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1 A.C.
A APPEAL CASES
before
[HOUSE OF LORDS]
C. (A MINOR) APPELLANT
AND
DIRECTOR OF PUBLIC PROSECUTIONS . . RESPONDENT
A off, leaving the crowbar in the chain. One officer chased the defendant,
who climbed over a wall into a nursing home where he was arrested by
another officer. The motor cycle was damaged. The leads to the coil and
battery had been detached, and the mounting dislodged.
The defendant was 12 years old at the time of the incident. It was
accordingly submitted to the justices, as it has been submitted to us, that
the law presumed him to be doli incapax. Such a presumption applies, it
" is said, in any case where a defendant to a criminal charge is between the
ages of 10 and 14 at the time of the alleged offence. Below the age of 10,
of course, there is an absolute presumption that a child is incapable of
committing a crime. Thereafter until he is 14, so the submission goes,
there is a rebuttable presumption that he does not know that his act is
"seriously wrong" as opposed to "merely naughty." The presumption must
Q be rebutted by positive proof adduced by the prosecution that in fact he
knew full well that what he did was seriously wrong.
In the present case it was argued before the justices that the prosecution
had adduced no such proof. In their succinct and helpful case, the justices
say:
"We were of the opinion that the [defendant] knew what he had
T-) done was seriously wrong. The damage done to the bike was
substantial. The [defendant] and his accomplice ran from the police
officers leaving the crowbar behind. We drew the inference from these
two facts that he knew he was in serious trouble because he had done
something seriously wrong."
Accordingly they convicted and fined the defendant.
E In this court it has been submitted that the justices were not entitled
to draw any such inference. It is said that the act of running away was
merely equivocal: as consistent with an appreciation that what he had
done was naughty as with knowledge that it was seriously wrong. The
damage to the bike, so it is argued, cannot really carry the matter any
further forward.
If this submission is right, it means that the defendant should have
^ been acquitted although he was caught in the act of a thoroughly dishonest
enterprise. There can be no doubt but that he and his companion intended
to drive the motor cycle away if they could.
Mr. Nicol for the defendant has relied on a long line of authority in
which this presumption has been applied by the courts. The most recent
case is A. v. Director of Public Prosecutions [1992] Crim.L.R. 34. The
Q appellant, aged 11, had thrown bits of brick at a police vehicle. He was
charged with an offence contrary to section 5(1)(a) of the Public Order
Act 1986. The justices found that he appeared to be a boy of normal
development for his age, that his act was of such a nature that a boy of
that age would have understood it to be unlawful and that his action in
running away led to the inference that he was seeking to avoid
apprehension. On his appeal, this court held that the justices were not
" entitled to conclude merely from his appearance that he was normal in the
respects necessary for the purposes of ascertaining criminal responsibility,
that the test was not knowledge of unlawfulness but knowledge that what
he did was seriously wrong, beyond any measure of mere naughtiness, and
6
Laws J. C. (A Minor) v. D.P.P. (Q.B.D.) [1996]
that his act of running away was not by itself sufficient to entitle the A
justices to find that the presumption had been rebutted. Bingham L.J.
reached this conclusion "with considerable reluctance," saying that:
"children have the benefit of the presumption which in this case and some
others seems to me to lead to results inconsistent with common sense."
Mr. Parry-Jones for the prosecutor has submitted that the present case
ought to be distinguished on its facts from A. v. Director of Public
Prosecutions. The case before us is one of dishonesty; the other was one
of public disorder throwing stones, an act which can much more readily
be assimilated to mere naughtiness as opposed to serious wrong. Here, he
submits, what the defendant did so obviously exceeded mere naughtiness
that the justices were entitled to infer, from the defendant's acts alone,
that he knew he had committed a serious wrong. I do not understand him
to dispute the proposition that the act of running away, taken in isolation, C
is equivocal; accordingly his submission amounts to this proposition, that
the presumption may be rebutted by the very acts constituted by the
alleged offence, without any supervening evidence from the prosecution
that the child appreciated that what he did was seriously wrong.
On the face of it, this approach has much to commend it as a matter
of common sense. But it would mean that in a serious case, perhaps of D
rank dishonesty, perhaps of grave violence, the facts should be allowed to
speak for themselves as regards the child defendant's state of mind. That,
however, produces the consequence that in such a case the child must
have known the moral quality of his act, though there may be no evidence
as to his actual state of knowledge. This would itself amount to a
presumption in the graver class of case that the child appreciated that
what he did was seriously wrong. That, however, would be inconsistent
with the presumption that he has no such knowledge. The cases tend to
demonstrate that whenever this latter presumption is in play, the
prosecution must prove the child's state of mind by positive evidence. In
Reg. v. Smith (Sidney) (1845) 1 Cox C.C. 260, in which a 10-year-old boy
was charged with setting fire to a hayrick, the short report shows that p
Erie J. said to the jury:
"Where a child is under the age of 7 years"I interpolate, that
was then the age below which there could be no criminal
responsibility"the law presumes him to be incapable of committing
a crime; after the age of 14, he is presumed to be responsible for his
actions, as entirely as if he were 40; but between the ages of 7 and 14, Q
no presumption of law arises at all, and that which is termed a
malicious intenta guilty knowledge that he was doing wrongmust
be proved by the evidence, and cannot be presumed from the mere
commission of the act."
