1

1 A.C.

A APPEAL CASES
before

THE HOUSE OF LORDS

(English, Irish and Scottish)
B
and

THE JUDICIAL COMMITTEE

of Her Majesty's Most Honourable
c
PRIVY COUNCIL

[HOUSE OF LORDS]

C. (A MINOR) APPELLANT
AND
DIRECTOR OF PUBLIC PROSECUTIONS . . RESPONDENT

E 1994 March 22; 29 Mann L.J. and Laws J.

1994 Nov. 22, 23, 24; Lord Jauncey of Tullichettle,
1995 March 16 Harwich, Lord Ackner,
L o r d Bridge of
Lord Lowry and Lord Browne-Wilkinson
CrimeChildren, offences byChildren between ages of 10 and 14
_ Presumption of doli incapaxWhether still part of English law
F
The defendant, who was aged 12, was seen by police officers
to be holding the handlebars of a motor cycle while another boy
was attempting to force the chain and padlock which secured it
with a crowbar. When the police officers approached, the two
boys ran off, leaving the crowbar in the chain. The defendant was
charged with interfering with a motor cycle with the intention
P that an offence of theft should be committed, contrary to
section 9(1) of the Criminal Attempts Act 1981. On the basis of
the facts found the justices drew the inference that the defendant
had known that what he had done was seriously wrong and found
that there was sufficient evidence to rebut the presumption that
since he was only 12 years old he was incapable of committing a
crime and they convicted him. On appeal by the defendant by
way of case stated, the Divisional Court of the Queen's Bench
H Division dismissed the appeal, holding that the presumption that
a child was doli incapax did a serious disservice to the law and
its abolition would cause no injustice to the defendant, and that
since there was no impediment to the court's authority to abolish
it, the presumption was no longer part of the law of England.
I A.C. 1996-1
2
C. (A Minor) v. D.P.P. (H.L.(E.)) |1996|
On appeal by the defendant: ^
Held, allowing the appeal, that the presumption that a child
between the ages of 10 and 14 was doli incapax was a rule of the
common law that could only be abrogated by statute; that the
presumption could only be rebutted by clear positive evidence,
not consisting merely in the evidence of the acts amounting to the
offence itself, that the child knew that his act was seriously wrong;
that since there was no evidence outside the commission of the
"offence" on which to base a finding that the presumption had B
been rebutted, the case would be remitted to the High Court for
it to be sent back to the youth court with a direction to dismiss
the charge against the defendant (post, pp. 20D-E, 21A-B, 2ID,
21E-F, 39B-C, 3 9 F - G , 4 0 G ) .
Per curiam. The time has now come to examine further a
doctrine which appears to have been inconsistently applied and
which is certainly capable of producing inconsistent results. This --,
is a classic case for parliamentary investigation, deliberation and
legislation (post, pp. 20G-H, 21C, 21D-E, 39H-40A, E).
Reg. v. Smith (Sidney) (1845) l Cox C.C. 260; Rex v. Kershaw
(1902) 18 T.L.R. 357 and dictum of Lord Simon of Glaisdale in
Reg. v. Knuller (Publishing, Printing and Promotions) Ltd. [1973]
A.C. 435, 489, H.L.(E.) applied.
Reg. v. R. [1992] 1 A.C. 599, H.L.(E.) distinguished.
Decision of the Divisional Court of the Queen's Bench D
Division, post, pp. 4G et seq.; [1994] 3 W.L.R. 888; [1994] 3 All
E.R. 190 reversed.

The following cases are referred to in the opinion of Lord Lowry:

A. v. Director of Public Prosecutions [1992] Crim.L.R. 34, D.C.
Abbott v. The Queen [1977] A.C. 755; [1976] 3 W.L.R. 462; [1976] 3 All E.R.
E
140, P.C.
B. v. R. (1958) 44 Cr.App.R. 1, D.C.
Director of Public Prosecutions for Northern Ireland v. Lynch [1975] A.C. 653;
[1975] 2 W.L.R. 641; [1975] 1 All E.R. 913, H.L.(N.L)
I.P.H. v. Chief Constable of South Wales [1987] Crim.L.R. 42, D.C.
J.B.H. andJ.H. (Minors) v. O'Connell [1981] Crim.L.R. 632, D.C.
J.M. (A Minor) v. Runeckles (1984) 79 Cr.App.R. 255, D.C.
Lupton v. F.A. & A.B. Ltd. [1972] A.C. 634; [1971] 3 W.L.R. 670; [1971] 3 All F
E.R. 948, H.L.(E.)
R. (A Child) v. Whitty (1993) 66 A.Crim.R. 462
Reg. v. B. [1979] 1 W.L.R. 1185; [1979] 3 All E.R. 460, C.A.
Reg. v. Clegg [1995] 1 A.C. 482; [1995] 2 W.L.R. 80; [1995] 1 All E.R. 334,
H.L.(N.L)
Reg. v. Coulburn (1987) 87 Cr.App.R. 309, C.A.
Reg. v. Gotts [1992] 2 A.C. 412; [1992] 2 W.L.R. 284; [1992] 1 All E.R. 832, G
H.L.(E.)
Reg. v. Howe [1986] Q.B. 626; [1986] 2 W.L.R. 294; [1986] 1 All E.R. 833,
C.A.; [1987] A.C. 417; [1987] 2 W.L.R. 568; [1987] 1 All E.R. 771,
H.L.(E.)
Reg. v. Kearley [1992] 2 A.C. 228; [1992] 2 W.L.R. 656; [1992] 2 All E.R. 345,
H.L.(E.)
Reg. v. Knuller (Publishing, Printing and Promotions) Ltd. [1973] A.C. 435; J J
[1972] 3 W.L.R. 143; [1972] 2 All E.R. 898, H.L.(E.)
Reg. v. R. [1992] 1 A.C. 599; [1991] 3 W.L.R. 767; [1991] 4 All E.R. 481,
H.L.(E.)
Reg. v. Smith (Sidney) (1845) 1 Cox C.C. 260
 3
1 A.C. C. (A Minor) v. D.P.P. (H.L.(E.))
A Rex v. Gorrie (1918) 83 J.P. 136
Rex v. Kershaw (1902) 18 T.L.R. 357
Rylands v. Fletcher (1866) L.R. 1 Ex. 265; (1868) L.R. 3 H.L. 330, H.L.(E.)
Shaw v. Director of Public Prosecutions [1962] A.C. 220; [1961] 2 W.L.R. 897;
[1961] 2 All E.R. 446, H.L.(E.)
The following additional cases were cited in argument in the House of Lords:
C. R. v. United Kingdom (Application No. 20190192) (unreported), 27 June
B 1994
F. v. Padwick [1959] Crim.L.R. 439, D.C.
Foakes v. Beer (1884) 9 App.Cas. 605, H.L.(E.)
Gillick v. West Norfolk and Wisbech Area Health Authority [1986] A.C. 112;
[1985] 3 W.L.R. 830; [1985] 3 All E.R. 402, H.L.(E.)
O'Toole v. Arnold(l982) 61 F.L.R. 372
Reg. v. D. [1984] A.C. 778; [1984] 3 W.L.R. 186; [1984] 2 All E.R. 449,
C H.L.(E.)
Reg. v. Greater Manchester Coroner, Ex parte Tal [1985] Q.B. 67; [1984]
3 W.L.R. 643; [1984] 3 All E.R. 240, D.C.
Reg. v. Spencer [1985] Q.B. 771; [1985] 2 W.L.R. 197; [1985] 1 All E.R. 673,
C.A.
Reg. v. Thompson and Venables (unreported), 23 November 1993, Morland J.
Reg. v. Vamplew (1862) 3 F. & F. 520
D Rex v. Owen (1830) 4 Car. & P. 236
Waddington v. Miah [1974] 2 All E.R. 377
Young v. Bristol Aeroplane Co. Ltd. [1944] K.B. 718; [1944] 2 All E.R. 293,
C.A.
The following cases are referred to in the judgment of Laws J.:
A. v. Director of Public Prosecutions [1992] Crim.L.R. 34, D.C.
E B v. R. (1958) 44 Cr.App.R. 1, D.C.
F. v. Padwick [1959] Crim.L.R. 439; The Times, 24 April 1959, D.C.
I.P.H. v. Chief Constable of South Wales [1987] Crim.L.R. 42, D.C.
J.B.H. andJ.H. (Minors) v. O'Connell [1981] Crim.L.R. 632, D.C.
J.M. (A Minor) v. Runeckles (1984) 79 Cr.App.R. 255, D.C.
Reg. v. B. [1979] 1 W.L.R. 1185; [1979] 3 All E.R. 460, C.A.
Reg. v. Coulburn (1978) 87 Cr.App.R. 309, C.A.
p Reg. v. Greater Manchester Coroner, Ex parte Tal [1985] Q.B. 67; [1984]
3 W.L.R. 643; [1984] 3 All E.R. 240, D.C.
Reg. v. Smith (Sidney) (1845) 1 Cox C.C. 260
Rex v. Gorrie (1918) 83 J.P. 136
No additional cases were cited in argument in the Divisional Court.

