Francis Bennion - 3rd Briefing on Sexual Offences Act 2003

As we have seen, clause 14(1) of the Sexual Offences Bill [section 13(1)] deems a person who is under 18, and therefore an infant in law, to be aged 18, and therefore an adult in law. It reads-

A person under 18 commits an offence if he does anything which would be an offence under any of sections 10 to 13 if he were aged 18.

At first glance this instance of statutory deeming appears to make perfectly good sense, but on further examination it raises questions. [80] Let us look again at clause 10(1) of the Bill. It reads-

The elements of a criminal offence consist of a physical act, called the actus reus or guilty act, together with a mental element called the mens rea or guilty mind. A leading textbook on criminal law says-

‘. . . until the twelfth century a man might be held liable for many harms, simply because he caused them, without proof of any blameworthy state of mind whatsoever on his part. Under the influence of Canon law and the Roman law, a change gradually took place and the courts began to require proof of an element of moral blameworthiness – a “guilty mind” of some kind. In the developed common law of crime, some such mental element is always necessary, and is known as mens rea.’ [81]

Professor Andrew Ashworth says that the essence of the principle of mens rea is that ‘criminal liability should be imposed only on persons who are sufficiently aware of what they are doing, and of the consequences it may have, that they can fairly be said to have chosen the behaviour and its consequences’. [82] Is this test satisfied in the following case?

A is a girl of 9. Because he asks her to, A intentionally touches the penis of B, a boy she knows to be aged 15.

Clause 14(1) says that A, being under 18, commits an offence if she does anything which would be an offence under section 10 if she were aged 18. Has A done something which would be an offence under section 10 if she were aged 18? An affirmative answer requires that the ‘something’ A did corresponds exactly to the elements of the section 10 offence as set out above.

We see that this piece of statutory deeming will not work. One cannot pretend that a girl of 9 is an adult woman of 18 because the mental element does not fit. One could not realistically assert that what A actually did in the case given (including the mental element) would have been an offence if done by a woman of 18 because it could not have been done by a woman of 18. A normal woman of 18 does not have the inchoate mental equipment of a child of 9. She has adult, mature mental equipment. The mens rea component does not work, and the deemed translation cannot be made.

There is another factor to be taken into account. Professor Ashworth tells us that in England and Wales ‘the minimum age of criminal responsibility is 10, substantially lower than the minimum age in many other European countries, where teenage children are dealt with in civil tribunals up to the age of 14, 16, or even 18’. [83] At common law the minimum age of criminal responsibility is 7. It was raised to 8 by statute in 1933. [84] Thirty years later it was again raised to the present age of 10. [85] Does the literal meaning of Clause 14 override this general rule and make a child of 9 liable? Probably not, though the point would need to be argued. [86]

Now let us repeat the example given above, this time raising A’s age to 12. By fingering B’s penis has 12-year old A done something which would be an offence under section 10 if she were aged 18? Or do we have to answer in the negative because a normal woman of 18 does not have the inchoate mental equipment of a child of 12, so that as before the mens rea component does not work and the deemed translation cannot be made?

At common law, that is without the intervention of statute, a child aged 10, 11, 12 or 13 is presumed incapable of committing a criminal offence unless the contrary is proved by the prosecution. This is known as the presumption of doli incapax from the Latin dolus, evil. It means that the onus is on the prosecution to prove beyond reasonable doubt that the child was aware at the time that what he or she was doing was seriously wrong, as opposed to merely ‘naughty’ or ‘mischievous’.

The presumption of doli incapax was abolished in England and Wales by the Crime and Disorder Act 1998 s 34. Carefully avoiding Latin in the fashionable way, it reads: ‘The rebuttable presumption of criminal law that a child aged 10 or over is incapable of committing an offence is hereby abolished’. Section 34, both in its intention and in the way it was drafted, was founded on a remarkable mistake made by those responsible. They forget mens rea. Here’s how it happened.

In 1997 the new Blair Government published a consultation paper Tackling Youth Crime. In the course of it they said they proposed to ‘modernise the archaic rule of “doli incapax” which currently presumes - unless proved otherwise - that a child under 14 does not know the difference between right and wrong’. Use of the term ‘modernise’ suggests that the concept that a child might not be mature enough to know right from wrong in the sense used by the doli incapax presumption, namely that the child was not aware at the time that what he or she was doing was seriously wrong, as opposed to merely ‘naughty’ or ‘mischievous’, was not intended to be entirely abolished but merely brought up to date. There was to be no longer an automatic (though rebuttable) presumption that a child under 14 was incapable in this sense, but in itself that did not mean that the possibility of such incapacity would not still have to be considered by the court in an appropriate case.