In Rex v. Gorrie (1919) 83 J.P. 136 a boy under 14 was charged with
manslaughter at the Central Criminal Court. He had stabbed another boy H
with a penknife. There was no question of his intending to kill the boy,
but the knife was dirty, and the victim died from septic poisoning. The
defence was accident; Salter J. directed the jury that if the stab was
7
1 A.C. C. (A Minor) v. D.P.P. (Q.B.D.) Laws J.
A intentional, that would be manslaughter, but made it clear that the jury's
verdict depended upon a further point. He said:
"if the prosecution sought to show that he was responsible although
under 14, they must give them very clear and complete evidence of
what was called mischievous discretion: that meant that they must
satisfy the jury that when the boy did this he knew that he was doing
r> what was wrongnot merely what was wrong, but what was gravely
wrong, seriously wrong."
In J.B.H. andJ.H. (Minors) v. O'Connell [1981] Crim.L.R. 632 two boys
were convicted of burglary and malicious damage to property. They gave
no evidence and a submission of no case to answer was made. The short
report indicates that the justices considered that the boys knew that what
Q they were doing was wrong, because of the deliberate nature of the acts in
question:
"The magistrates said that, that being no evidence of the boys
upbringing or mental capacity, they had treated them as ordinary
boys of their ages."
The Divisional Court quashed the conviction, holding that:
D "the prosecution had to rebut the presumption that they did not
know, and this involved calling evidence that they were of normal
mental capacity. It was not the duty of the defence to disprove the
presumption that the boys were ordinary boys of their ages. This was
a common law rule, and although there was no injustice done by the
magistrates' decision, it could not stand."
E It is to be noted that Forbes J. is recorded in the Criminal Law Review
commentary on the case as having said:
"in these days of universal education from the age of five it seems
ridiculous that evidence of some mischievous discretion should be
required if a case of malicious damage is committed as it was in this
case."
F
In I.P.H. v. Chief Constable of South Wales [1987] Crim. L.R. 42, in
which an 11-year-old was convicted with others of criminal damage to a
motor van, the prosecutor submitted that the nature of the criminal
activity was such "that any child of such an age would know that it was
wrong and that there was therefore sufficient evidence of a mischievous
disposition . . . " The conviction was quashed. The court held that,
G although it was not necessary in all cases to call positive evidence to show
that the youngster is a normal child since the manner in which a child
behaves when confronted with the allegation against him may itself
indicate that he knew that what he was doing was seriously wrong,
nevertheless there was no material in that case on which the justices could
find that the defendant had sufficient knowledge: "His answer to the police
indicated no more than that he appreciated the consequence of his
conduct."
There are other cases in which the courts have held that there must be
discrete evidence of the child defendant's state of knowledge. In B. v. R.
(1958) 44 Cr.App.R. 1, where the defendant was charged at a juvenile
8
Laws J. C. (A Minor) v. D.P.P. (Q.B.D.) |1996|
court with housebreaking and larceny, Lord Parker C.J., at pp. 3-4, A
placed emphasis on the evidence before the court that the child:
"had apparently every opportunity in life, coming from a respectable
family and properly brought up, who, one would think, would know
in the ordinary sense the difference between good and evil and what
he should do and what he should not do."
He then contrasted those background circumstances with the events said "
to constitute the crime. The case was described, at p. 3, by Lord
Parker C.J. as perhaps rather "thin." At all events this is another instance
where evidence concerning facts other than the crime itself was regarded
as important for the purposes of rebutting the presumption.
In Reg. v. B. [1979] 1 W.L.R. 1185 (one of only two authorities cited
to us which were decided by the Court of Appeal) the question was Q
whether evidence of a child's previous convictions might be admitted to
rebut the presumption. The court held that it was properly admitted, but
in the course of his judgment Lord Widgery C.J. referred to F. v. Padwick,
The Times, 24 April 1959, in which Lord Parker C.J. had said:
"Before they rule in a case like this the justices should hear
evidence of the boy's home background and all his circumstances. In ^
a rotten home, what is more likely than that a child is brought up
without knowledge of right and wrong?"
It is true that these observations fell during the course of argument, but
they are consistent with the line taken in the other authorities.
J.M. (A Minor) v. Runeckles (1984) 79 Cr.App.R. 255 concerned a
13-year-old girl who had stabbed another girl with a broken milk bottle. g
The justices held that the presumption was rebutted. It is true that they
relied in part on the acts constituting the crime, but they also had regard
to the appellant's statement under caution which she herself had dictated
and which bore a caption written in her own hand; and they concluded
from those materials that her mental age was no less than her
chronological age. The Divisional Court upheld the conviction. It is not a
case in which the presumption was rebutted simply by the facts of the F
crime.
In Reg. v. Coulbum (1988) 87 Cr.App.R. 309 the applicability of the
presumption had been entirely overlooked at the trial at first instance, in
which the appellant, aged 13, had been convicted of murder. The Court
of Appeal (Criminal Division) accepted that the issue as to capacity was
fundamental, and had not at all been dealt with at trial; however the Q
proviso was applied. Watkins L.J. said, at pp. 315-316:
"[The appellant's] answers to questions, particularly those put in
cross-examination, showed that he understood that if he deliberately
struck with a knife not only would it cause serious injury but it would
be going much further than was justified in a fist fight. . . . Moreover
the jury had been warned by the judge that, when considering whether
or not the appellant had the intent to kill or do really serious harm,
they should remember that they were dealing with the mind of a
13-year-old boy. . . . The jury found that the stabbing was deliberate
and was done with intent to cause serious bodily harm."
