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Defence and presumption of doli incapax abolished

Sunday 3 May 2009 at 2:51 pm | In News | Post Comment

R v JTB [2009] HL
(Defences – defence and presumption of doli incapax 10-14 abolished
Statutory interpretation – mischief rule – ministerial statement other Parliamentary material)
D aged 12 incited other boys under 13 to engage in sexual activities; when the defence of doli incapax was withdrawn by the judge, he pleaded guilty to 12 counts.

He admitted the activity (anal penetration, oral sex and masturbation) but said that he had not thought that what he was doing was wrong.

The issue arose as to whether section 34 of the Crime and Disorder Act 1998 had abolished the presumption of doli incapax (where the prosecution had to prove D knew what he was doing was seriously wrong) as well as the defence (common law defence that D could raise, that he did not know what he was doing was seriously wrong). It was thought that the Act had left it open to the child to prove that, at the material time, he was doli incapax.

Held: Section 34 of the Act abolished both the defence of doli incapax and the presumption. The defence of doli incapax and the rebuttable presumption were two different things.

Mischief Rule
The meaning of s 34 could not be deduced from the language of s 34 alone. It was a legitimate aid to the interpretation of that section to look at the mischief that the section had been designed to obviate.

Wide use of the phrase
It was a legitimate aid to construction to have regard to the fact that the phrase ‘presumption of doli incapax‘ had been widely used to embrace both the presumption and the defence, so Parliament had intended to abolish both.

Ministerial Statements
The instant case was a rare case was where it was both legitimate and helpful to consider Ministerial Statements in Parliament under the principle in Pepper v Hart. The meaning of the section was, when read in isolation, ambiguous. The clause that was to become the section had been debated at some length in Parliament. Ministerial statements made the meaning of the clause quite clear. Furthermore, a proposed amendment had been moved and failed twice on the premise that the clause, as drafted, would abolish not merely the presumption but the defence of doli incapax.

Consultation Paper / White Paper
Parliament had been in no doubt as to the meaning of the clause, in part because in the Consultation Paper and the White Paper that had preceded the legislation the Home Office had made it quite clear what had been meant by abolition of the presumption of doli incapax.

Guilty
Comment: Pepper (Inspector of Taxes) v Hart [1993] applied.
At 10, the UK has one of the lowest ages of criminal liability in Europe, 8 in Scotland, 7 in Ireland.

Whole case here