The mental element of the offence II

 

Crime and Disorder Bill 1998

Standing Committee B, Official Report, 8 April 1998

Debate on what became the Crime and Disorder Act 1998 s 34p

 

Clause 31

Abolition of rebuttable presumption that a child is doli incapax

 

Question proposed, That the clause stand part of the Bill.

 

Mr. Clappison: We now come to the doctrine of doli incapax. I note on the selection list that there was an amendment to the clause, but its movers are not present. I shall not detain the Committee long on the question of doli incapax, because the Opposition will not oppose the Government’s proposal. However, in view of the importance attached to the issue in some quarters, we should say something about our views.

Doli incapax relates to the rebuttable presumption that children aged 10, 11, 12 or 13 are incapable of criminal responsibility. That presumption can be rebutted if the prosecution proves that a child knew that what he did was seriously wrong and not just naughty or mischievous. In short, the courts must be satisfied that a child knows the difference between right and wrong.

We have given careful consideration to the proposal to abolish the presumption. We know that some quarters have argued that the presumption should be reversed and that a child or his legal representatives should show that the child does not know the difference between right and wrong. We have listened to judicial authority and to practitioners and, on balance, we think that it is right that the rule should be abolished. We shall not oppose the Government even though there is a fair argument for the other point of view. We wonder if the operation of doli incapax is justified by the weight accorded to it by the Government in their presentation of youth justice issues. The doctrine has been with us since the reign of Edward III. It was widely thought that it had been abolished by the divisional court in 1994, until the House of Lords decided, a year later, that it had not been and that an Act of Parliament was needed to abolish it.

I am not aware that any great developments took place in the youth justice system during the period in which doli incapax was thought to have been abolished. I would be interested to hear of any such instances. However, the abolition of doli incapax for 10 to 14-year-olds is given a starring role in the Government’s ‘No More Excuses’ White Paper. On Second Reading, the Home Secretary went even further when he said:

‘Rules such as doli incapax and the extraordinary ruling in the Khan case . . . create a moving target before the offender is dealt with. All those factors add up to a system that is replete with excuse, and that is what we are trying to get away from.’--[Official Report, 8 April 1998; Vol. 377, c. 373.]

It would have surprised those who instituted the doctrine of doli incapax in the mid-14th century that they should be blamed for an alleged excuse culture in the youth justice system of the late-20th century.

The Home Secretary made some sweeping assertions, but what evidence are the Government using to back them up? My hon. Friend the Member for Gainsborough (Mr. Leigh) asked some probing questions about the Government’s evidence for their proposals with regard to the under-10s. We might ask the same questions about the operation of doli incapax and the over-10s. Will the Minister tell us what research the Government have carried out into the operation of doli incapax that warrants the Home Secretary’s assertions? I asked a parliamentary question about that matter. The Government told me that they were unable to say how many acquittals had resulted from the doctrine. They had no idea how it operated.

 

Mr. Michael: Will the hon. Gentleman say exactly where he saw words to the effect that the Government had no idea how it operated? That is rather different from saying that there are no statistics available for the way in which it has operated.

Mr. Clappison: I asked the Secretary of State what research his Department had commissioned in respect of the operation of the presumption of doli incapax and if he would publish it. The Minister gave the answer ‘None’.

Mr. Michael: Will the hon. Gentleman therefore withdraw the suggestion that we said that we did not know how the system was operating? We know how the system is operating. He asked specific questions about numbers and about our research intentions.

Mr. Clappison: No, I will not withdraw it.

Mr. Michael: Disgraceful.

Mr. Clappison: If the Minister will listen, I will clarify the point. I asked the Minister in a written question how many children had been found not guilty as a result of the operation of the presumption of doli incapax in each year for the last 10 years. He told me that that information was not collected centrally and that a not guilty outcome as a result of the presumption of doli incapax was neither in the interests of the child, or children concerned, nor in the interests of the public. He noted that it was important that the court was not prevented from dealing with the youngster when there was no doubt about the facts of the case. That is all very well, but the Government have no idea how the doctrine of doli incapax was operating in the youth justice system. If they do, perhaps the Minister will share that information with the Committee. When I asked my question, the Government were able to tell me how many cases there had been, but they did not know in how many it had been necessary for the prosecution to rebut the presumption of doli incapax.