G CASE STATED by Merseyside justices sitting as a youth court at

Liverpool.
An information was preferred by the Director of Public Prosecutions
against the defendant, C , a minor, that on 8 June 1992 at Liverpool,
Merseyside, he did interfere with a motor vehicle namely a Honda motor
cycle, or anything carried in or on it with the intention that an offence of
theft of the motor vehicle or part of it or of anything carried in or on it
or an offence of taking and driving it away without consent should be
committed, contrary to section 9(1) of the Criminal Attempts Act 1981.
On 22 September 1992 the defendant entered a plea of not guilty to
the charge. The justices heard the information on 25 February 1993 and
4
C. (A Minor) v. D.P.P. (Q.B.D.) [1996]
found the following facts. On 8 June 1992 a Honda motorcycle belonging \
to Helen Dawn was parked in the driveway of 12, Alexander Drive,
Liverpool and secured by a chain and padlock. Two police officers
attended at the property and saw two males tampering with the motor
cycle at about 3 p.m. on that date. The defendant was holding the
handlebars whilst the second male attempted to force the padlock and
chain with a crowbar. The two officers got out of their car and approached
the two males, who ran off leaving .the crowbar in the chain. One officer ^
chased the defendant to the rear of the property until he climbed over the
wall into a nursing home where he was arrested by another police officer.
The damage caused to the motorcycle included the leads to the coil and
battery being detached and mounting dislodged.
It was contended by the defendant that he being 12 years old at the
time of the incident the prosecution had produced insufficient evidence to Q
prove that he had guilty knowledge and that the prosecution could not
satisfy the justices that the defendant knew that what he was doing was
seriously wrong as opposed to merely naughty or mischievous.
It was contended by the prosecutor that the defendant's flight from the
police officers was evidence that he knew what he had done was seriously
wrong. The damage to the motor cycle was substantial and no effort was
made to retrieve the crowbar before flight. D
The justices drew the inference from those two facts that the defendant
knew that he was in serious trouble because he had done something
seriously wrong. Accordingly they convicted him and assessed culpability
at 15 units, which they assessed at 4 per unit, which was payable by his
mother, who was also bound over in accordance with the Criminal Justice
Act 1991 to ensure his future good behaviour.
The question 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
the justices that the defendant knew that what he was doing was seriously
wrong.

Andrew Nicol for the defendant.

J. Trevor Parry-Jones for the prosecution. F

Cur. adv. vult.

29 March. The following judgments were handed down.

LAWS J. The defendant, C , appeals by way of case stated against his G

conviction on 22 September 1992 before the Liverpool justices. On that
day he was found guilty of interfering with a motor cycle with the
intention to commit theft, contrary to section 9(1) of the Criminal
Attempts Act 1981.
The short facts, appearing from the stated case, are as follows. On
8 June 1992 a Honda 125 c.c. motor cycle was parked in a private
driveway in Liverpool, secured by a chain and padlock. The defendant
and another boy were seen tampering with it. The defendant was holding
the handlebars. His companion was trying to force the padlock and chain
with a crowbar. Two police officers approached them. The two boys ran
 5
1 A.C. C. (A Minor) v. D.P.P. (Q.B.D.) Laws J.

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."

F In my view the cases demonstrate that, if this presumption is to be

rebutted, there must be clear positive evidence that the defendant knew
his act was seriously wrong, not consisting merely in the evidence of the
acts amounting to the offence itself. On that basis, there having been no
such evidence here, this appeal must succeed if the presumption together
with the manner of its application through the authorities remains part of
Q our law.
Whatever may have been the position in an earlier age, when there
was no system of universal compulsory education and when, perhaps,
children did not grow up as quickly as they do nowadays, this presumption
at the present time is a serious disservice to our law. It means that a child
over ten who commits an act of obvious dishonesty, or even grave
violence, is to be acquitted unless the prosecution specifically prove by
H discrete evidence that he understands the obliquity of what he is doing. It is
unreal and contrary to common sense; and it is no surprise to find that
modern judgesForbes J. mJ.B.H. andJ.H. (Minors) v. O'Connell [1981]
Crim. L.R. 632, Bingham L.J. in A. v. Director of Public Prosecutions [1992]
10
Laws J. C. (A Minor) v. D.P.P. (Q.B.D.) |1996|

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."

But if "seriously wrong" means neither "legally wrong" nor "morally

wrong," what other yardstick remains? F
But that is by no means the end of the disturbing, even nonsensical,
implications of this presumption. The cases indicate (see in particular
J.B.H. andJ.H. (Minors) v. O'Connell [1981] Crim.L.R. 632 and I.P.H. v.
Chief Constable of South Wales [1987] Crim.L.R. 42) that the presumption
may be rebutted by proof that the child was of normal mental capacity
for his age. If that is right, the underlying premise is that a child of Q
average or normal development is in fact taken to be doli capax, but the
effect of the presumption is then that a defendant under 14 is assumed to
possess a subnormal mental capacity, and for that reason to be doli
incapax. There can be no respectable justification for such a bizarre state
of affairs. It means that what is by definition the exception is presumed to
be the rule. It means that the law presumes nothing as regards a child
between 10 and 14 except that he lacks the understanding of all his H
average peers. If that is the state of the law, we should be ashamed of it.
Not only this: 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
 11
1 A.C. C. (A Minor) v. D.P.P. (Q.B.D.) Laws J.

A already referred, the Court of Appeal held that a child's previous

convictions may in principle be admitted in evidence to rebut the
presumption. If that were to happen before a jury, in a case where the
child defendant disputed the primary facts, the prejudicial consequences
can only too readily be imagined. It is no answer to say that the judge
would possess a discretion to exclude such evidence. So he would; but the
case might be one where there was no other evidence available to counter
the presumption's application, and the judge would then be faced with an
impossible choice between doing rank injustice to the defendant and doing
rank injustice to the prosecution. No doubt that would be an extreme
case. But it illustrates the needlessly distortive effect which this rule
produces in the execution of criminal justice.
Even that is not the end of it. The rule is divisive and perverse:
C divisive, because it tends to attach criminal consequences to the acts of
children coming from what used to be called good homes more readily
than to the acts of others; perverse, because it tends to absolve from
criminal responsibility the very children most likely to commit criminal
acts. It must surely nowadays be regarded as obvious that, where a
morally impoverished upbringing may have led a teenager into crime, the
y\ facts of his background should go not to his guilt, but to his mitigation;
the very emphasis placed in modern penal policy upon the desirability of
non-custodial disposals designed to be remedial rather than retributive
especially in the case of young offendersoffers powerful support for the
view that delinquents under the age of 14, who may know no better than
to commit antisocial and sometimes dangerous crimes, should not be held
immune from the criminal justice system, but sensibly managed within it.
E Otherwise they are left outside the law, free to commit further crime,
perhaps of increasing gravity, unchecked by the courts whose very duty it
is to bring them to book.
It is precisely the youngster whose understanding of the difference
between right and wrong is fragile or non-existent who is most likely to
get involved in criminal activity. Yet this outdated and unprincipled
F presumption is, no less precisely, tailored to secure his acquittal if he is
brought before the court. The prosecution are in effect required to prove,
as a condition of his guilt, that he is morally responsible: But it is because
he is morally irresponsible that he has committed the crime in the first
place.
It is not surprising that this presumption took root in an earlier era,
r when the criminal law was altogether more draconian. When Blackstone
wrote, young children along with adults suffered capital punishment, and
for offences much less grave than homicide. Blackstone gives an instance
(Book IV, at p. 24) of a boy of eight hanged for firing two barns. Little
wonder that at a time when criminal guilt led to such ferocious retribution,
the law developed a means by which mercy was exceptionally extended to
child defendants. But the philosophy of criminal punishment has, very
H obviously, changed out of all recognition since those days. This
presumption has no utility whatever in the present era. It ought to go.
The question is, therefore, whether this court has the authority to
abolish it.
12
Laws J. C. (A Minor) v. D.P.P. (Q.B.D.) |1996|