9
1 A.C. C. (A Minor) v. D.P.P. (Q.B.D.) Laws J.
A The court held that the jury must have found, had the issue of capacity
been expressly left to them, that the appellant knew that what he was
doing went beyond mere naughtiness. This case may at first glance be seen
as one in which the court accepted that the facts might speak for
themselves. However, it needs to be treated with caution. It was a proviso
case; so that in truth it is authority for no more than the proposition that
on the facts the court considered that no miscarriage of justice had
actually occurred, within the meaning of the words in section 2(1) of the
Criminal Appeal Act 1968 which enact the proviso. Secondly, the court
placed specific reliance on the appellant's own answers in cross examination
showing that he knew full well that a deliberate blow with a knife went
much further than something that might be justified in an ordinary fist
fight. The case cannot be regarded as authority for the general proposition
C that, in an adjudication where the presumption is in play, the facts may
be left to speak for themselves if the offence is serious enough.
The requirement of specific evidence to rebut the presumption, which
is generally supported in the cases, is consistent with Blackstone's
treatment of the issue in Blackstone's Commentaries on the Laws of
England, Book IV, 1st ed. (1769), pp. 23-24:
D "But by the law, as it now stands, and has stood at least ever
since the time of Edward the Third, the capacity of doing ill, or
contracting guilt, is not so much measured by years and days, as by
the strength of the delinquent's understanding and judgment. For one
lad of eleven years old may have as much cunning as another of
fourteen; and in these cases our maxim is, that 'malitia supplet
aetatem.'. . . under fourteen, though an infant shall be prima facie
adjudged to be doli incapax; yet if it appear to the court and jury,
that he was doli capax, and could discern between good and evil, he
may be convicted and suffer death. . . . But, in all such cases, the
evidence of that malice, which is to supply age, ought to be strong
and clear beyond all doubt or contradiction."
Crim. L.R. 34have looked upon the rule with increasing unease and A
perhaps rank disapproval.
Aside from anything else, there will be cases in which in purely
practical terms, evidence of the kind required simply cannot be obtained.
The child defendant may have answered no questions at the police station,
as is his right. He may decline to give evidence in court. That is his right
also. He and his parents, or perhaps his schoolteachers, may well not co-
operate with any prosecution attempt to obtain factual material about his
background which may be adverse to him. But, quite apart from such
pragmatic considerations, the presumption is in principle objectionable. It
is no part of the general law that a defendant should be proved to
appreciate that his act is "seriously wrong." He may even think his crime
to be justified; in the ordinary way no such consideration can be prayed
in aid in his favour. Yet in a case where the presumption applies, an C
additional requirement, not insisted upon in the case of an adult, is
imposed as a condition of guilt, namely a specific understanding in the
mind of the child that his act is seriously wrong. This is out of step with
the general law.
The requirement is also conceptually obscure. What is meant by
"seriously wrong?" It cannot mean "against the law"there is no trace in ^
the authorities that the presumption is intended to displace the general
rule that ignorance of the law affords no defence. One would suppose,
therefore, that what must be proved is that the child appreciated the moral
obliquity of what he was doing. Yet in J.M. (A Minor) v. Runeckles,
79 Cr.App.R. 255, 260, Robert Goff L.J. said:
"I do not however feel able to accept the submission that the criterion
in cases of this kind is one of morality. . . . the prosecution has to
prove that the child knew that what he or she was doing was seriously
wrong. The point is that it is not enough that the child realised that
what he or she was doing was naughty or mischievous."
A Divisional Court has the power to depart from its own previous decisions:
Reg. v. Greater Manchester Coroner, Ex parte Tal [1985] Q.B. 67. The rule
is that the court will follow a decision of a court of equal jurisdiction
unless persuaded that it is clearly wrong. It is, perhaps, not plain what is
added by the adverb "clearly:" it can mean no more in my view than that
judicial comity and the obvious need for conformity in decisions of the
higher courts create a legitimate pressure in favour of consistent results at
" the Divisional Court level; and this would apply also to the decisions of
single judges sitting in the Crown Office List. So understood, Tal's case
does not establish a rule of stare decisis, since such a rule entails the
proposition that the second court has not the legal authority to depart
from what the first court said.
In the present case, all the earlier decisions proceeded upon the
Q unargued premise that the presumption now in question was undoubtedly
part of the fabric of English criminal law. To discard it, therefore, does
not involve any disagreement with the express reasoning in the cases.
I would hold that there is not the least impediment upon our departing
from the earlier Divisional Court authorities so far as, by implication,
they upheld the existence of this presumption (as they plainly did): to do
so is no affront to any principle of judicial comity, far less the doctrine of
D precedent.
The two cases in the Court of Appeal proceeded upon the same
unargued premise. The presumption was simply assumed to apply. No
doubt in general this court is bound by decisions of the Court of Appeal
(Criminal Division). But the question whether this presumption is or
should remain part of our law has never, so far as has been ascertained,
n fallen for distinct argument as an issue requiring that court's specific
determination. That being so, in my view this court is entitled to depart
from the premise which lay behind the Court of Appeal's two decisions;
to do so does not involve a departure from any adjudication which that
court was required to make upon an issue in dispute before it.
In those circumstances, I would hold that the presumption relied on
by the defendant is no longer part of the law of England. The appeal
F should therefore be dismissed. Given the basis of this conclusion, it is not
apt to provide an answer to the question framed in the case stated.
MANN L.J. For the reasons given in the judgment which has been
circulated this appeal will be dismissed.
G
Appeal dismissed.
Legal aid taxation of defendant's costs.
Certificate under section 1(2) of the
Administration of Justice Act 1960
that a point of law of general public
importance was involved in the
" decision, namely: "Whether there
continues to be a presumption that a
child between the ages of 10 and 14
is doli incapax and, if so, whether
14
C. (A Minor) v. D.P.P. (Q.B.D.) |1996|
Two questions arise. (1) Did the Divisional Court have the power to A
abolish the rule? (2) Were the policy arguments put forward for abolition
as cogent as the court thought they were? Laws J. misunderstood the rules
of stare decisis which bind the Divisional Court when exercising its
jurisdiction in criminal cases on appeals from justices by way of case
stated. It is clear from Reg. v. Greater Manchester Coroner, Ex parte Tal
[1985] Q.B. 67 that in such case the rule is identical to that applied by the
Court of Appeal (Criminal Division), namely, that it is bound by previous
decisions save in four exceptional cases; (i) of conflicting decisions,
(ii) supersession of a House of Lords' decision; (iii) previous decisions per
incuriam (the exceptions stated in Young v. Bristol Aeroplane Co. Ltd.