In the light of the parliamentary answers that I received, I am justified in saying that the Government have not carried out any research and are not able to give us any illuminating information about the operation of doli incapax. They have made sweeping assertions on the matter based on slender evidence, if any. The Opposition do not intend to oppose the abolition of doli incapax, but I am entitled to make these observations. Now that I have heard the Government’s views on other issues relating to very young children in the justice system, I am becoming unsettled by the general picture that is emerging of their attitude towards children and young people. Much of what the Government described as nipping in the bud may not be in the best interests of children’s welfare and may not nip offending in the bud as the Government assert. On balance, after thinking about this carefully and considering all the legal authorities, I will not oppose the course that the Government are taking.

Sir Robert Smith (West Aberdeenshire and Kincardine): I do not know whether it is in order to talk to the amendment, I wish to talk to the clause and ask that, in pressing their argument for the change, the Government could make it quite clear what other actions they are thinking of taking to ensure that children should, if at all possible, avoid being brought to court. Finally there is a recognition that the Scottish system--

To continue the theme, we want to hear that the Government have taken on board the fact that it is far more effective to try to prevent children getting into crime. Confronting them with courts as the first point of dealing with them does not seem to make sense. We hope that in England some of the lessons learnt from the children’s hearing system and the children’s panel in Scotland can be taken on board and that there will be some recognition that such interventions may be a more effective way to proceed.

We hope that the change is being seen as part of a complete package and not just in isolation. It would be a change from a former Home Secretary who argued that the Government could never countenance children’s hearings in England because it would be against the concept of natural justice. It is an interesting comment on the United Kingdom that someone can sit in the Cabinet presiding over what he believes to be a complete travesty of natural justice in one part of the United Kingdom, while not accepting any debate in another part. I hope to hear that the Minister recognises that there are lessons to be learnt.

Mr. Edward Leigh (Gainsborough): I am not in any way trying to make a debating point. The hon. Gentleman is the only Scottish Member on the Opposition Benches. I am genuinely interested in why the criminal age of responsibility in Scotland is as low as eight. What is the practical experience on the ground? Is it true, as my briefing tells me, that children are rarely brought before the courts?

Sir Robert Smith: The age is low for the historical reason that each country in Europe has a different age which has evolved with time. The practical reality is that children are brought before the children’s panel where the whole issue is confronted and the family is involved. Discussions are held on the cause of their offending behaviour and the actions that can be taken to try to avoid it in the future. By discussing those issues and involving not just the children but others concerned with their care, the issue is tackled in the round.

Serious cases still end up in court but the system weeds out all the cases where court is not the appropriate way to deal with children. It then hopefully ensures that offending behaviour does not become part of their future lifestyle. In the serious cases where guilt has to be confronted and the sanctions of the court are needed, they obviously have to go to court; but that should be the exception rather than the norm. I hope that something like that can be built upon in England and that the Minister can give us some reassurances about that.

Mr. Malins: I rise to speak about doli incapax. This is a subject where there is clearly room for differing views. My hon. Friend the Member for Hertsmere and I agree on so many things, but in a broad church we are entitled to disagree on certain matters.

Mr. Michael: You can tell the Whip is out of the Room.

Mr. Malins: While it may be good sport for the Minister to point to differences of opinion among Conservative Members on the matter, he will nevertheless recognise that it is one of those serious issues on which people have rather different views. It is sheer madness for us to say as a Committee, that we should effectively treat a 10-year-old the same as an adult for the purposes of criminal responsibility.

Mr. Michael: Can the hon. Gentleman point to anything that I or the Home Secretary have said in support of the changes that suggests that we should deal with a 10-year-old in the same way as an adult?

Mr. Malins: I hope that I have not missed the point entirely. I understand that the purpose of the clause is to reduce the age of criminal responsibility to 10.

Mr. Michael: The age of criminal responsibility is 10. The doli incapax doctrine suggests that we should maintain a theory that, in general, youngsters between the ages of 10 and 14 do not understand the difference between right and wrong. The doctrine therefore sets a test that prevents the courts from dealing with such children unless that point is proved.

Mr. Malins: I chose my words without due care. I sought to express my belief that children should be treated very differently from adults. Is the Minister telling me--I hope that he will forgive me if I am wrong--that clause 31 will impose on children aged 10 to 13 a mens rea very different from that which applies to grown ups?