Three arguments might be advanced to persuade the court that it A

ought not, or cannot, abolish the rule.
(1) The court's decision would have retroactive effect, since our law
has not yet developed a practice of prospective rulings. Accordingly, by
holding that this presumption is no longer part of our criminal
jurisprudence we should be changing the legal rules effective at the time
of the defendant's actual or putative crime, and doing so retrospectively. g
In many cases this argument is a powerful inhibition upon the extent to
which the common law courts may with justice alter the scope of the
criminal law. Very obviously, there would be manifest injustice were the
court to extend the ambit of a criminal offence beyond its earlier limits
and so pronounce a defendant guilty whose relevant actions were taken at
a time when the definition of the offence in question did not touch them.
But this is not such a case. The question is whether abolition of the
presumption would visit injustice upon this defendant. He can hardly have
said to himself, "I may pinch this motor bike and not be punished for it,
because the law will assume I am not capable of crime." If he did, that
would be firm evidence that he was indeed doli capax. There is no
conceivable injustice to him if we consign this presumption to legal
history. D
(2) The presumption is of such long standing in our law that it should
only be changed by Parliament, or at least by a decision of the House of
Lords. But antiquity of itself confers no virtue upon the legal status quo.
If it did, that would assault one of the most valued features of the
common law, which is its capacity to adapt to changing conditions. The
common law is not a system of rigid rules, but of principles, whose E
application may alter over time, and which themselves may be modified.
It may, and should, be renewed by succeeding generations of judges, and
so meet the needs of a society that is itself subject to change. In the
present case the conditions under which this presumption was developed
in the earlier law now have no application. It is our duty to get rid of it,
if we properly can. P
(3) We are bound by the doctrine of precedent to adhere to the
presumption. This is the most important argument, because the rules as
to stare decisis provide a crucial counterpoint to the law's capacity for
change: apparently established principles are not to be altered save
through the measured deliberation of a hierarchical system. First instance
courts do not, on the whole, effect root and branch changes to legal
principle, since if they were permitted to do so legal certainty, which is at
least as important as legal adaptability, would be hopelessly undermined.
But the Divisional Court is in a peculiar position. In point of hierarchy, it
is a first instance court, an arm of the Queen's Bench Division. But it is
also an appellate court for cases like the present; and in such cases there
is no appeal from its decisions save to the House of Lords.
All the cases cited to us were decided either in the Divisional Court or H
at trial at first instance, save two: Reg. v. B. [1979] 1 W.L.R. 1185 and
Reg. v. Coulbourn (1988) 87 Cr.App.R. 309, which were decisions of the
Court of Appeal (Criminal Division). It is clear on authority that the
 13
1 A.C. C. (A Minor) v. D.P.P. (Q.B.D.) Laws J.

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|

that presumption can only be rebut- A

ted by clear positive evidence that he
knew that his act was seriously
wrong, such evidence not consisting
merely in the evidence of the acts
amounting to the offence itself."
Leave to appeal.

Solicitors: R. M. Broudie & Co., Liverpool; Crown Prosecution Service,

Liverpool.

[Reported by SIMONE GREAVES, Barrister]

The defendant appealed. C

Geoffrey Robertson Q. C. and Andrew Nicol for the defendant. A child

over 10 but under 14 years is, in law, not capable of committing a crime
unless it is proved that at the time of the act he knew it was seriously
wrong. The prosecution must prove this mental element to the criminal
standard, such standard being more readily satisfied the nearer the child's T-J
age is to 14. The prosecution must prove (a) that the child did the act
constituting the crime; (b) knowing, at the time, that the act was seriously
wrongful; and (c) with such further intention or knowledge as the elements
of the offence require. Thus the rule operates, essentially and invariably,
(i) to make "guilty knowledge" an ingredient in every offence charged
against a child, and (ii) to require the prosecution to adduce evidence,
other than the actus reus itself, from which such knowledge can be E
inferred. This is a rule of law, not a rule of evidence or of practice or of
judicial caution. Its effect is to import into every criminal offence with
which a child is charged a mens rea consisting in, at least, knowledge of
the wrongfulness of the actus reus. In order to prove the existence of this
mental state to the degree of certainty required by law, the prosecution
must call evidence over and above the facts of the offence, the need for
such evidence reducing as the child's age comes closer to that (14) at
which mens rea may be inferred from perpetration of the actus reus: see
Archbold, Criminal Pleading, Evidence and Practice (1993, re-issue), vol. 1,
pp. 52-53, para. 1-96; Smith and Hogan, Criminal Law, 7th ed. (1992),
pp. 189-191; Halsbury's Laws of England, 4th ed. re-issue, vol. 11(1)
(1990), pp. 38-39, 41, paras. 34, 38; Cross and Ashworth, The English
Sentencing System, 3rd ed. (1981), pp. 78, 79; Russell on Crime, 12th ed. G
(1964), vol. 1, pp.99, 100; Kenny's Outlines of Criminal Law, 19th ed.
(1966), pp. 78, 79; Stephen's History of the Criminal Law of England
(1883), vol. 2, pp. 97, 98; A. W. G. Kean, "History of the Criminal
Liability of Children" (1937) 53 L.Q.R. 364 et seq.; Hale, The History of
the Pleas of the Crown (1778 ed.), vol. 1, pp. 25, 26 and Blackstone's
Commentaries on the Laws of England (1769), vol. 4, pp. 22, 23.
The object of the rule is to protect from conviction children who have
behaved impulsively or mischievously without being conscious at the time
that they were doing serious wrong. It helps to distinguish malevolent
children, who know they are doing something seriously wrong but who
 15
1 A.C. C. (A Minor) v. D.P.P. (H.L.(E.))

A choose to do it nonetheless, from children whose frame of mind at the

time is not, or is not clearly, blameworthy because they are lacking in
discernment or foresight of harm, or are "merely naughty," or act upon
unthinking impulse, or are simply unaware that the conduct would be
condemned by most people. From Rex v. Owen (1830) 4 Car. & P. 236,
the earliest of the modern cases to Reg. v. Coulburn (1987) 87 Cr.App.R.
309 the presumption has been applied: see, in particular, J.M. (A Minor)
B
v. Runeckles (1984) 79 Cr.App.R. 255, 258-260.
Textbooks and judicial authorities in other Commonwealth jurisdictions
have unhesitatingly accepted the doli incapax rule: see Howard, Criminal
Law, 4th ed. (1992), pp. 343-344; Gillies, Criminal Law, 2nd ed. (1990),
pp. 204-205; O'Toole v. Arnold (1982) 61 F.L.R. 372, and R. (A Child) v.
Whitty (1993) 66 A.Crim.R. 462. The presumption either continues under
C the common law or is adopted as part of modern statutory codes. Only
Canada has abolished it by statute in the Young Offenders Act 1984, but
then as part of a statutory scheme which raised the minimum age of
criminal responsibility to 12.
The cases make plain that the child's guilty knowledge that he was
doing wrong must be proved by evidence, and cannot be presumed from
j-) the mere commission of act: see, for example, Reg. v. Smith (Sidney)
(1845) 1 Cox.C.C. 260 and Rex v. Kershaw (1902) 18 T.L.R. 357. But the
nearer the defendant is to the age of 14 the weaker becomes the
presumption: Reg. v. Vamplew (1862) 3 F. & F. 520 and Rex v. Gorrie
(1918) 83 J.P. 136.
A consideration of the relevant parliamentary reports, White Papers
and other materials that have appeared over the years show how opinion
E has varied from time to time in relation to what should be the age of
criminal responsibility: see, for example, the Report of the Molony
Committee on the Treatment of Young Offenders (1927) (Cmnd. 2831),
p. 21; section 50 of the Children and Young Persons Act 1933; the Criminal
Justice Act 1948; Glanville Williams, "The Criminal Responsibility of
Children" [1954] Crim.L.R. 493 et seq.; the Report of the Ingleby
F Committee on Children and Young Persons (1960) (Cmnd. 1191),
paragraphs 78, 81, 93, 94; the Children and Young Persons Act 1963; the
White Paper, "The Child, The Family and The Young Offender" (1965)
(Cmnd. 2742); the White Paper, "Children in Trouble" (1968)
(Cmnd. 3600); the Children and Young Persons Act 1969, sections 4, 34,
70, 73; the Children Act 1975; the Police and Criminal Evidence Act 1984;
r the Law Commission Report on the Codification of the Criminal Law
(1985) (Law Com. No. 143), p. 100, paras. 11.21, 11.22; the Criminal
Justice Act 1988; the Children Act 1989; the White Paper, "Crime, Justice
and Protecting the Public" (1990) (Cm. 965), ch. 8; section 72 of the
Criminal Justice Act 1991; the Sexual Offences Act 1993; the Criminal
Justice Act 1993; the Home Office Supplement 18/1994; the Criminal
Justice and Public Order Act 1994, sections 1, 16, 34, 35 and Ashworth,
H "Abolishing the Presumption of Incapacity: C. v. D.P.P." Journal of
Child Law (1994), vol. 6, No. 4, p. 174. None of the foregoing material
was before the Divisional Court, which took the point as to the
presumption of its own motion.
16
C. (A Minor) v. D.P.P. (H.L.(E.)) |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.))