[1944] K.B. 718) and (iv) where the court is convinced that a departure
from authority is necessary in the interest of the appellant, in a matter
touching upon the liberty of the subject: see Ex parte Tal [1985] Q.B. 67, Q
79c and Reg. v. Spencer [1985] Q.B. 771, 778E-779E. The more permissive
rule cited by Laws J. [1994] 3 W.L.R. 888, 897E relates only to the
supervisory jurisdiction of the Divisional Court triggered by an application
for judicial review: see Ex parte Tal [1985] Q.B. 67, 8 0 G - 8 1 D .
The House will contemplate the abrogation of a common law rule
protective of defendants in criminal cases only where (a) the legal basis
for that rule is open to some doubt, or it has suffered progressive D
emasculation, so that its eventual abolition by the judiciary is reasonably
foreseeable; (b) the rule is anachronistic, not in the sense that it is old or
a product of different times, but because its operation is out of harmony
with current law and practice; (c) the rule embodies a social standard
which is repugnant to right thinking persons or offensive to the consensus
of informed opinion; and (d) abolition will not encroach on the proper
field of the legislature: see Reg. v. R. [1992] 1 A.C. 599, 610-611, 617, 623;
C.R. v. United Kingdom (Application No. 20190192) (unreported), 27 June
1994; Reg: v. Howe [1986] Q.B. 626, 637H; [1987] A.C. 417, 430c, 433H,
434A, 4 3 6 E - F , 4 3 7 F - H , 443G, 4 4 9 H - 4 5 0 D , 4 5 4 H ^ 1 5 5 C ; Reg. v. Gotts [1992]
2 A.C. 412, 422F-G, 440-441, 442; Director of Public Prosecutions for
Northern Ireland v. Lynch [1975] A.C. 653, 695, 700; Reg. v. Knuller
(Publishing, Printing and Promotions) Ltd. [1973] A.C. 435, 473F-474G, F
489B-H and Reg. v. Kearley [1992] 2 A.C. 228, 2 4 9 G - 2 5 1 H , 2 7 7 E - 2 7 8 C .
Further, the House of Lords will not necessarily overrule long-standing
law, even although it holds that it is wrong: see Foakes v. Beer [1884]
9 App.Cas. 605, 612, 624, 628-630.
As to policy, the doli incapax rule is part of a web of provisions for
dealing with young people in trouble, and piecemeal changes are Q
undesirable in the absence of research demonstrating that it has anti-social
effects, much graver than an occasional acquittal which appears repugnant
to common sense. The fact that such research has not, so far as is known,
been forthcoming may be an indication that the rule is serving the
generally accepted purpose of avoiding treating young children as criminals
unless their criminality is serious or persistent. It reflects the sense of the
"dwindling rights" approach in Gillick v. West Norfolk and Wisbech Area "
Health Authority [1986] A.C. 112 to the child's developing maturity and
intelligence, and the expectation in Reg. v. D. [1984] A.C. 778 that it
would not frequently occur that a child under 14 years would have
17
1 A.C. C. (A Minor) v. D.P.P. (H.L.(E.))
included the detaching of the leads to the coil and battery and the A
dislodging of the mounting. There was, as your Lordships have been told,
no evidence of any admission or statement by the appellant. At the
conclusion of the prosecution's case the appellant's solicitor called no
evidence but submitted that the prosecution had not adduced sufficient
evidence to prove that the appellant, who was born on 29 June 1979 and
was therefore just under 13 years old at the time of the alleged offence,
had guilty knowledge and knew that what he was doing was seriously "
wrong as opposed to merely naughty or mischievous.
As the case stated reveals, the justices found that the appellant knew
that what he had done was seriously wrong, observing that the damage
done to the motor cycle was substantial and that the appellant and his
accomplice ran from the police, leaving the crowbar behind. They drew
from these facts the inference that the appellant "knew he was in serious Q
trouble because he had done something seriously wrong." They therefore
convicted the appellant and fined him 15 units at 4, payable by his
mother, who was also bound over to ensure his future good behaviour.
The question in the case stated for the opinion of the High Court was:
"whether or not there was any, or sufficient, evidence to justify the
finding of fact made by us, that this particular defendant knew that ~
what he was doing was seriously wrong."
On the hearing of the appeal the Divisional Court, constituted by
Mann L.J. and Laws J., of its own motion took a point which had not
been raised either in that court or in the youth court by either party,
namely, that it was a matter for consideration whether the presumption of
doli incapax (which I shall refer to as "the presumption") had outlived its g
usefulness and should no longer be regarded as part of the common law.
The appeal is reported ante, pp. 4G et seq.
Delivering what in fact if not in form was the judgment of the court,
Laws J. referred to the appellant's submission that the presumption
applied and had not been rebutted and stated, ante, p. 5:
"If this submission is right, it means that the defendant should
have been acquitted although he was caught in the act of a thoroughly
dishonest enterprise. There can be no doubt but that he and his
companion intended to drive the motor cycle away if they could."