Mr. Michael: It is important to deal with offenders in a way that is consistent with age and development. That is one reason why younger people are dealt with in separate courts, which take such factors into account when making decisions about the youngsters that appear before them.

Mr. Malins: We must be careful to discover what we are trying to achieve in our debate. I hope that I am supported by my hon. Friends in saying that the doli incapax presumption should remain. I share that view with Barnados, which has made submissions to the Committee and to the Government. It says that it would be wrong to abolish the presumption that a child is doli incapax. In its briefing document it says:

‘Whilst it is common sense to presume that most children know the difference between right and wrong in a general sense, we do not believe that this should automatically lead to the conclusion that they can be expected to assume the same degree of responsibility for their actions as an adult.’

Mr. Michael: The hon. Gentleman quotes from a brief from Barnados, which cares deeply about the impact of legislation on children and young people. I say that, having worked closely with Barnados workers on the ground over the years. However, I invite the hon. Gentleman to examine the impact of the doli incapax rule. What is he arguing for when he says how the doctrine will prevent consideration of some cases?

Mr. Malins: I will tell the Minister exactly what I am saying. I will quote from Archbold so that Committee members may be aware of what the doctrine means and how it applies in everyday life in the courts. Archbold says:

‘there is a presumption that a child between these ages’

--that is, between the ages of 10 and 14--

‘is doli incapax; (b) this presumption can only be rebutted by clear positive evidence that the child knew that his act was seriously wrong (as opposed to mere naughtiness or childish mischief) at the time when he did it; (c) mere proof of the doing of the act charged, however horrifying or obviously wrong that act might have been, cannot establish the requisite guilty knowledge and rebut the presumption’.

That is the law as it stands.

Archbold continues in relation to particular cases, and this graphically illustrates the importance of the doctrine:

‘Proof that the child runs away after doing the prohibited act is not sufficient to rebut the presumption; running away is consistent with a belief in the child that what he has done was naughty and/or in breach of some school or parental rule. The nearer the child is to 10 years the stronger the evidence that is required to rebut the presumption’.

It goes on, and this is very telling:

‘As in a bad home a child is likely to be brought up without knowledge of right and wrong, evidence of home background and circumstances, even though it may be on other issues highly prejudicial to the child, should be admitted on the issue of knowledge of wrong’.

That point about child’s upbringing affects its maturity, its ability fully to understand the difference between right and wrong, its habits, family standards and so forth.

 

Mr. Michael: Will the hon. Gentleman explain how the doli incapax doctrine helps the court to consider what should happen to a particular youngster who has committed a particular offence?

Mr. Malins: I shall give the Minister a particular example. Let us consider a youngster of an age to which the doctrine of doli incapax is applicable who commits an act that constitutes the actus reus of theft--the entry into the shop, the taking of an item and the going away from the shop. If I do that, the court has to prove that my intention was to steal--a full mens rea direction about dishonesty will be given. Theft is the intention permanently to deprive someone of his property: it is a dishonest intention. That is fine for an adult, but does the Minister accept that stronger protections are needed for youngsters in relation to the level of mens rea--or the level of guilty knowledge--necessary for a court to convict a child? That is a practical application of the doctrine.

Mr. Michael: I do not think so. If factors pertaining to a particular youngster can be put before the court, is it not important for that court to consider what is appropriate in his particular case, having regard to his state of development and his understanding of the act that he has committed, and to come to a decision that will help to prevent his future offending? That would not only protect potential victims in the wider community, but be in the best interest of the child.

Mr. Malins: I understand the Minister’s point, but should not a particular standard be required for the child--in shorthand terms, that he knew that what he did was seriously wrong, as opposed to mere naughtiness? What troubles me about this clause, clause 32 and earlier clauses in the Bill is that we are moving far too far in the general direction of imposing on young people the same standards that we are imposing on older people. I am worried when I hear that no minimum age limit is being proposed for some of the orders and that a child under 10 can be taken to court, albeit a magistrates court, with all the panoply of criminal proceedings. I wonder whether the different nuances of civil and criminal proceedings can be understood by the child.

Mr. Michael: Magistrates courts dealing with care proceedings are not dealing with criminal matters. Is the hon. Gentleman addressing his criticism to all magistrates courts when they are dealing with non-criminal issues?