A sufficient understanding and intelligence to consent to being "kidnapped"

by its own parent.
Thus, the doli incapax principle is not commonly condemned as an
anachronism. There is a substantial body of opinion that believes it has
the beneficial impact of diverting at least some children from the criminal
justice system and allowing other mechanisms to control anti-social
behaviour: see J.M. (A Minor) v. Runeckles, 79 Cr.App.R. 255, 260, per
B Robert Goff L.J. When the issue of abolition of the rule has been mooted
in the past it has usually been in conjunction with a review of the proper
minimum age for criminal liability. The Ingleby Committee recommended
abolition of the presumption but in the context of a report that proposed
a minimum age of criminal responsibility to be raised from 8 to 12: see
the Report of the Committee on Children and Young Persons (Cmnd.
Q 1191), para. 94. Similarly, Sir James FitzJames Stephen thought that a
child should pass straight from a state of complete irresponsibility to a
state of complete responsibility, with the sentencer taking account of age
in mitigation. However, he combined this with a recommendation that the
boundary should be raised from 8, as it was then by the common law, to
12: Stephen's History of the Criminal Law of England, vol. 2, p. 98.
This is an area in which Parliament takes a keen interest and there has
D been a plethora of legislative measures. Most recently the common law
presumption that a boy under 14 was incapable of committing rape was
abolished: the Sexual Offences Act 1993. It is noteworthy that the law
does not apply to acts done before its commencement: section 2(3). This
is unsurprising in view of article 7 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms (Cmd. 8969). It
is almost impossible to believe that Parliament would pass retrospective
criminal legislation: see Waddington v. Miah [1974] 2 All E.R. 377, 379F.
However, the change brought about by the decision of the Divisional
Court does apply retrospectively.
Despite parliamentary appetite for legislation concerning young
offenders, it is significant that there has been no move to adopt a proposal
made by the Law Commission in 1985 (Law Com. No. 143), Codification
F of the Criminal Law, para. 1122 that the doli incapax presumption should
be abolished.
As to international considerations, although the presumption has an
ancient history, it accords with international instruments to which the
United Kingdom is a party and which concern children. Thus, the United
Nations Convention on the Rights of the Child (1989) (Cm. 1976) requires
Q parties to promote the establishment of a minimum age below which
children should be presumed not to have the capacity to infringe the
criminal law: article 40(3). It also requires the child to be dealt with in a
manner appropriate to his or her circumstances and the offence: article
40(4). This emphasis on the consideration of the individual situation of
the child is reflected in the attention which the English presumption places
on the capacity of the particular child to understand that what was done
" was seriously wrong. [Reference was also made to the United Nations
Standard Minimum Rules for the Administration of Juvenile Justice ("the
Beijing Rules") G. A. Res. 40/33, 29 November 1985, article 4 and the
Commentary thereon.]
18
C. (A Minor) v. D.P.P. (H.L.(E.)) [1996]

Abolition of the presumption would leave only the statutory minimum \

age of criminal age of responsibility. At 10 the minimum age for England
and Wales is lower than that for any other European country except
Ireland (where it is seven) and Scotland (where it is eight). For Scottish
law: see Alison, Principles of the Criminal Law of Scotland (1832), (1989
reprint), pp. 663, 664. The next lowest is 12 (Netherlands). Others range
up to 18 (Belgium).
It cannot be suggested that the United Nations Convention on the
Rights of the Child or the Beijing Rules require all subscribing states to
have a doli incapax presumption. However, because that presumption is
in accordance with these provisions and because abolition of the
presumption at least leaves open to question whether English law would
be in compliance, it should be for Parliament rather than the courts to
make the change. [Reference was made to I.P.H. v. Chief Constable of Q
South Wales [1987] Crim.L.R. 42.]
Richard Henriques Q.C. and J. Trevor Parry-Jones for the Crown.
There is a need for change. The presumption is illogical in its conception
and bizarre in its effect. The requirement to look outside the facts alleged
is illogical and is a distortion which has crept into the common law.
The change sought is that there should be some evidential basis before
a particular child can be held doli capax. The burden of proving that he D
is should remain on the prosecution to the criminal standard. The
consequential change will be procedural only and well within the powers
of this House. The change will not breach article 7 of the European
Convention on Human Rights nor the United Nations Conventions on
the Rights of the Child.
There has been a malfunction in criminal procedure in this field, but c
the decision of the Divisional Court goes further than is warranted on the
authorities. The Divisional Court could have stated that it was bound by
previous authorities, quash the conviction, but given leave to appeal to
this House. The Crown are seeking less of a change than that declared in
the judgment of the Divisional Court. In the present case the House would
quash the defendant's conviction because his advisers did not know what
was the correct evidential procedure to be adopted in cases of the present F
kind.
The Crown must be allowed to look at the facts and inferences to be
drawn from them. If the facts speak for themselves it will need very little
evidence to be adduced by the Crown to show that the child knew that
what it had done was seriously wrong. If the facts speak for themselves
then it is for the child between the ages of 10 and 14 to prove that he did Q
not know what he did was wrong. In the time of Blackstone, for a
defendant under the age of 14 to be convicted, it was necessary that he
could "discern between good and evil:" Commentaries on the Laws of
England, 1st ed. vol. 4, p. 23. The presumption should be removed and
the question of doli incapax raised as a defence. This is an evidential
loophole. It is not a change in the substantive criminal law and therefore
it is within the powers of this House to make such a change. Moreover, it "
is not impinging on the functions of the legislature. It is central to the
Crown's case that there must be some evidence of incapacity before the
Crown are required to rebut it. There is little authority on this point
 19
1 A.C. C. (A Minor) v. D.P.P. (H.L.(E.))

A because by virtue of the current presumption of doli incapax many cases

do not come to court or are withdrawn at an early stage. Whilst there is
abundant evidence that the government do not wish to abolish the
presumption, there is no evidence that it does not favour any modification
whatsoever. The question in the present case is whether it is a reasonable
assumption that normal children between the ages of 10 and 14 know the
difference between right and wrong. Matters in this field have gone
through the parliamentary domain, but what has not been considered is
whether a minor evidential tinkering with criminal procedure might well
have a great beneficial effect in this field. [Reference was made to Stephen's
History of the Criminal Law of England, vol. 2, p. 98.]
The principles of English law are supposed to have a sound basis. But
the principle of doli incapax really cannot survive as a reasonable
C presumption because it is manifestly wrong. Well over 90 per cent, of
present-day children who come within the presumption know the difference
between right and wrong. Here is a fundamental presumption that cannot
withstand critical analysis, and therefore the House can state that the
presumption is no longer tenable. The circumstances in which the
presumption can be rebutted at the present time are limited to (i) evidence
Q of the child's conduct before or after the commission of the crime,
(ii) admissions made either at interview or at trial, (iii) evidence of
upbringing and education, (iv) psychological evidence and (v) evidence of
previous convictions. Some of the foregoing, however, raise practical
problems in rebutting the presumption.
As to police questioning, in /. P. H. v. Chief Constable of South Wales
[1987] Crim.L.R. 42, Woolf L.J. proffered the guidance that a police
E officer, when interviewing the suspect, should incorporate some question
designed to probe the issue of whether the child knew his acts were
seriously wrong. But this guidance, if followed, does not rebut the
presumption in the case of the child who remains silent or who falsely
purports to be ignorant of the fact that his acts were seriously wrong.
As to the evidence of teachers, in the case of the worst behaved
F children, the evidence may in fact assist the child if he has behaved
sufficiently badly with frequency. Further, truancy may make it difficult
for a teacher to speak with any confidence about a child's knowledge. In
any event, the giving of evidence by a teacher against a pupil is not
desirable save in a case of extreme gravity.
As to the evidence of psychiatrists or psychologists, there is no power
c vested in the Crown to compel a defendant to be examined by such an
expert.
As to evidence of previous convictions, the only way to establish guilt,
that is, to rebut the presumption, may be for the prosecution to adduce
evidence of previous misconduct or indeed convictions: see Reg. v. B.
[1979] 1 W.L.R. 1185. In the event of a judge exercising his discretion to
exclude such evidence as prejudicialand, indeed, it may be highly
H prejudicialthe prosecution may fail through having no other means at
their disposal to rebut the presumption.
The nub of the problem is: are there circumstances where to secure
conviction it suffices to consider the facts of the crime alleged alone: for
20
C. (A Minor) v. D.P.P. (H.L.(E.)) [1996]
example, an 11-year-old computer buff discovered to have been transferring \
money from a bank to his own post office account?
On the question whether the courts have gone too far in seeking
evidence, the difficulty seems to have stemmed from the decision in F. v.
Padwick [1959] Crim.L.R. 439. That case is the beginning of the home
background evidence. For the Crown to have to adduce evidence relating
to the child's home background is an impracticality.
The Crown's proposal is purely procedural. Further, the change
proposed would not be retroactive and therefore would not apply to the
present case. The law as it stands is anachronistic and therefore should be
changed. The approach of this House in Reg. v. R. [1992] 1 A.C. 599
should be adopted. There are formidable obstacles facing the Crown in
rebutting this presumption. [Reference was also made to A. v. Director of
Public Prosecutions [1992] Crim.L.R. 34, J.B.H. and J.H. (Minors) v. Q
O'Connell [1981] Crim.L.R. 632 and Kenny's Outlines of Criminal Law,
19th ed., pp. 79, 80.]
Robertson Q.C., in reply, referred to Reg. v. Thompson and Venables
(unreported), 23 November 1993, Morland J.

