4.5 International
Developments in relation to the Doctrine of doli incapax
4.5.1 Review of
doli incapax in South Africa
Section 28 of the
Constitution of South Africa defines a child as a person under
18 years of age. Section 28 also enshrines certain rights relevant
to juvenile justice that then apply to those below 18 years.
In South Africa
the minimum age of criminal capacity is determined by the doli
capax/incapax rule. Below the age of 7 the child is irrebuttably
presumed to lack criminal capacity. Between 7 and 14 there is
a rebuttal presumption of doli incapax, that children
are deemed to lack criminal capacity unless the State proves
that the child in question can distinguish between right and
wrong and knew nothing of the wrongfulness of the offending
at the time of commission of the offence.
The South African
Law Reform Commission Issues Paper 9.31 (August 1997)
notes that the presumption is all too easily rebutted and it
in fact does not present an impediment to the prosecution and
convictions of young people. Examples are given of mothers being asked if
their children understand the difference between right and wrong,
and an answer in the affirmative being considered sufficient
grounds to rebut the presumption.
In interpreting
doli incapax the South Africa courts appear to not necessarily
follow English or Australian interpretation of the doctrine
in regard to the evidence required to rebut the presumption.
The South African
Courts have noted that caution should be exercised where the
accused is illiterate, unsophisticated and moreover a child
with a limited grasp of proceedings. Statistics quoted in the Law Reform Commission
Paper illustrate that in a sample of 970 cases fewer than 10%
concerned children below the age of 14. No child of 10 or younger
was actually tried in a criminal court. In 80% of the cases
where the accused was 12 years or younger, no criminal trial
eventuated.
The Issue Paper
canvassed a number of options including raising the age of criminal
capacity to 10 and retaining the presumption for children 10-14,
with a criminal standard of proof required to show capacity
and state led expert testimony on the accused child’s development.
It is not known whether any of the proposals are now law in
South Africa.
4.5.2 Statutory
Incorporation of doli incapax in New Zealand
Like Queensland,
Tasmania, Northern Territory and Western Australia, New Zealand
has given legislative recognition of the doli incapax
principle. Section 22(1) of the Crimes Act 1961 (NZ) states:
No person shall be convicted of an offence
by reason of any act done or omitted by him when of the age
of 10 but under the age of 14 years, unless he knew either that
the act or omission was wrong or that it was contrary to law.
4.5.3 Recent
History of doli incapax in United Kingdom
The presumption
has been in existence since the fourteenth century. In 1989
the British Law Commission included the presumption in their
Draft Criminal Code. It was said the presumption should be included
unless there was a raising of the age of criminal responsibility.
In 1990 the then Conservative Government recommended the presumption
be maintained-
‘The Government
does not intend to change these arrangements which make proper
allowance for the fact that children’s understanding, knowledge
and ability to reason are still developing’.
There was brief
period in the 1990s when the presumption was dispensed with.
This was due to the 1994 decision of Mr Justice Laws of the
Divisional Court in the case of C (A Minor) v Director of
Public Prosecutions [1994] 3 WLR 888 (see above).
This decision was overruled on appeal to the House of Lords
C (A Minor) v DPP [1995] 2 WLR 383, where it was held
that doli incapax was a rule of the common law that could
only be abrogated by statute. As stated, this decision was recognised by
the NSW Court of Criminal Appeal as reflecting the common law
position in New South Wales.
In his judgement,
Lord Lowry recommended that, ‘there is a need to study
other systems… Whatever change is made, it should come only
after collating and considering evidence and after taking account
of the effect which a change would have on the whole law relating
to children and anti-social behaviour’
This recommendation
appears not to have received much notice, as the government
looked to radically reorganise the youth justice system. The
Government decided to abolish doli incapax, a decision
that was explained in a White Paper . This paper formed the basis of the Crime and
Disorder Act 1998 (UK), which subsequently abolished the doctrine
of doli incapax in the UK.
The white paper gave the reasons for abolishing the presumption
as that it is archaic, illogical and unfair in practice.
The Act commenced
on 30 September 1998. As a result, the age of criminal responsibility
in England and Wales is now 10 years of age .
The net result of
the Government’s decision to dispose of this presumption is
straightforward: once a child reaches the age of ten, s/he is
presumed by the Courts to have the capacity to reason which
can be fully equated with that of an adult. It is not until
sentencing that their tender years are taken into account. The
transitional period previously created by the existence of the
rebuttable presumption of doli incapax between lack of
criminal responsibility (under ten years of age) and presumed
responsibility for one’s actions (fourteen years and over) has
been disposed of.