The judge then reviewed, to use his own words, "a long line of authority
in which this presumption has been applied by the courts" and continued,
ante, pp. 9-10: Q
"The requirement of specific evidence to rebut the presumption,
which is generally supported in the cases, is consistent with
Blackstone's treatment of the issue in Blackstone's Commentaries on
the Laws of England, Book IV, 1st ed. (1769), pp. 23-24: 'But by the
law, as it now stands, and has stood at least ever since the time of
Edward the Third, the capacity of doing ill, or contracting guilt, is
not so much measured by years and days, as by the strength of the
delinquent's understanding and judgment. For one lad of eleven years
old may have as much cunning as another of fourteen; and in these
cases our maxim is, that "malitia supplet aetatem." . . . under
23
1 A.C. C. (A Minor) v. D.P.P. (H.L.(E.)) Lord Lowry
Q That question was therefore left unanswered since dispensing with the
presumption had the effect of affirming the result, albeit not the decision,
in the lower court.
My Lords, Mr. Robertson, for the appellant, has argued cogently that
the Divisional Court was not justified in holding that the presumption is
"no longer part of the law of England." He referred to Hale, The History
of the Pleas of the Crown (1778 ed.) and Blackstone's Commentaries on the
" Laws of England and to up-to-date editions of Russell on Crime, 12th ed.
(1964), vol. 1, Kenny's Outlines of Criminal Law, 19th ed. (1966), Smith
and Hogan, Criminal Law, 7th ed. (1992), Halsbury's Laws of England,
4th ed. reissue, vol. 11(1) (1990) and Cross and Ashworth, The English
24
Lord Lowry C. (A Minor) v. D.P.P. (H.L.(E.)) 119961
The intended effect of the draft was, therefore, to get rid of the
presumption and to let a child pass from complete criminal irresponsibility
26
Lord Lowry C. (A Minor) v. D.P.P. (H.L.(E.)) [1996J
A In the same case, when it had reached your Lordships' House, Lord
Hailsham of St. Marylebone L.C., speaking of duress, said [1987] A.C.
417, 430:
"It has always been possible for Parliament to clear up this branch of
the law (or indeed to define more closely the nature and extent of the
availability of duress as a defence). But Parliament has conspicuously,
g and perhaps deliberately, declined to do so."
In Reg. v. Knuller (Publishing, Printing and Promotions) Ltd, [1973]
A.C. 435 Lord Simon of Glaisdale made two points which are most
relevant to the present appeal. He observed, at p. 489c, that the House
was concerned with highly controversial issues on which there was every
sign that neither public nor parliamentary opinion was settled. Then, at
Q p. 489E, he said that Parliament had had several opportunities to amend
the law but had not taken them. He quoted the words used by Lord Reid
in Shaw v. Director of Public Prosecutions [1962] A.C. 220, 275, when he
said: "Where Parliament fears to tread it is not for the courts to rush in."
Again, Lord Simon in Director of Public Prosecutions for Northern
Ireland v. Lynch [1975] A.C. 653, 696A referred to "matters of social policy
. . . which the collective wisdom of Parliament is better suited to resolve."
D In my dissenting speech in Reg. v. Gotts [1992] 2 A.C. 412, in which
by a majority your Lordships held that a plea of duress was of no avail in
defence to a charge of attempted murder, I drew attention, at p. 440, to
two statements contrasting the functions of Parliament and the judges. In
Abbott v. The Queen [1977] A.C. 755 Lord Salmon said, at p. 767:
"Judges have no power to create new criminal offences; nor in their
E Lordships' opinion, for the reasons already stated, have they the
power to invent a new defence to murder which is entirely contrary
to fundamental legal doctrine accepted for hundreds of years without
question. If a policy change of such a fundamental nature were to be
made it could, in their Lordships' view, be made only by Parliament.
Whilst their Lordships strongly uphold the right and indeed the duty
of the judges to adapt and develop the principles of the common law
in an orderly fashion they are equally opposed to any usurpation by
the courts of the functions of Parliament."
And in Reg. v. Howe [1987] A.C. 417 Lord Mackay of Clashfern, speaking
of judicial legislation said, at pp. 449-450:
"In approaching this matter, I look for guidance to Lord Reid's
G approach to the question of this House making a change in the
prevailing view of the law in Myers v. Director of Public Prosecutions
[1965] A.C. 1001, 1021-1022, where he said: 'I have never taken a
narrow view of the functions of this House as an appellate tribunal.
The common law must be developed to meet changing economic
conditions and habits of thought, and I would not be deterred by
expressions of opinion in this House in old cases. But there are limits
to what we can or should do. If we are to extend the law it must be
by the development and application of fundamental principles. We
cannot introduce arbitrary conditions or limitations: that must be left
to legislation. And if we do in effect change the law, we ought in my
28
Lord Lowry C. (A Minor) v. D.P.P. (H.L.(E.)) [1996)
opinion only to do that in cases where our decision will produce some A
finality or certainty.'" (Emphasis supplied.)
Donaldson L.J. concluded that the presumption was part of the substantive
law and that there was an error of law by the magistrates.
Forbes J., on whose criticisms of the doctrine Laws J. relied, said:
g "I agree. That children between 10 and 14 are presumed to be
exempt from criminal responsibility unless this presumption is
rebutted by some evidence that they did the criminal act not only
with mens rea but with a mischievous discretion is a common law
rule that goes back certainly as far as Hale. No doubt it was a
sensible and merciful rule in Hale's days, but in these days of
universal education from the age of five it seems ridiculous that
C evidence of some mischievous discretion should be required if a case
1
of malicious damage is committed as it was in this case. But on the
principle of stare decisis the common law rule, supported as it is by
recent cases, is binding on this court, and I agree that the justices
appear to have reversed the presumption and therefore this conviction
cannot stand."