Their Lordships took time for consideration.

16 March 1995. LORD JAUNCEY OF TULLICHETTLE. My Lords, I have

had the advantage of reading in draft the speech of my noble and learned
friend, Lord Lowry. I am grateful to him for his detailed analysis of the
authorities and notwithstanding the forceful and persuasive judgment of
Laws J. I agree that, as the law now stands, your Lordships have no
alternative but to answer the certified questions in the manner which my E
noble and learned friend proposes.
I should however like to add a few words of my own in relation to the
desirability of retaining the presumption in its present form. It is, no
doubt, undesirable that a young person who commits an offence and who
genuinely does not know that he is doing something seriously wrong
should suffer the rigours of the criminal law. But is a blanket presumption
such as exists in England and Wales at the moment the best way to
achieve protection for such a person? There must be many youthful
offenders under the age of 14 who are very well aware that what they are
doing is seriously wrong. Indeed it is almost an affront to common sense
to presume that a boy of 12 or 13 who steals a high powered motor car,
damages other cars while driving it, knocks down a uniformed police
officer and then runs away when stopped is unaware that he is doing G
wrong.
The presumption has been subject to weighty criticism over many
years, by committees, by academic writers and by the courts as explained
in detail in the speech of my noble and learned friend. I add my voice to
those critics and express the hope that Parliament may once again look at
the presumption, perhaps as part of a larger review of the appropriate
methods in a modern society of dealing with youthful offenders.
No such presumption operates in Scotland where normal criminal
responsibility attaches to a child over 8 and I do not understand that
injustice is considered to have resulted from this situation. In this
 21
1 A.C. C. (A Minor) v. D.P.P. (H.L.(E.)) JfwSEK
A connection it is worth mentioning that the system of children's hearings
constituted by the Social Work (Scotland) Act 1968 which enables many
offending children between 8 and 16 years of age to be effectively dealt
with outside the criminal courts works extremely well.

LORD BRIDGE OF HARWICH. My Lords, I have had the advantage of

reading in draft the speech of my noble and learned friend, Lord Lowry.
I agree with him that in the present state of the law your Lordships have
no alternative but to allow the appeal and answer both parts of the
certified question in the affirmative.
In today's social conditions the operation of the presumption that
children between the ages of 10 and 14 are doli incapax may give rise to
anomalies or even absurdities. But how best to remedy this state of affairs
C can, in my view, only be considered in the context of wider issues of social
policy respecting the treatment of delinquency in this age group. These
issues are politically controversial and this is pre-eminently an area of the
law in which Parliament alone is competent to determine the direction
which any reform of the law should take.

LORD ACKNER. My Lords, I have had the advantage of reading in

draft the speech of my noble and learned friend, Lord Lowry. I agree that
your Lordships have no alternative but to answer the certified question in
the manner he proposes, since to do otherwise would be a usurpation of
the legislative function of your Lordships' House. I have, however,
considerable sympathy with the criticisms expressed by Laws J. of the law
as it now stands and would hope that Parliament will provide an early
E opportunity for its review.

LORD LOWRY. My Lords, the point of this appeal is:

"Whether there continues to be a presumption that a child
between the ages of 10 and 14 is doli incapax and, if so, whether that
presumption can only be rebutted by clear positive evidence that he
F knew that his act was seriously wrong, such evidence not consisting
merely in the evidence of the acts amounting to the offence itself."
That was the question certified as a point of law of general public
importance by the Divisional Court when granting leave to appeal to this
House after dismissing the appellant's appeal by case stated from a
decision of a youth court convicting the appellant of interfering with a
G motor cycle with the intent that an offence of theft or of taking and
driving away without consent should be committed contrary to section
9(1) of the Criminal Attempts Act 1981. The question arose in this way.
About 3 p.m. on 8 June 1992 two policemen on mobile patrol saw a
Honda 125 c.c. motor cycle parked in the private driveway of a house in
Liverpool. Two boys were tampering with the motor cycle. The appellant
was holding the handlebars while the other boy tried with a crowbar to
force open the chain and padlock securing the motor cycle. The police
approached on foot and both boys ran off. One policeman chased the
appellant who then climbed over a wall at the rear of the property and
was arrested by another policeman. The damage to the motor cycle
22
Lord Lowry C. (A Minor) v. D.P.P. (H.L.(E.)) |1996|

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

A 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.'
"In my view the cases demonstrate that, if this presumption is to
" be rebutted, there must be clear positive evidence that the defendant
knew his act was seriously wrong, not consisting merely in the
evidence of the acts amounting to the offence itself. On that basis,
there having been no such evidence here, this appeal must succeed if
the presumption together with the manner of its application through
the authorities remains part of our law.
Q "Whatever may have been the position in an earlier age, when
there was no system of universal compulsory education and when,
perhaps, children did not grow up as quickly as they do nowadays,
this presumption at the present time is a serious disservice to our law.
It means that a child over ten who commits an act of obvious
dishonesty, or even grave violence, is to be acquitted unless the
prosecution specifically prove by discrete evidence that he understands
D the obliquity of what he is doing. It is unreal and contrary to common
sense; and it is no surprise to find that modern judgesForbes J. in
J.B.H. and J.H. (Minors) v. O'Connell [1981] Crim.L.R. 632,
Bingham L.J. in A. v. Director of Public Prosecutions [1992] Crim.L.R.
34have looked upon the rule with increasing unease and perhaps
rank disapproval."

The judge proceeded to marshal forcefully the arguments against the

continued application of the presumption and concluded, at p. 896D that
it "has no utility whatever in the present era" and that it "ought to go."
Then, having considered three arguments which "might be advanced to
persuade the court that it ought not, or cannot, abolish the rule," he
concluded, ante, p. 13:
*" "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 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."