There are no statistics
available on the effect of the abolition of doli incapax
on conviction rates for children aged 10-14, since the legislation
became operational only 16 months ago.
4.6 Doli incapax
– keep, alter or abolish?
As mentioned above,
the British government has recently abolished the common law
doctrine of doli incapax completely, giving as it reasons
that the doctrine was archaic, illogical and unfair.
In addition, the
Discussion Paper released in January by the Criminal Law Division
of the NSW Attorney-General’s Department raises the question
as to whether the presumption should be retained or altered.
In considering whether it should be retained, it asks
whether it is still necessary, given that children are no longer
subject to the draconian penalties of former times.
In questioning whether
the presumption should be altered, the discussion paper refers
to a statement from NSW Senior Children’s Magistrate, Mr. Stephen
Scarlet that the age of 12 is a more suitable cut off point
for the doctrine of doli incapax than the age of 14.
Advocates for such a position are reported as stating
that children today are more sophisticated, mature and aware
than children in past decades or centuries, by virtue of the
fact that there is greater access to education and information.
4.6.1 Is doli
incapax archaic?
In C (A Minor)
v Director of Public Prosecutions, Lord Lowry stated:
‘It is true that
there (and has been for a considerable time) compulsory education
and… perhaps children now grow up more quickly...But better
formal education and earlier sophistication do not guarantee
that the child will be more readily able to distinguish right
from wrong’.
There is no evidence
that participating in the education system is more likely to
lead to one’s maturation at a faster rate, than for example
being forced to enter the workplace at eight (or younger) as
was generally the case when the doctrine was developed. Access
to education and information does not, of itself, lead to a
faster rate of development or awareness of responsibility. Indeed, at the time when the doli incapax
principle was developed, children were required to assume a
greater level of adult responsibility at a much earlier age
than presently. Children were usually required to enter the
workforce at a young age, contribute to the family finances,
and be responsible for the rearing and education of younger
siblings. They were often married before they turned fourteen.
Doli incapax
developed as a legal concept during centuries that were very
violent and lawless in comparison to the present day. Children
were exposed to crime in their communities to an extent which
is difficult to conceive of today. Even though children were
often assuming such adult responsibilities at a very young age,
and had much more personal contact with crime than today’s children
do, the criminal law still recognised their developing capacities
and level of awareness, and made an allowance accordingly. Twentieth
century developments, both in education and in the juvenile
justice system have sought to lengthen the process of childhood,
and, therefore to make it a more fulfilling era of one’s life.
Accordingly, the principle of doli incapax has
even more relevance today.
Moral development
is a process of which education is only a part. It is a process
which occurs at different stages in different children.
The presumption of doli incapax accounts for this factor.
‘Far from being
an outmoded survival from an earlier era, the doli incapax rule
is fully consistent with our increasing knowledge of child development
and learning, which tells us that children mature and learn
over differing time spans.’
According to Charlotte
Walshe, Lecturer in Law, University of Leicester:
‘Clearly a time
period has to be placed around the acceptable leeway allowed
for moral development, and, to some extent this will always
be arbitrary. However,
it is submitted that a system which allocates a flexible four
year period during which moral culpability can be assessed is
preferable to a system which assumes that by the age of ten
all children have reached the same level of moral culpability
as an adult.
In Britain the argument
put forward by the government to support doli incapax
being abolished was that there was no need for children to be
protected from the criminal law. It was asserted that children under 14 no longer
needed special protection from the harshness of criminal punishment
(e.g. death penalty, mutilation, transportation, etc.), and
that today, the criminal law places a far greater emphasis on
preventing re-offending, than on punishment for the crime. This
proposition assumes that criminal justice intervention will
help rehabilitate young offenders and it is therefore for their
own good that they are deemed criminally culpable at such a
young age.
Lord Lowry makes
the following statement to counter this proposition:
‘while times have
changed greatly since the days when children of 8 or 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 an 14 from the full force
of the criminal law’.
The truth of the
matter is that in both Britain and Australia there are very
substantial penalties for ten to thirteen year olds found guilty
of a criminal offence. Indeed, the trend in many jurisdictions to
consider initiatives such as mandatory sentencing and grid/matrix
sentencing regimes for minor property offences, burglary, etc.
serve to illustrate a growing enthusiasm for increasing the
severity of sentences for young offenders.
