JTB, R v

On 4 October 2007 the appellant pleaded guilty at Worcester Crown Court to twelve counts of offences of causing or inciting a child under 13 to engage in sexual activity contrary to section 13(1) of the Sexual Offences Act 2003. The victims of this activity were young boys and the activity included anal penetration with the penis, oral sex and masturbation. At the time of the activity the appellant was 12 years of age. In interview he admitted the activity but said that he had not thought that what he was doing was wrong.

The appellant sought to advance, on the basis that he had not known that what he was doing was wrong, a defence that he was doli incapax. He sought a preliminary ruling from the trial judge that this defence was open to him. The trial judge ruled that it was not. Upon that ruling the appellant entered the guilty pleas. He appealed unsuccessfully against his conviction to the Court of Appeal on the ground that the judge's ruling was wrong [2008] EWCA Crim 815: [2008] 3 WLR 923; [2008] 2 Cr. App. R 235. He advances the same contention before your Lordships.

The issue

Until the last century the criminal responsibility of children and young persons was determined by the judges, as a matter of common law. A child of under 7 was incapable of incurring criminal responsibility. This incapacity was described by the Latin phrase doli incapax. Between the ages of seven and fourteen a child was presumed to be doli incapax. This presumption could be rebutted by proving that a child who had committed an act prohibited by the criminal law knew that he was doing something that was wrong.

Parliament intervened by section 50 of the Children and Young Persons Act 1933. This provided:

"It shall be conclusively presumed that no child under the age of eight years can be guilty of any offence".

The age of eight years was increased to ten by section 16 of the Children and Young Persons Act 1963. Throughout this time the position of a child under the age of 14 years remained governed by common law.

Section 34 of the Crime and Disorder Act 1998 ("section 34") provided:

"Abolition of rebuttable presumption that a child is doli incapax

The rebuttable presumption of criminal law that a child aged 10 or over is incapable of committing an offence is hereby abolished."

The issue raised by this appeal is whether the effect of section 34 has been to abolish the defence of doli incapax altogether in the case of a child aged between 10 and 14 years or merely to abolish the presumption that the child has that defence, leaving it open to the child to prove that, at the material time, he was doli incapax.

In concluding the judgment of the Court of Appeal, the Vice-President said that the question of whether section 34 had abolished the defence of doli incapax had…

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