Mr. Malins: No, because there is a difference in a child’s mind between appearing in court in care proceedings, for example, and going before a magistrates court for what might be described as naughty behaviour. To a child, that is tantamount to saying, ‘You have done wrong, you will be punished.’

Mr. Michael: I suggest that the hon. Gentleman goes back to his source at Barnardos and discusses what goes through the minds of children in respect of care proceedings. Often, a child suffers a considerable burden of guilt, some of it unjustified, but it exists. The hon. Gentleman’s distinction is clear in the minds of lawyers, who know the law, but not in the minds of children.

I accept that it is important not to be excessive in these cases. Children under 10 must be dealt with carefully so that there is no suggestion that criminal matters are being considered, but it is very difficult for a child to make that distinction even when care issues are being considered in a magistrates court.

Mr. Malins: Other colleagues want to speak and we are coming to an important debate on the next clause. I am aware of time constraints and of what might happen at about 6 pm. It may, therefore, be appropriate for me to sit down now, as I have made my point. However, I hope that Government Members might share some of my concerns: the hon. Member for Wellingborough (Mr. Stinchcombe) seems to have a conscience and to know about the practice of the law. He may have some sympathy with my point of view. However, I remain increasingly unhappy that the Bill contains so many references to ‘age 10’. It goes too far towards bringing into the criminal justice system children who are too young to be part of it.

Mr. Leigh: This is a difficult clause. Against the Government is Barnardos opinion, quoted by my hon. Friend the Member for Woking, that the proposal

‘would place a child aged over 10 years in the same position as an adult at the point at which innocence or guilt is being determined. The assumptions on which the Bill are based fly in the face of opinion that the child is still developing and maturing during the teenage years.’ That, basically, is the purport of my hon. Friend’s case.

At first sight, I was sympathetic to the point of view of my hon. Friend the Member for Woking, especially as the presumption has been in place since the time of Edward III. Conservatives should remember Lord Falkland’s dictum that when it is not necessary to change it is necessary not to change. One of the problems with Conservatism in recent years is that we have tried to be too radical in too many areas. I am beating my breast now and apologising for the shortcomings of the Government whom I supported. However, it should be said that the Government, having considered matters carefully, came down against changing the presumption as recently as 1990.

In support of my hon. Friend’s view is the fact that the Bill will reduce the age of criminal responsibility to one of the lowest in Europe. Only in Cyprus, Ireland, Liechtenstein, Malta and Switzerland will the age be lower than in this country. The age in the United States is 18, which is very high. The matter is of such importance that we should consider it on Report, when we have more time.

Against my hon. Friend’s view is that the presumption existed in our law because the penalties that the law could impose were so gruesome and draconian.

Mr. Clappison: Speak for medieval England!

Mr. Leigh: My hon. Friend says that I should speak for medieval England, which I am happy to do. My hon. Friend the Member for Woking may wish to comment on the following remarks made by Glanville Williams, writing in the Criminal Law Review in 1954. It is perhaps the clincher; it is probably why my hon. Friend the Member for Hertsmere is right not to vote against the Government on this occasion. Glanville Williams stated that in the present day--in 1954--the ‘knowledge of wrong’ test stood in the way, not of punishment but of treatment. The article said:

‘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 criminal law. It is perhaps even possible to argue that the tests should now be regarded as even legally obsolete. The test was designed to restrict the punishment of children and should not now be used where no question of punishment arises.’

Those are wise words. Perhaps we should move on and consider the presumption carefully.

We need to know more about the provision’s operation in practice. Our aim is not primarily to punish children from the ages of 10 to 14; we should try to direct their behaviour. If I understand the Minister correctly, he does not suggest that children aged between 10 and 14 will be treated in the same way as adults. My hon. Friend the Member for Woking pressed the Minister on that. I believe that my hon. Friend is right: it may not be the current practice in the courts, but once the presumption is abolished, children will be treated in the same way as adults. We must consider that carefully.

Mr. Malins: When the Minister responds to our useful debate, I hope that he will explain in detail how 10 to 14-year-olds will be treated differently from adults. The same burdens and standards of proof must apply in every criminal case: the burden is on the prosecution and the standard of proof is high. But we are considering intent--my hon. Friend is right to urge the Minister to focus on that.