D
The commentary of Professor Birch [1981] Crim.L.R. 632, 633 is, as
always, both interesting and perceptive. I quote a short extract:
"Evidence that any normal child of the accused's age would inevitably
realise that his act was so wrong might be thought to be sufficient to
rebut the presumption in the absence of some evidence of abnormality.
c To place an evidential burden on the defence in such circumstances is
consistent with the rules concerning proof of abnormality generally,
but may overlook the degree of preoccupation with the state of mind
of the individual which the courts exhibit in this area, often drawing
their inferences from evidence of the upbringing, background and
personal characteristics of the child in a way reminiscent of the
inquiries conducted to decide whether a child can be sworn.
F Nevertheless it is submitted that the imposition of such a burden
would be justified, and that the criticism voiced by Forbes J. that 'in
these days of universal education from the age of five it seems
ridiculous that evidence of some mischievous discretion should be
required if a case of malicious damage is committed as it was in this
case' cannot be said to be without foundation."
I have referred to this case both for its critical comments and for the
discussion of the burden of proof which it contains.
I.P.H. v. Chief Constable of South Wales [1987] Crim.L.R. 42 shows
the Divisional Court (Woolf L.J. and Simon Brown J.) again emphasising
the need for the prosecution to rebut the presumption and quashing the
conviction of an 11-year-old boy who had done serious and deliberate
H damage to a motor van. Again, your Lordships have been provided with
a transcript. As in J.B.H. and J.H. (Minors) v. O'Connell, the court
refused to countenance, as a means of rebutting the presumption, the
"sensible" argument that any child of the defendant's age would know
32
Lord Lowry C. (A Minor) v. D.P.P. (H.L.(E.)) |1996|
that he was doing wrong. Woolf L.J., after citing J.M. (A Minor) v. A
Runeckles (1984) 79 Cr.App.R. 255, said:
"Having regard to that authority and to those passages from the
judgment contained in that case, the reasoning of which I would
adopt, it is clear that what the magistrates have to ask themselves
before they can find the defendant guilty, if he or she is of the age
between 10 and 14, is: 'Is there evidence before us on which we can R
be satisfied that this particular defendant appreciated that what was
being done was seriously wrong and went beyond mere naughtiness
or childish mischief?'"
Then, having referred to J.B.H. and J.H. (Minors) v. O'Connell as an
authority that it is not for the defendant to disprove the presumption that
he is a normal boy of his age, he continued: ^
"That case is certainly not authority for the proposition that in all
cases it is necessary to call positive evidence to show that a youngster
is a normal child of his age. As appears from the Runeckles case
itself, the manner in which a child behaves when being confronted by
the police may in itself indicate that the child knew that what he or
she was doing was seriously wrong as, for example, running away (as
did the appellant in the Runeckles case). However, in this case there
was no material before the justices which indicated that this appellant
knew that what he was doing was wrong."
He concluded that it was:
"quite clear from the justices' reasoning that they were approaching
the matter on quite the wrong basis. In the absence of any evidence c
to indicate that he knew that what he was doing was wrong, they
assumed that was the position. Although they stated that they had
clear evidence that the appellant knew that he was doing wrong, they
were mistaken in so saying. In this case, there had to be some
material before the justices which would have rebutted the
presumption which applies. In fact, there was no such evidence."
F
Simon Brown J., concurring, made his point succinctly:
"I see nothing in the evidence here to have enabled the justices to
conclude that the appellant child was of a mental age not less than
his actual age. They were not entitled to assume that fact in the
absence of evidence, which I apprehend to have been the approach
which they in fact adopted. In any event, even if the child was of a
mental age not less than his actual age, I question whether the ^
admission that he knew that his act would cause damage could
possibly be sufficient evidence to found a conclusion that he knew
that his action was seriously wrong."
As Professor Birch pointed out in her commentary [1987] Crim.L.R. 43,
to seek to rely on the presumption of normality would be to undermine
the object of the presumption of doli incapax itself.
The other case in which that presumption was criticised is A. v.
Director of Public Prosecutions [1992] Crim.L.R. 34, which was noted by
Laws J., ante, pp. 5F-6A, where Bingham L.J. spoke of "results inconsistent
33
1 A.C. C. (A Minor) v. D.P.P. (H.L.(E.)) Lord Lowry
A with common sense." The full sentence in which these words were used
reads as follows:
"I can understand very well the arguments against treating children
of this age as criminals and for extending the scope of care
proceedings but the statutory provisions to that end have not yet, as
I understand, been implemented, so criminal charges may still be laid,
R but children have the benefit of the presumption which in this case
and some others seems to me to lead to results inconsistent with
common sense."
My Lords, I think it is time that I took a look at the reasons given by
Laws J. for his conclusions, not for the purpose of refuting them, but to
show that they do not conclude the matter.
1. It is true that there is (and has been for a considerable time)
C compulsory education and, as the judge said, perhaps children now grow
up more quickly. But better formal education and earlier sophistication
do not guarantee that the child will more readily distinguish right from
wrong.
2. The presumption is "out of step with the general law." True enough,
but the general law was not meant to apply without qualification to
rj children under 14.
3. I agree that the phrase "seriously wrong" is conceptually obscure,
and that view is confirmed by the rather loose treatment accorded to the
doli incapax doctrine by the textbooks, but, when the phrase is contrasted
with "merely naughty or mischievous," I think its meaning is reasonably
clear.