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

Sentencing System, 3rd ed. (1981). The doctrine is summarised in Archbold, A

Criminal Pleading Evidence & Practice (1993), vol. 1, p. 52, paras. 1-96:
"At common law a child under 14 years is presumed not to have
reached the age of discretion and to be doli incapax; but this
presumption may be rebutted by strong and pregnant evidence of a
mischievous discretion . . . Between 10 and 14 years a child is
presumed not to know the difference between right and wrong and g
therefore to be incapable of committing a crime because of lack of
mens rea . . . Wrong means gravely wrong, seriously wrong, evil or
morally wrong."
In the 17th century the "age of discretion" was fixed by Coke at 14. It
was accepted as such by Hale.
Counsel pointed to the long line of cases, most of which were noted in C
the judgment of Laws J. (and the latest of which was A. v. Director of
Public Prosecutions [1992] Crim.L.R. 34 in the Court of Appeal (Criminal
Division)), in which the presumption has without exception been
recognised and applied. He also traced the doctrine in the cases, legislation
and textbooks of other jurisdictions in the Commonwealth.
The presumption has been discussed in many official reports and has
been the background of legislation concerning the age of criminal
responsibility. In 1927 the Report of the Molony Committee on the
Treatment of Young Offenders (Cmd. 2831) stated, at p. 21:
"As the law stands at present no act done by any person under seven
years of age is a crime and no act done by any person over seven and
under fourteen is a crime unless it be shown affirmatively that such
person had sufficient capacity to know that the act was wrong. The E
age of seven was adopted hundreds of years ago and the whole
attitude of society towards offences committed by children has since
been revolutionised. We think the time has come for raising the age
of criminal responsibility, and we think it could safely be placed at
eight. For children over this age courts should bear in mind the
requirement referred to above." p
(The last sentence here was a reference to the importance of reformation
of children as distinct from punishment.) In consequence, no doubt, of
that Report the minimum age of criminal responsibility was raised to eight
years by section 50 of the Children and Young Persons Act 1933.
In 1960 the Report of the Ingleby Committee on Children and Young
Persons (Cmnd. 1191) recommended raising the age of criminal G
responsibility to 12, with the possibility of its becoming 13 or 14; instead
of criminal proceedings that committee contemplated that children under
the given age would be brought before a court as being in need of care,
protection, discipline or control. It can therefore be seen that the proposal,
when fully implemented, would have meant that there was no criminal
responsibility up to the age to which the presumption applied and still
applies. By section 16 of the Children and Young Persons Act 1963 the
minimum age of criminal responsibility was raised to 10 years but, failing
any express enactment on the point, the common law upper limit stayed
at 14 for the purpose of the presumption.
 25
1 A.C. C. (A Minor) v. D.P.P. (H.L.(E.)) Lord Lowry
A In 1965, the Government having changed, a White Paper, "The Child,
the Family and the Young Offender" (Cmnd. 2742) proposed the
extinction of the doli incapax rule by raising the minimum age of criminal
responsibility to 16. This reform was to be accompanied by the abolition
of the juvenile court. Another point of view, which was also more in
harmony with the Ingleby Report appeared in section 4 of the Children
and Young Persons Act 1969, which provided that a person should not be
charged with an offence except homicide by reason of anything done or
omitted while he was a child, that is, under 14. Sections 34 and 73 of the
Act enabled the minimum age of criminal responsibility to be increased
gradually from 10 to 14 by Order, but a day was never appointed for
section 4 to come into effect.
Meanwhile, in 1985, there was laid before Parliament a draft Bill
Q codifying the criminal law, which had been prepared under the auspices of
the Law Commission by a committee of distinguished academic lawyers
under the chairmanship of Professor J. C. Smith C.B.E., Q.C. (Law Com.
No. 143). Draft clause 36 reads: "A child is not guilty of an offence by
reason of anything he does when under ten years of age."
The committee's commentary is significant:
J-J "11.21 Child under ten. This clause restates the present law
without expressing the matter, as the present law does, in terms of a
conclusive presumption of incapacity."
"11.22 Child over ten but under fourteen. The law at present is that
such a child can be guilty of an offence but only if, in addition to
doing the prohibited act with such fault as is required in the case of
an adult, he knows that what he is doing is 'seriously wrong.' It is
E presumed at his trial that he did not have such knowledge, and the
prosecution must rebut this presumption by proof beyond reasonable
doubt. The presumption, it has been said, 'reflects an outworn mode
of thought' and 'is steeped in absurdity;' and it has long been
recognised as operating capriciously. Its abolition was proposed in
1960 by the Ingleby Committee on Children and Young Persons. We
P believe that there is no case for its survival in the Code."
"11.23 The Children and Young Persons Act 1969, section 4
provides: 'A person shall not be charged with an offence, except
homicide, by reason of anything done or comitted while he was a
child' (that is, under fourteen). The intention of the government of
the day was that the minimum age for prosecution should in fact be
raised to fourteen by stages; and the Act contains provisions enabling
G this to be done. No government, however, has acted to bring section
4 into force; it appears to be a dead letter. It ought no doubt to be
repealed with the enactment of the Code (if not before). It is not,
however, strictly speaking inconsistent with the present clause. The
clause specifies the lowest age at which a person can commit an
offence, while section 4 specifies an age below which, although
JJ committing an offence, a person does not thereby render himself
liable to prosecution."

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

to full responsibility without any intermediate zone. Your Lordships will A

recall that the adverse comments on the presumption in paragraph 11.22
were made by Professor Glanville Williams Q.C. in his authoritative
textbook Criminal Law, The General Part, 2nd ed. (1961), pp. 814-821.
What could perhaps be regarded as the Government's response was
contained in Chapter 8 of a White Paper entitled Crime, Justice and
Protecting the Public (1990) (Cm. 965). I reproduce an extract:
B
"8.3 What is needed are arrangements which allow parents'
diminishing responsibility for their children's behaviour as they grow
older to be balanced by placing increasing responsibility on the young
people themselves. There should, therefore, be separate arrangements
for three age groups: those aged under 10; those aged 10-15; and
those aged 16 and 17. At 18 young people reach the age of majority.
Formal parental authority ceases, though many parents will continue C
to help and guide their children beyond this age, and should be
encouraged to do so. 8.4 The criminal law is based on the principle
that people understand the difference between right and wrong. Very
young children cannot easily tell this difference, and the law takes
account of this. The age of criminal responsibility, below which no
child may be prosecuted, is 10 years; and between the ages of 10 and rj
13 a child may only be convicted of a criminal offence if the
prosecution can show that he knew that what he did was seriously
wrong. The Government does not intend to change these arrangements
which make proper allowance for the fact that children's understand-
ing, knowledge and ability to reason are still developing. 8.5 For
children below the age of 10, the responsibility must be placed
squarely on the parents to help their children to keep out of trouble ^
and to deal with the consequences if they get into trouble. . . ."

The sequence was completed by section 72 of the Criminal Justice Act

1991, which repealed section 4 of the Children and Young Persons Act
1969.
The material which Mr. Robertson put before your Lordships p
convinces me that the presumption is still universally recognised as an
effective doctrine which the Government has recently reaffirmed to be, in
the Government's view, part of the criminal law. The imperfections which
have been attributed to that doctrine cannot, in my view, provide a
justification for saying that the presumption is no longer part of our law.
To sweep it away under the doubtful auspices of judicial legislation is to
my mind, quite impracticable. ^
Mr. Robertson drew to your Lordships' attention a number of dicta in
this House which were calculated to discourage judges from lightly
venturing to alter the law. I refer first to the words of Lord Lane C.J. in
the Court of Appeal in Reg. v. Howe [1986] Q.B. 626, 637:
"Trial judges are obliged to explain to the ordinary men and
women sitting on the jury in language they can understand what the "
law is. Their task, already difficult, would become impossible if they
were obliged to direct the jury not upon what the law is but on what
it ought to be but is not. That is not their duty."
 27
1 A.C. C. (A Minor) v. D.P.P. (H.L.(E.)) Lord Lowry

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.)