Mr. Leigh: It is vital. The presumption that my hon. Friend quoted from Archbold is sensible. It states that the prosecution must establish beyond reasonable doubt that the child knew at the relevant time that what he was doing was seriously wrong and not merely naughty or mischievous.

The Minister should share with the Committee the practical experience of the courts and explain why legal opinion, recent criminal cases and criminal records suggest that the presumption is no longer workable. The Government are taking a serious step after many centuries.

Why not reverse, rather than abolish the presumption? The court would then start with the presumption that children of 10 to 14 were capable of acting with criminal intent, but that a child would be acquitted if the defence could prove on the balance of probabilities, that the child did not know that the action in question was seriously wrong. I do not have a settled view on abolition or reversal, but the point is interesting, and although it was considered in the consultation document, it has not been made in the debate. I hope that the Minister will respond to it.

Mrs. Eleanor Laing (Epping Forest): I find myself at odds with some of my hon. Friends on the matter, and I should be grateful if the Minister would elaborate on a few points.

Have the Government considered where the line of criminal responsibility should be drawn? The hon. Member for West Aberdeenshire and Kincardine (Sir R. Smith) rightly pointed out that the age of criminal responsibility in Scotland is and always has been eight. I say that it always has been eight, but it was once seven. Some members of the Committee might allege that children in Scotland are in some way more responsible or mature than their counterparts in England. I see that some hon. Members might possibly agree with me, but far be it from me to suggest it--

Mr. Michael: You will not get a majority.

Mrs. Laing: As usual, the Minister is right. I am not seriously suggesting that those of us who were brought up in Scotland were more mature at eight than those who were brought up in England. I want merely to highlight the fact that many schools of thought exist--each one thought to be right in the relevant country. I have it on good authority that the age of criminal responsibility in Germany is 14. There are vast differences in the western world about where to draw that line.

Was research done before the clause was drafted, and if so, what were its conclusions?

As has been mentioned, the doctrine of doli incapax was originally introduced in the 14th century, when it protected 10 to 13-year-olds from harsh adult justice. Surely things have changed significantly, so that rather than being exposed to harsh adult justice, a child is in the 1990s more likely to be helped than punished on being found guilty of a crime at that age. If we do not abolish the doctrine of doli incapax, we shall be denying another chance to children who, if found guilty, could be protected, given additional education or removed from unfortunate surroundings. That view of the matter leads me to support the clause.

My hon. Friend the Member for Woking made a very good case about the way in which 10-year-olds should be treated in the context that we are discussing. However, my concern is not with them, but with 13-year-olds. If a person is considered to be a child and therefore doli incapax until the age of 14, someone a week short of his or her 14th birthday can escape justice and proper punishment. In the real world today, 14-year-olds--both girls and boys--are frequently parents.

Mr. Leigh: Frequently?

Mrs. Laing: Occasionally.

Mr. Malins: I am sorry; my attention was drawn elsewhere and I misheard my hon. Friend. Did she say that children are often parents at 13 or 14?

Mrs. Laing: I take my hon. Friend’s point. Perhaps I was exaggerating in using the word ‘frequently’, which I withdraw. I merely point out that while the Committee is right to debate the issue of 10-year-olds, young people some weeks or months short of their 14th birthday are leading adult lives. As a result of unfortunate circumstances, such as ignorance or the lack of the chances that we should like children to have, often--or, to keep my hon. Friend happy, I gladly say sometimes--boy and girls aged 14 are parents. They act in an adult fashion.

Sir Robert Smith: I hope that a signal will go out from the Committee that it is not very adult behaviour to become a parent at 14.

Mrs. Laing: I agree that it is unfortunate behaviour and that the Committee is not encouraging 14-year-olds to become parents. However, becoming a parent is behaving in an adult fashion.

Mr. Michael: The hon. Lady is in danger of being misinterpreted by some Conservative Members. Her point is perfectly valid. 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 and to help them in the circumstances that the hon. Lady has outlined.

Mrs. Laing: I thank the Minister for interpreting my point so succinctly.

It would be sensible to examine whether children over the age of 12 should be considered as capable of crime and capable of understanding right from wrong. There is a considerable difference between a 10-year-old and someone who is almost 14. That is why I asked the Minister whether research had been carried out into the behaviour of 10, 11, 12 and 13-year-olds.