4. The rule is said to be illogical because the presumption can be
E rebutted by proof that the child was of normal mental capacity for his
age; this leads to the conclusion that every child is initially presumed not
to be of normal mental capacity for his age, which is absurd. This
argument involves a point which I must deal with when considering the
second part of the certified question (how to prove that the child is doli
capax), but at this stage I will focus on the illogicality. We start with a
p benevolent presumption of doli incapax, the purpose of which was to
protect children between 7 (now by statute 10) and 14 years from the full
rigour of the criminal law. The fact that the presumption was rebuttable
has led the courts to recognise that the older the child (see B. v. R.,
44 Cr.App.R. 1, 3) and the more obviously heinous the offence, the easier
it is to rebut the presumption. Proof of mental normality has in practice
(understandably but perhaps not always logically) been largely accepted
G as proof that the child can distinguish right from wrong and form a
criminal intent. The presumption itself is not, and never has been,
completely logical; it provides a benevolent safeguard which evidence can
remove. Very little evidence is needed but it must be adduced as part of
the prosecution's case, or else there will be no case to answer.
5. The need for the prosecutor to rebut the presumption may give rise
to injustice where the rebuttal involves proving previous convictions.
" I remind your Lordships of the relevant passage in the judgment, ante,
pp. 10-11:
"the presumption's application may also give rise to the risk of
injustice. In Reg. v. B. [1979] 1 W.L.R. 1185, to which I have already
1 A.C. 1996-2
34
Lord Lowry C. (A Minor) v. D.P.P. (H.L.(E.)) 119961
A Unfortunately, as I have said, the report of the case does not show what
the previous convictions were for. The judge's observations would exclude
evidence of a conviction of assault or riding a bicycle on the footpath but
not necessarily a conviction for stealing, which would not be admitted
under the similar facts rule. Such a conviction could well be relevant to
prove "knowledge," but it would be inadmissible (though very prejudicial)
to prove the primary facts. What the report does reveal is that the defence
abandoned the presumption once the judge had ruled against them.
Therefore I would infer that there was a working defence on the primary
facts. Assuming that the previous convictions were allowed to be put in
evidence but were not admissible under the similar facts rule, it would
clearly have been in. vain for the judge to tell the jury to disregard them
when considering the primary issue but then to take account of them if
Q they had to decide the "knowledge" issue.
Lord Widgery, C.J., delivering the judgment of the Court of Appeal
said, at p. 1187:
"The judge in clear terms was taking the view that, where the
presumption applies, the prosecution can seek to remove the effect of
the presumption and to call evidence to that effect. A moment's
rj thought will make it clear that that is so. If the presumption is
allowed to stand and the prosecution did not call evidence to rebut
it, then, at the close of the prosecution case, there would be a ruling
that there was no case to answer. It seems to us, as it seemed to the
judge below, that to guard against that ridiculous result, one must
accept the fact that the prosecution can call relevant evidence which
is relevant on the issue of the young man's capacity to know good
E from evil."
The cases cited in Reg. v. B. were concerned with evidence of the
defendant's general background and, so far as the above passage deals
with that kind of evidence, I freely concur in what was said. But I do not
think it right (assuming that to be the position) to admit non-similar fact
evidence which would be inadmissible on issue 1 for the purpose of
^ proving the prosecution's case on issue 2. If the prosecution's case must
sometimes fail because some or all of the probative evidence cannot be
given, that is not a unique situation and it must be borne with fortitude
in the interests of fairness to the accused. To hold a split trial, dividing
issues 1 and 2 would not be practicable and such a procedure would soon
conduce to the inference at an early stage of the trial that evidence of
Q previous convictions will be tendered if issue 1 is decided against the
accused. I hope your Lordships will forgive me for devoting some time to
the previous convictions argument, which appears to me to involve a
general principle and to be something which will concern trial judges for
so long as they have to cope with the doli incapax doctrine.
6. It has also been said that the rule is divisive because it bears hardly
on perhaps isolated acts of wrongdoing done by children from "good
". homes," and also perverse because it absolves children from "bad homes"
who are most likely to commit "criminal" acts. One answer to this
observation (not entirely satisfying, I agree) is that the presumption
contemplated the conviction and punishment of children who, possibly by
36
Lord Lowry C. (A Minor) v. D.P.P. (H.L.(E.)) |1996|
reform. But, apart from this feature, what was done in Reg. v. R. seems \
to me very different from what the respondent asks your Lordships to do
in the present case. Reg. v. R. dealt, in the first place, with a specific act
and not with a general principle governing criminal liability. It was based
on a very widely accepted modern view of marital rape and it derived
support from a group of up-to-date decisions. The principle rejected in
Reg. v. R. stood on a dubious legal foundation. And, in contrast to the
present case, a definite solution could be, and was, achieved. Moreover, "
unlike the presumption here, Hale's doctrine had not been given the stamp
of legislative, judicial, governmental and academic recognition. Certainly
the abolition of the presumption could never in the present case be
described as "the removal of a common law fiction."
Clearly then, in my view, the presumption, for better or worse, applies
to cases like the present. I turn, therefore, to consider what must be Q
proved in order to rebut the presumption and by what evidence. This
inquiry is embraced by the second part of the certified question.
A long and uncontradicted line of authority makes two propositions
clear. The first is that the prosecution must prove that the child defendant
did the act charged and that when doing that act he knew that it was a
wrong act as distinct from an act of mere naughtiness or childish mischief.
The criminal standard of proof applies. What is required has been D
variously expressed, as in Blackstone, "strong and clear beyond all doubt
or contradiction," or, in Rex v. Gorrie (1918) 83 J.P. 136, "very clear and
complete evidence" or, in B. v. R. (1958) 44 Cr.App.R. 1, 3 per Lord
Parker C.J., "It has often been put in this way, that . . . 'guilty knowledge
must be proved and the evidence to that effect must be clear and beyond
all possibility of doubt.'" No doubt, the emphatic tone of some of the g
directions was due to the court's anxiety to prevent merely naughty
children from being convicted of crimes and in a sterner age to protect
them from the draconian consequences of conviction.