Later in 1997 the consultation paper was followed by a white paper entitled No More Excuses [87] . This proposed various reforms in the handling of youth crime, including the abolition of the doli incapax presumption. It justified this as follows-

4.3 Currently, for a child aged over ten but under 14 to be convicted of a criminal offence in England or Wales, the prosecution must rebut the presumption of doli incapax as well as prove the offence. This means they must prove beyond reasonable doubt that the child not only did the act in question, but that he or she knew that what they were doing was seriously wrong, rather than just naughty. To rebut the presumption, the prosecution must adduce evidence separate from the facts of the alleged offence, to show the young person knew the act in question was seriously wrong. This can lead to real practical difficulties, delaying cases or even making it impossible for the prosecution to proceed.

4.4 The Government believes that in presuming that children of this age generally do not know the difference between naughtiness and serious wrongdoing, the notion of doli incapax is contrary to common sense. The practical difficulties which the presumption presents for the prosecution can stop some children who should be prosecuted and punished for their offences from being convicted or from even coming to court. This is not in the interests of justice, of victims or of the young people themselves. If children are prosecuted where appropriate, interventions can be made to help prevent any further offending.

4.5 The consultation paper Tackling Youth Crime sought views on the Government’s proposal to abolish - rather than reverse - the presumption of doli incapax. The Government remains of the view that abolition is necessary to remove the practical difficulties prosecutors and courts face under the current law and which they would continue to face if the presumption were reversed, rather than abolished.

The White Paper was followed by the Bill which became the Crime and Disorder Act 1998. Section 34 of this abolished the doli incapax presumption. In the debates the Government showed they entirely misunderstood the purpose of the presumption. In Standing Committee B the Minister Mr Alun Michael MP said-

‘The result of the doli incapax rule is that the youngsters who are subject to pressures that are not appropriate to their age are prevented from receiving the help of the courts. They are not being protected from the law, but are prevented from receiving the benefits of the law that are meant to nip their offending in the bud . . .’

This overlooked the elementary need for the prosecution to prove the child defendant guilty of the offence charged before the court’s powers can be brought into play to ‘help’ him or her. That means proving both the actus reus and the mens rea. If the child is too immature to form the necessary mens rea he or she must be found not guilty. That reflects what has been called the golden thread that runs through English criminal law, the duty of the prosecution to prove the accused’s guilt. [88] Mr Michael seemed to accept this when he said ‘above the age of 10 – the age of criminal responsibility as it now stands in law - the courts must take account of the maturity and development of the child concerned’. He went on to say-

‘The presumption that generally children aged between 10 and 14 do not know the difference between right and wrong defies common sense. Anyone who has worked with children in that age group knows that they have a very well developed sense of right and wrong, and if that is not so in a particular case, evidence of the problem should be brought before the court. It is better for the court to take account of the offender’s age and maturity at the point of sentence.’ [89]

The italicised words indicate the Government recognised that proof of the child’s inability to know that what he or she did was ‘seriously wrong’ would rule out liability. [90] The last sentence is unfortunate in indicating failure to grasp that a child cannot be sentenced unless he or she has been convicted, and that he or she cannot be convicted if it appears that he or she is too immature to grasp the reality of the offence.

The next three chapters contain material illustrating the doli incapax controversy. They are included because the controversy throws light on matters discussed in this chapter. Chapter 12 gives the report of the Standing Committee debate on the Government Bill which abolished the doli incapax presumption. Chapter 13 gives considerable detail on the recent New South Wales decision, after a great deal of research, to retain the doli incapax presumption in line with the rest of Australia and New Zealand. Chapter 14 gives the report of a recent case.

It seems from the foregoing that the clause 14 [section 13] deeming is for various reasons unsound. The notion of what the legal position regarding the child’s act would be if the child in question had been an adult instead of a child is unrealistic. One ought not to found criminal liability on such an awkward pretence, especially where it is children who are the subject-matter of the exercise. What the courts will make of it if it is not altered one simply cannot forecast.

[80] For statutory deeming see Bennion, above n 28, index entries for ‘deeming’.

[81] Smith and Hogan, Criminal Law (1st edn 1965) p 35.

[82] Andrew Ashworth, Principles of Criminal Law (4th edn, 2003), p 158.

[83] Ibid, p 205.

[84] Children and Young Persons Act 1933 s 50.

[85] Children and Young Persons Act 1963 s16 (1).

[86] As to the implied application of general rules of criminal law see Bennion, above n 28, s 334.

[87] CM 3809.

[88] Woolmington v DPP [1935] AC 462.

[89] Emphasis added.

[90] The controversy over whether clause 14 should apply only to non-consensual acts of course raises the question whether it would be right to hold that A’s act was indeed ‘seriously wrong’ anyway.