Will the Minister confirm that the abolition of the rebuttable presumption of doli incapax will merely change the balance of proof? Is a young person, aged 10 or 11, more likely to be convicted, therefore, and to receive the help offered by the system? Alternatively, if the burden of proof were stricter and there was no conviction, the child might slip through the net. At the same time, an older child, aged almost 14, and living in an adult world and behaving in an almost adult fashion, might less easily escape the punishment, if the court considered that there were mens rea and that the child was capable of understanding right from wrong.

Mr. Michael: I shall start with the point made by the hon. Lady. I agree with her. Abolition of doli incapax would not prevent the court from considering an offence in relation to the age and maturity of the child. The assertion of doli incapax prevents the court from ensuring that reparative action and appropriate rehabilitation can begin as soon as possible, when a young person is behaving in an unacceptable way.

The abolition of doli incapax would allow intervention to prevent reoffending and allow the possibility of stopping that youngster from engaging in activities that would be likely to damage his future--perhaps I should say his or her future, but it is more often boys who need that form of attention and intervention. Abolition is in the interests of the child, of the potential victims and of the wider community. It is certainly in the interests of the victim of the particular offence that the matter should be dealt with by the court and that the doctrine of doli incapax should not provide a senseless barrier to the court’s ability to act.

The hon. Lady made a number of good points. However, I should like to deal specifically with her remarks about the age of criminal responsibility in order to set that matter on one side. She asked whether the Government had considered changing the age of criminal responsibility. The answer is no. She is right to refer to the fact that children develop at different rates. Many children develop a great deal between the ages of 12 and 14. There might be other arguments about whether the age of criminal responsibility should be 10, or 12, or 14, or eight--to take the Scottish direction--but they are not germane to the debate about doli incapax.

There is no intellectual argument for maintaining the doctrine of doli incapax. It is an obstacle to justice for everything, especially the young person involved. Children today are not subject to the draconian penalties of former times; the protection offered by doli incapax against overly harsh punishment is no longer appropriate. That view was shared by the House of Lords, which, following the case of C v. DPP recommended that Parliament should review the presumption, which had been inconsistently applied and was capable of inconsistent results. The House of Lords was right so to advise us and we have taken their lordships’ advice.

The consultation document, ‘Tackling Youth Crime’ asked the view of respondents how best to carry forward a reform of doli incapax. Of those who responded, 111 felt that the presumption should be abolished, 48 though it should be reversed and only 20 believed that it should be retained in its current form.

The hon. Member for Woking rightly said that there is room for different views on the issue, and there are several different views on the Conservative Benches. I acknowledge the integrity of those who disagree, especially those whose primary concern is for children, but I believe that their views are entirely mistaken and misguided. I respect the hon. Gentleman’s sincerity, but I do not regard the setting of 10 as the age of criminal responsibility as a mistake. It is simple and straightforward, and 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.

The hon. Member for Gainsborough apologised for not being Conservative enough, but he should have apologised because his Government did not tackle this mischief, and it is a mischief that children between the ages of 10 and 14 are not helped because the courts cannot consider their cases and offer assistance.

Several hon. Members, especially the hon. Member for Hertsmere and the hon. Member for West Aberdeenshire and Kincardine--I am gradually getting a grasp on his interesting constituency--invited me to say something about the context in which the issue is being considered and about our attitude to children and young people. Our attitude is that we should bring out the best in children and young people and discourage the worst. There needs to be a balance in our approach; we must be tough on crime and tough on the causes of crime and we need to provide opportunities for young people. For example, youth action groups give youngsters an opportunity to look at the problems that crime causes and to come up with their own solutions. That is an excellent approach that we want to encourage.

We want positive intervention in the lives of individual young people. The youth offending teams ensure that a youngster’s educational development, health and family background are dealt with, as well as the offence that brings him before the court. It is far more effective to intervene to stop youngsters reoffending than to ignore the activities in which they are becoming involved.