The second clearly established proposition is that evidence to prove
the defendant's guilty knowledge, as defined above, must not be the mere
proof of the doing of the act charged, however horrifying or obviously
wrong that act may be. As Erie J. said in Reg. v. Smith (Sidney) (1845) F
1 Cox C.C. 260:
"a guilty knowledge that he was doing wrongmust be proved by
the evidence, and cannot be presumed from the mere commission of
the act. You are to determine from a review of the evidence whether
it is satisfactorily proved that at the time he fired the rick (if you
should be of opinion he did fire it) he had a guilty knowledge that he Q
was committing a crime."
The report of Rex v. Kershaw (1902) 18 T.L.R. 357, 358, where a boy of
13 was charged with murder, states:
"[Bucknill J.], in summing up, pointed out that the commission of a
crime was in itself no evidence whatever of the guilty state of mind
which is essential before a child between the ages of 7 and 14 can be H
condemned."
In that case the jury found the prisoner guilty of manslaughter and he was
sentenced to 10 years' penal servitude.
39
1 A.C. C. (A Minor) v. D.P.P. (H.L.(E.)) Lord Lowry
A The cases seem to show, logically enough, that the older the defendant
is and the more obviously wrong the act, the easier it will generally be to
prove guilty knowledge. The surrounding circumstances are of course
relevant and what the defendant said or did before or after the act may
go to prove his guilty mind. Running away is usually equivocal, as Laws J.
rightly said it was in the present case, because flight from the scene can as
easily follow a naughty action as a wicked one. There must, however, be
B a few cases where running away would indicate guilty knowledge, where
an act is either wrong or innocent and there is no room for mere
naughtiness. An example might be selling drugs at a street corner and
fleeing at the sight of a policeman.
The Divisional Court here, assuming that the presumption applied,
would have reversed the youth court, rightly, in my opinion, because there
Q was no evidence, outside the commission of the "offence," upon which
one could find that the presumption had been rebutted.
In order to obtain that kind of evidence, apart from anything the
defendant may have said or done, the prosecution has to rely on
interviewing the suspect or having him psychiatrically examined (two
methods which depend on receiving co-operation) or on evidence from
someone who knows the defendant well, such as a teacher, the involvement
D of whom adversely to the child is unattractive. Under section 34 of the
Criminal Justice and Public Order Act 1994 a child defendant's silence
when questioned before trial may be the subject of comment if he fails to
mention something which is later relied on in his defence and which he
could reasonably have been expected to mention at the earlier stage, but
I do not see how that provision could avail the prosecution on the issue
c of guilty knowledge. Mr. Robertson informed your Lordships that
convictions or pleas of guilty occur in a high proportion of cases governed
by the presumption. I cannot speak from experience, but perhaps one
explanation may be that except in very serious cases the courts, lacking
really cogent evidence, often treat the rebuttal of the presumption as a
formality. (Indeed its very existence was initially overlooked in Reg. v.
Coulbum (1987) 87 Cr.App.R. 309, where the charge was one of murder.)
F My speculation, for it is nothing more, is strengthened by the reflection
that courts have frequently accepted evidence of normal mental
development as proof of mature moral discernment, although the two are
not true equivalents.
My Lords, I have reached without difficulty the conclusion that both
parts of the certified question should be answered "Yes." I would therefore
Q allow the appeal and remit the case to the High Court in order that it
may be sent back to the youth court with a direction to dismiss the charge
against the appellant. But the judges in the court below have achieved
their object, at least in part, by drawing renewed attention to serious
shortcomings in an important area of our criminal law. Forty years have
passed since the article by Professor Glanville Williams and the years
between have witnessed many criticisms and suggested remedies, but no
" vigorous or reasoned defence of the presumption. I believe that the time
has come to examine further a doctrine which appears to have been
inconsistently applied and which is certainly capable of producing
inconsistent results, according to the way in which courts treat the
40
Lord Lowry C. (A Minor) v. D.P.P. (H.L.(E.)) [1996J
presumption and depending on the evidence to rebut it which is available A
in each case.
One solution which has already been suggested is to abolish the
presumption with or without an increase in the minimum age of criminal
responsibility. This, as Mr. Robertson pointed out, could expose children
to the full criminal process at an earlier age than in most countries of
Western Europe. An alternative might be to give a youth court exclusive
jurisdiction (save in family matters) over children up to a specified age "
(say, 14 or 16) applying only civil remedies for anti-social behaviour under
10 (or 12) years and both civil and punitive remedies above that age.
Your Lordships will remember the way in which Harper J. began his
judgment in R. (A Child) v. Whitty (1993) 66 A.Crim.R. 462, a case
decided by the Supreme Court of Victoria:
"'No civilised society,' says Professor Colin Howard in his book C
entitled Criminal Law, 4th ed. (1982), p. 343, 'regards children as
accountable for their actions to the same extent as adults.' . . . The
wisdom of protecting young children against the full rigour of the
criminal law is beyond argument. The difficulty lies in determining
when and under what circumstances that protection should be
removed." n
Appeal allowed.
J. A. G.
[HOUSE OF LORDS]
D REGINA APPELLANT
AND
AZIZ RESPONDENT
REGINA APPELLANT
AND
E TOSUN RESPONDENT
REGINA APPELLANT
AND
YORGANCI RESPONDENT
[CONSOLIDATED APPEALS]
F
1995 April 4, 5; Lord Goff of Chieveley, Lord Jauncey
June 15 of Tullichettle, Lord Browne-Wilkinson,
Lord Mustill and Lord Steyn