It is hard, when discussing the propriety of judicial law-making, to

reason conclusively from one situation to another, but a further example
of reluctance to interfere with a fundamental doctrine, the rule against
hearsay, is provided by the difficult case of Reg. v. Kearley [1992] 2 A.C.
228 decided in your Lordships' House. I refer to the statements of my B
noble and learned friends, Lord Bridge of Harwich, at p. 251, and Lord
Ackner, at p. 258, and of Lord Oliver of Aylmerton, at pp. 277-278.
I believe, however, that one can find in the authorities some aids to
navigation across an uncertainly charted sea. (1) If the solution is
doubtful, the judges should beware of imposing their own remedy.
(2) Caution should prevail if Parliament has rejected opportunities of ^
clearing up a known difficulty or has legislated, while leaving the difficulty
untouched. (3) Disputed matters of social policy are less suitable areas for
judicial intervention than purely legal problems. (4) Fundamental legal
doctrines should not be lightly set aside. (5) Judges should not make a
change unless they can achieve finality and certainty. I consider that all
these aids, in varying degrees, point away from the solution proposed in
the court below. Since drafting this speech I have enjoyed the privilege of D
reading the speech delivered by Lord Lloyd of Berwick in Reg. v. Clegg
[1995] 1 A.C. 482 and I readily adopt all that he has said there on the
subject of judicial law making.
It is always a worry, at any level of adjudication, when what is thought
to be the law and what is alleged to represent common sense do not
appear to coincide, and the presumption has in recent years been the
object of some logical and forceful criticisms. I refer first to an article by
Professor Glanville Williams in [1954] Crim.L.R. 493 which appears to
have formed the basis for his treatment of the presumption in Criminal
Law, The General Part. In his article the learned author set out the
conventional view and observed that the test of knowledge of right and
wrong was bound up with the theory of moral responsibility, and the right
to inflict retributive punishment, since no one can justly be punished F
unless he is morally responsible. He then said, at pp. 495^496 :
"the 'common sense' view of moral responsibility and retributive
punishment is still widely maintained in respect of the sane adult who
commits a crime. Yet in respect of children it is just as generally
abandoned. No one whose opinion is worth considering now believes
that a child who does wrong ought as a matter of moral necessity to Q
expiate his wrong by suffering. Punishment may sometimes be the
best treatment, but if so it is because this is the only way in which the
particular child can be made to see the error of his ways. . . . In this
climate of opinion, the 'knowledge of wrong' test no longer makes
sense. . . . Thus at the present day the 'knowledge of wrong' test
stands in the way not of punishment, but of educational treatment. It
saves the child not from prison, transportation, or the gallows, but "
from the probation officer, the foster-parent, or the approved school.
The paradoxical result is that, the more warped the child's moral
standards, the safer he is from the correctional treatment of the
 29
1 A.C. C. (A Minor) v. D.P.P. (H.L.(E.)) Lord Lowry
A criminal law. It is perhaps just possible to argue that the test should
now be regarded as even legally obsolete. The test was designed to
restrict the punishment of children and should not be used where no
question of punishment arises. This argument has to face the difficulty
that the test traditionally protects the child from conviction, whereas
the choice between punishment and other treatment is only made
after conviction."
B
Professor Glanville Williams went on to discuss the burden of proof
under existing law, at p. 498:
"The usual statement of the law is that there is a rebuttable
presumption that the child over eight is doli incapax, and it is for the
prosecution to prove that the child knew that what he was doing was
C wrong. Some magistrates interpret this rule so strictly that if the
, prosecution gives no evidence of this knowledge, they find that there
is no case to answer. Now if the police have not interrogated the
child before the trial, to obtain an admission from him, they may be
wholly without evidence of the child's knowledge. The effect of this
interpretation of the law is therefore to encourage the preliminary
questioning of wrongdoing children by the police. Otherwise the case
may break down although the child is ready to admit his guilty
knowledge, for it may be impossible to reach a stage in the case at
which the child can be examined. As a matter of policy it is highly
desirable that a child who has committed what, for an adult, would
be a crime, should be put to answer, even if he is afterwards acquitted
on the ground that he did not know his act to be wrong. This
E desirable result can be reached by drawing a distinction between the
burden of proof (or persuasive burden) and the burden of introducing
evidence (evidential burden). The burden of proving the child's
knowledge of wrong is on the prosecution, but this only means that,
when all the evidence is in, the prosecution must fail if the court is
not satisfied beyond reasonable doubt of the child's guilt. The fact
that the persuasive burden is on the prosecution does not control the
F burden of introducing evidence on particular issues, for the law may
place an evidential burden on the accused even when the persuasive
burden is on the prosecution."
In Criminal Law, The General Part, which in other respects closely follows
the article in the Criminal Law Review, the learned author does not advert
P to the possibility of reversing the evidential burden, but at p. 820, after
reviewing the cases, he says:
"These decisions show that the present law is steeped in absurdity,
and the report of the Committee on the whole subject is eagerly
awaited. It seems utterly wrong that a child who has been in this
world for only eight years should be involved in the machinery of the
police and the law courts for a mischievous escapade (paragraphs
274, 277). But if, in default of other arrangements, the machinery of
the law has to be invoked for the protection of society and of the
child, it should not be liable to be defeated by a rule which reflects
an outworn mode of thought."
30
Lord Lowry C. (A Minor) v. D.P.P. (H.L.(E.)) |1996|

My Lords, I would now mention two cases in which the presumption \

came in for criticism. J.B.H. and J.H. (Minors) v. O'Connell [1981]
Crim.L.R. 632 was decided by the Divisional Court (Donaldson L.J. and
Forbes J.) on 20 January 1981. The case is unreported but your Lordships
were given a transcript. The comments of Laws J. are reported ante,
p. 7B-E.
Two boys aged 13 and 11 broke into a school and stole a screwdriver,
three spanners, a lighter, three soldering leads, two watches, a ring and
necklace and other articles. They equipped themselves with eggs, flour,
cornflakes and 12 tubes of duplicating ink, with which they "redecorated"
the school, thereby causing 3,000 worth of damage. When charged with
burglary and malicious damage they called no evidence. The justices
convicted, made a supervision order and fined one boy 100 and the other
50. Donaldson L.J. observed that the defence submission of no case Q
"would strike any non-lawyer as a quite remarkable submission," but
pointed out that it was based on the presumption. He continued:
"In this day and age, to coin a phrase, it may require relatively
little evidence in a case of this sort to justify magistrates in finding
that children of this age do know that what they are doing is wrong.
We have, after all, universal education and these boys were of course p
at school. This was a very simple offence and it would be otherwise
with rather more sophisticated offences. If, for example, children
between the ages of 10 and 14 were charged with forgery, it might
require a considerable body of evidence before magistrates were
satisfied that they knew that what they were doing was wrong.
"These magistrates in this particular case considered the matter
very carefully. They set out in the case stated that: 'We were of ^
opinion that the respondent'that is to say the prosecutor'had to
prove the appellants knew that what they were doing was wrong
morally, whether or not they knew it was an offence.' That is
absolutely right."
After pointing to the justices' detailed review of the facts and to their p
conclusion that no children aged 11 and 13 could fail to realise that their
actions were wrong, Donaldson L.J. proceeded:
"Had the matter been left like that, I think that the justices'
decision might well have been upheld. But unfortunately there is a
clear self-misdirection revealed by the case because the justices also
say: 'There being no evidence before us about the appellants' Q
upbringing or their mental capacity we had to treat them as ordinary
boys of their respective ages and to make our decision on the basis of
the evidence concerning their activities on 29 April 1979 and their
conversations with the Police thereafter.' What the justices are there
saying is that it was for the defence to call evidence to show that the
appellants were not ordinary boys of their respective ages. That in
fact contradicts what they said in the previous paragraph of the case "
that it was for the respondent to prove that the appellants knew that
what they were doing was wrong. It is for the prosecution to rebut
this presumption. They can only rebut it by relying upon what the
 31
1 A.C. C. (A Minor) v. D.P.P. (H.L.(E.)) Lord Lowry
A children did if they also call evidence showing that the children were
ordinary children with ordinary mental aptitudes."

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

referred, the Court of Appeal held that a child's previous convictions A

may in principle be admitted in evidence to rebut the presumption. If
that were to happen before a jury, in a case where the child defendant
disputed the primary facts, the prejudicial consequences can only too
readily be imagined. It is no answer to say that the judge would
possess a discretion to exclude such evidence. So he would; but the
case might be one where there was no other evidence available to
counter the presumption's application, and the judge would then be
faced with an impossible choice between doing rank injustice to the
defendant and doing rank injustice to the prosecution. No doubt that
would be an extreme case. But it illustrates the needlessly distortive
effect which this rule produces in the execution of criminal justice."
The last sentence above makes the point. There must be something badly
wrong with a doctrine which can involve such unjust results. This
proposition needs to be scrutinised.
One would, of course, have to know the nature of the earlier
convictions before accepting that they might properly prove a guilty mind
in relation to the offence charged. Secondly, can the opinion of an earlier
court or jury prove the guilty mind vis-a-vis the later charge? I can see the
argument that the child, if convicted and, a fortiori, if punished for the D
offence, could be said to know thenceforward right from wrong. But
I think there is a simpler answer to the problem. If the primary facts are
disputed, my own opinion is that, despite Reg. v. B., a child defendant
ought not to be put in a worse position than an adult by having evidence
of his previous convictions admitted unless they can be admitted under a
generally applicable principle, for example, if he has put his character in
issue or attacked the character of prosecution witnesses or if the earlier
convictions come within the "similar facts" rule (see on this point Kenny's
Outlines of Criminal Law, 19th ed., p. 80, note 2). In Reg. v. B. [1979]
1 W.L.R. 1185 the offence charged was blackmail and the report does not
disclose what the earlier convictions were for. The only clue is to be found
in the trial judge's observation, at p. 1187:
"it seems to me blindingly obvious that if a person charged with an F
offence of dishonesty has been before the juvenile court and there has
been recorded a finding of guilt in respect of such a case, that must
be relevant as to whether or not he knows the difference between
right or wrong."