I tell the hon. Member for West Aberdeenshire and Kincardine that we are glad to learn from Scotland and from other countries. The White Paper ‘No More Excuses’ sets out our proposals for the reform of the youth courts. Part of those reforms will include reform built on principles underlying restorative justice and making youngsters face the fact that they have damaged other people and that they should do something to repay a debt to a victim or to society. We propose that children who end up in the youth court for the first time and plead guilty can be referred by the court to a youth panel. Panel members will draw up a contract with the young person setting out clear requirements that will, among other things, tackle the causes of the offending behaviour.

We are considering ways in which parents can become more involved. On one hand, we will require parents to take responsibility for their children and offer the mechanism of the parenting order, and on the other we will look for ways of engaging parents and young people constructively in what has gone wrong in their lives. We want to examine the specific offence and wider examples.

We want to intervene more quickly. The final warning means that instead of having repeat cautions, giving youngsters the message that nothing much happens when they do something wrong, there will be interventions. There will be the final warning, which draws a clear line for that youngster and involves the youth offending team asking questions about the behaviour at that early stage. Questions such as whether the young person is attending school, or whether truancy is a problem, would be asked. These issues will be dealt with later, but the report of the social exclusion unit has highlighted the association between truancy and offending - particularly later, serious offending. That point needs to be tackled, but all the matters that I have referred to are important to society and to the reduction of crime and protection of the community - as well as to the interests of the young people who come before the courts.

The hon. Member for Hertsmere, apart from appearing a woolly-minded old liberal who cannot bring himself to vote against the clause -

Mr. Clappison: I am agreeing with the Minister.

Mr. Michael: I think I would characterise the hon. Gentleman’s speech as agreeing with faint damns. He is wrong to say that the Government have no idea how the system works. The hon. Gentleman raised the question of the number of cases in which it had been necessary for the prosecution to rebut the presumption of doli incapax. In all prosecutions involving children under 14 the prosecution must rebut that presumption; that is the whole point and the reason we want to get rid of it. In 1996, the most recent year for which statistics are available, 7,125 children under 14 were proceeded against in a magistrates court. The presumption of doli incapax has been in force over the past five years except for a period between a divisional court judgment in 1994, which ruled that it was no longer part of English law, and the House of Lords judgment in 1995 that reinstated it. That was referred to earlier, and surely such inconsistency of treatment is nonsensical.

The hon. Member for Hertsmere also referred to research, as if its absence were a problem. The lack of research is a problem only if one is not sure what the problem is. In fact, it is clear. In March 1995 the House of Lords commented, in the case of C. v. DPP that the common law presumption of doli incapax had been inconsistently applied. In 1997 we published our proposals. There has been considerable debate for some time, and the problems are clear to the courts.

The essence of the doli incapax doctrine is that children under 10 are below the age of criminal responsibility, and nothing in the proposal will change that. 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.

The remarks of the hon. Member for Hertsmere contained a suggestion that under the clause we should be treating children under 14 as if they were adults. That is not true. For all juveniles aged between 10 and 18 who are convicted of a criminal offence, the court has available to it a different range of sentences, graduated by age and taking into account the age and development needs of the person convicted. The range would be widened still further by the Government’s new proposals, which would strengthen the capacity of the system to deal with child offenders in the most focused way. For those reasons we do not believe that the abolition of the presumption will conflict with international obligations under the United Nations convention on the rights of the child or the European convention on human rights. It has been suggested that conflict would arise, but I do not believe that. We shall be applying common sense.

If children of the age in question have committed a criminal offence, it is more, not less, necessary for their wrongdoing to be acknowledged, and corrective action to be taken. Appropriate punishment and effective intervention at that stage would prevent many such children from becoming tomorrow’s adult criminals. Neither justice nor the young people are served by permitting the latter to evade responsibility for their actions.

Anecdotal examples can be given in multitudes, but I recently heard the case of three youngsters who were involved in a serious arson. The doli incapax doctrine prevented the court from dealing with them. I am certain that whatever the rights and wrongs and whatever the degree of culpability, that was a serious offence. It was regarded in that way by the victims and the community. In such circumstances, is it not sensible for a court to have the unfettered right to use its judgment in the appropriate way that I suggested--that is, appropriate to the needs of the child at its particular age and development--to ensure that the child is put on the right track? Is it not neglect for society to allow the doctrine of doli incapax to stand in the way? I hope that all members of the Committee will support the clause.

Question put and agreed to.

Clause 31 ordered to stand part of the Bill.