PF v R

Where the common-law presumption of doli incapax applies, the prosecution must prove beyond reasonable doubt that the child knew the conduct was seriously wrong, rather than merely naughty or mischievous. That guilty knowledge requires clear positive evidence independent of the acts constituting the alleged offence. The nature or obvious impropriety of the act cannot itself establish the required knowledge.

A jury must be directed to identify and assess the independent evidence relied upon by the prosecution. It must be told that it cannot convict unless satisfied that this evidence proves the child’s knowledge of serious wrongfulness. A direction which omits that requirement may render a conviction unsafe, particularly where admitted sexual conduct might be characterised as childish experimentation.

The appellant, who was aged between 10 and 14 during the relevant period, was tried in the Crown Court at Norwich for historical sexual offences alleged by two younger sisters. He was convicted on two counts concerning X: indecent assault contrary to section 14(1) of the Sexual Offences Act 1956 and indecency with a girl under 14 contrary to section 1(1) of the Indecency with Children Act 1960. He was sentenced to a community order.

Because the dates of the alleged offences were uncertain, the trial judge directed the jury on the rebuttable common-law presumption of doli incapax. The appeal challenged the adequacy of that direction. The central issue was whether the jury had been told that guilty knowledge had to be proved by evidence independent of the alleged sexual acts.

1. Appeal allowed. The convictions on counts 4 and 6 were unsafe and were quashed.
2. The common-law presumption of doli incapax applied because the appellant had to be treated as under 14 at the relevant time. Section 34 of the Crime and Disorder Act 1998 had abolished the presumption prospectively, but did not apply to these historical offences.
3. Following C (a minor) v DPP [1996] AC 1 and R v M (D) [2016] EWCA Crim 674, the prosecution had to prove beyond reasonable doubt both that the appellant committed the offence and that he knew his conduct was seriously wrong, not merely naughty or mischievous. The latter matter required clear positive evidence independent of the acts alleged.
4. The judge told the jury that it had to be sure the appellant knew the conduct was seriously wrong. However, the directions did not tell it that the Crown relied on alleged bullying and coercion as independent evidence, nor that it had to find that conduct proved before it could infer the necessary guilty knowledge.
5. That omission was material. The appellant admitted some sexual contact with X but described it as mutual childhood exploration. The evidence of coercion and bullying was contested. In those circumstances, the jury had to be directed expressly to distinguish proof of the sexual acts from proof that the appellant knew they were seriously wrong. The court also endorsed the observation in RP v The Queen [2016] HCA 53 that sexual conduct going beyond ordinary experimentation does not itself establish that a child understood its serious moral wrongfulness.

• Court of Appeal (Criminal Division) — Allowed the appeal and quashed the convictions on counts 4 and 6: [2017] EWCA Crim 983.
• Crown Court at Norwich — On 14 September 2016, the appellant was convicted of two historical sexual offences concerning X. On 3 November 2016, he received a six-month community order with concurrent curfew conditions.