Later, referring to what evidence may be admitted to prove knowledge of p

right and wrong, the judge said:
"And it must, in my view, include evidence of convictions, provided
those are relevant."I assume that this means relevant to prove
knowledge of the difference between right and wrong."It does seem
to me that a situation could arise where the prosecution might be
seeking to prove findings of guilt which could really have no bearing
on this issue, and if that were the situation then one would without
hesitation say that the prejudicial effect of such evidence would
outweigh any possible beneficial value and that such evidence should
be excluded. But that is not the situation which arises in this case."
 35
1 A.C. C. (A Minor) v. D.P.P. (H.L.(E.)) Lord Lowry

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|

virtue of their superior upbringing, bore moral responsibility for their A

actions and the exoneration of those who did not. The Divisional Court's
argument provides support for the modern outlook in favour of prescribing
suitable treatment (which may or may not be punitive) for the many
children who commit antisocial acts, instead of searching for moral
culpability, which should then be visited with retribution.
7. It is then said (with considerable force, I would admit) that the
presumption is an outmoded survival from an age in which criminal guilt
was inevitably followed by ferocious retribution. But, while times have
greatly changed since the days when children of 8 and 10 years were
hanged for offences much less heinous than murder, it should be observed
that the purpose and effect of the presumption is still to protect children
between 10 and 14 from the full force of the criminal law.
I now turn to the arguments against abolition which Laws J. Q
mentioned. (1) The first is that it is the general rule not to alter the law,
either by statute or by developing the common law, so as to render an act
punishable in retrospect. I accept the point that an "offender" when
charged could scarcely say, "Unfair; when I transgressed, I thought my
act was only naughty and not seriously wrong." But, speaking objectively,
something which when done was not regarded as a crime will, if the court
below was right, ultimately turn out to have been one. D
(2) The second argument and the judge's answer appear, ante,
p. 12:
"(2) The presumption is of such long standing in our law that it
should only be changed by Parliament, or at least by a decision of
the House of Lords. But antiquity of itself confers no virtue upon the
legal status quo. If it did, that would assault one of the most valued E
features of the common law, which is its capacity to adapt to
changing conditions. The common law is not a system of rigid rules,
but of principles, whose application may alter over time, and which
themselves may be modified. It may, and should, be renewed by
succeeding generations of judges, and so meet the needs of a society
that is itself subject to change. In the present case the conditions p
under which this presumption was developed in the earlier law now
have no application. It is our duty to get rid of it, if we properly
can."

My Lords, I have already endeavoured to demonstrate that this excellent

principle cannot be applied in the present situation.
(3) I will not expand here on the doctrine of judicial precedent which Q
the judge has aptly described, ante, p. 12F-G. I cannot, however, agree
that the court was not bound by the current of authority, including the
decisions of the Court of Appeal mentioned, ante, p. 12H. I consider that
to classify the impugned doctrine as an "unargued premise" which was
"simply assumed to apply" takes too narrow a view of our doctrine of
precedent. The presumption, stated as a rule of law, was the major premise
and the facts of each case constituted the minor premise from which "
jointly the result was to be inferred. For support of this proposition I rely
on the observations of Lord Simon of Glaisdale in Lupton v. F.A. & A.B.
Ltd. [1972] A.C. 634, 658-659, where he designated the rule in Rylands v.
 37
1 A.C. C. (A Minor) v. D.P.P. (H.L.(E.)) Lord Lowry
A Fletcher (1868) L.R. 3 H.L. 330 as the major premise of the decision and
the facts of the case as the minor premise. I leave the point there because
the doctrine of precedent and the stare decisis rule, while still important,
are not decisive in your Lordships' House.
Mr. Henriques, presenting the respondent's case, frankly conceded that
the Divisional Court was bound by authority to recognise and apply the
presumption, but he submitted that the presumption was illogical in
" conception and bizarre in its effect. His written case contained submissions
based on the current educational standards of children and on the ever
earlier onset of their physical and psychological maturity, as witnessed by
the recent statutory abolition of the irrebuttable common law presumption
that boys under 14 are incapable of offences involving sexual intercourse
on their own part (Sexual Offences Act 1993). The written case also listed
Q examples of legislative and judicial changes of attitude towards young
children called as witnesses. Against this background counsel submitted,
not that the presumption should be swept away, but (echoing the 1954
proposal of Professor Glanville Williams) that in recognition of its frailties
your Lordships should by judicial intervention effect a change by laying it
down that the prosecution's initial burden of showing a prima facie case
against a child should be the same as if the accused were an adult but that
D the child should then be able by evidence to raise as a defence the issue
that he was doli incapax; it would then be for the prosecution to prove to
the criminal standard that the child was doli capax. That your Lordships
in a judicial capacity could make this change, which counsel characterised
as merely procedural, was an express and necessary part of his argument.
Of course, no one could possibly contend (nor did Mr. Henriques try
p to do so) that this proposal represents what has always been the common
law; it would be a change or a "development." It is quite clear that, as the
law stands, the Crown must, as part of the prosecution's case, show that a
child defendant is doli capax before that child can have a case to meet.
To call the proposed innovation a merely procedural change greatly
understates, in my view, its radical nature, which would not be disguised
by continuing to impose the persuasive burden of proof upon the
F prosecution. The change would not merely alter the trial procedure but
would in effect get rid of the presumption of doli incapax which must now
be rebutted before a child defendant can be called for his defence and the
existence of which will in practice often prevent a charge from even being
brought. This reflection must be enough to discourage any thought of
"judicial legislation" on the lines proposed.
Q In the course of his argument Mr. Henriques invited your Lordships
to take courage from the decision in Reg. v. R. [1992] 1 A.C. 599, whereby
your Lordships' House disposed of Hale's proposition that a man could
not be guilty of rape upon his wife. That case dealt with a situation in
which the wife had left home and thus was similar in its facts to a number
of cases in which the Hale principle had already been departed from. It
must, however, be acknowledged that the decision (since given statutory
" effect by section 142 of the Criminal Justice and Public Order Act 1994)
was quite general in its terms and thus contemplated that a husband living
with his wife could, if he forced himself upon her, have been charged with
rape contrary, it could be argued, to the non-retrospective principle of law
38
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

The distinction between the treatment and the punishment of child

"offenders" has popular and political overtones, a fact which shows that
we have been discussing not so much a legal as a social problem, with a
dash of politics thrown in, and emphasises that it should be within the
exclusive remit of Parliament. There is need to study other systems,
including that which holds sway in Scotland, a task for which the courts g
are not equipped. Whatever change is made, it should come only after
collating and considering the evidence and after taking account of the
effect which a change would have on the whole law relating to children's
anti-social behaviour. This is a classic case for parliamentary investigation,
deliberation and legislation.
I believe, my Lords, that we have reached the stage when the author
of a lengthy judgment (or a lengthy argument) needs an excuse for his F
prolixity. My excuse is that, reviewing a bold and imaginative judgment,
I have deemed it not only courteous but also necessary to demonstrate my
reasons for saying that the presumption is still part of our law, and not
just to assert the fact ;ondly, without suggesting the answer, which
I am not qualified to give, I hope that my survey may help to provide the
incentive for a much-needed new look at an undoubted problem. Q

LORD BROWNE-WILKINSON. My Lords, I have had the advantage of

reading the speech of my noble and learned friend, Lord Lowry.
I agree with him that the appeal should be allowed and that the
certified question should be answered in the affirmative.
For the reasons which he gives I am satisfied that the present law is
clear. As his speech discloses, the question has been the subject matter of
reports by Committees and White Papers from 1927 down to 1990. The
matter having been considered by the Government as recently as 1990 and
the decision not to introduce any change in the law taken, I cannot think
 41
1 A.C. C. (A Minor) v. D.P.P. (H.L.(E.)) Lord Browne-Wilkinson
A it is appropriate for the courts at this stage to change the law by judicial
decision. I prefer to express no view of my own as to what the law
should be.

Appeal allowed.

Solicitors: R. M. Broudie & Co., Liverpool; Crown Prosecution Service,

" Headquarters.

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

CrimeSumming upDefendant's characterJudge's direction

Defendant with no previous convictions testifying or giving pre-trial
G statement containing admissions and self-exculpatory explanations
Whether direction to include reference to credibility and propensity
Whether evidence of misconduct emerging at trial disentitling
defendant to direction
Y. and T., who had no previous convictions, and A., who had
no relevant previous convictions, were part of a group of 11
defendants who pleaded not guilty to counts alleging, inter alia,
H the fraudulent evasion of value added tax by the creation of false
invoices. A. did not give evidence but relied on self-exculpatory
statements made during interviews with customs officers during
the course of their investigation, when he also made various
admissions, to support both his defence to the charges and to