assault. On 4 September 2015, he received concurrent suspended sentences of 12 months' imprisonment.