Indeed, the notion
that intervention of the criminal justice system will assist
in the rehabilitation of young offenders is juxtaposed with
such initiatives as are included in the Young Offenders Act
1997 (NSW). The
legislation provides diversionary options which seek to divert
young offenders away from the formal court processes of resolving
criminal matters, by use of youth justice conferences, police
warnings and police cautions. The underlying philosophy of such initiatives
is that the rehabilitation of young offenders is best achieved
by initiatives which divert young offenders away from the criminal
justice system. A study
into Recidivism of Juvenile Offenders in NSW in 1996 discovered
that sanctions characterised by minimalist intervention were
associated with relatively low levels of re-offending, and that
the more access young people have with the Criminal Justice
System, the more frequently and deeper they will penetrate it. It concluded that the younger a juvenile is
at the time of the first proven criminal appearance, the greater
the likelihood that he or she will be found guilty of a subsequent
proven offence as a juvenile, and that there was a strong relationship
between the age at first court appearance, and the probability
of re-offending as a juvenile. It found that 65% of 10 year olds at the time
of their first proven court appearance went on to commit subsequent
proven offences, compared with 32% of juveniles who were 16
years of age at their first proven court appearance..
This debunks the
rationale of abolition or alteration of the doli incapax
principle, on the basis that the intervention of the Criminal
Justice System will lead to rehabilitation.
4.6.2 Is doli
incapax Illogical?
The British Government
Home Office Consultation Paper, Tackling Youth Crime, (1997,
London: HMSO) criticised the doctrine as illogical on the grounds
that the doctrine itself presumes that children between 10 –
14 normally do not know right from wrong, but requires the prosecution,
in order to rebut the presumption, to prove that the child is
of normal mental development for his or her age, i.e. the doctrine
presumes that children aged 10-14 normally do not know right
from wrong, so to rebut the presumption by proving the child’s
normality is logically inconsistent.
Again, Lord Lowry
provides a response to this argument:
‘the presumption
itself is not, and never has been completely logical; it provides
a benevolent safeguard which evidence can remove’.
Charlotte Walsh argues:
Whilst it may be
true that, in practice, evidence that the defendant is of normal
mental development for his or her age is often sufficient to
rebut the presumption (J.M. (A Minor) – v – Runeckles
(1984) 79 Cr App R 255) this is not the essence by which the
presumption of doli incapax can be rebutted.
The issue is simply whether or not the child concerned
knew that their actions were ‘seriously wrong’: illogical rebuttals
of the presumption in practice do not deem the concept illogical
in principle.
The real issue is
the nature of the evidence which is required to rebut the presumption. This will be discussed below.
4.6.3 Is doli
incapax unfair?
The British Government
Home Office Consultation Paper, Tackling Youth Crime, (1997,
London: HMSO) also criticised the doctrine as being unfair in
practice. It stated that to rebut the presumption, the
prosecution must produce evidence separate from the facts of
the offending – for example, the defendant’s response to police
questioning, reports from his or her teachers, etc.
The paper suggests that this evidence may not be available.
Ironically, as indicated above, the Home Office advocated that
the presumption was so easily rebutted that its existence was
illogical. Accordingly,
it runs contrary to the previous proposition that the presumption
is illogical. Indeed, the fact that the conviction rate for
defendants aged 10-14 is still almost 80% of total numbers appearing
before the NSW Children’s Courts is indicative that the presumption
is easily rebutted, and that it is often not to the advantage
of the child defendant to raise the issue of doli incapax
in his or her defence.
The Seen and
Heard Report by the Human Rights and Equal Opportunity Commission
and the Australian Law Reform Commission pointed to the fact that in order to rebut
the presumption, the prosecution was sometimes permitted to
lead highly prejudicial evidence that would ordinarily be inadmissible
. In these circumstances, the principle may not
protect children but be to their disadvantage.
According to Charlotte Walshe:
‘Even if one accepts
that the evidentiary burden required to dislodge the presumption
may occasionally result in a morally culpable child going unpunished,
this is not an argument for disposing with the presumption altogether.
It is true that the pursuit of procedural justice may
sometimes lead to substantive justice not being done, in the
sense that a potentially guilty person goes free.
However, the abandonment of procedural justice may lead
to substantive injustice, in the sense of an innocent person
being convicted.’
Again, in the words
of Lord Lowry:
‘If the prosecution’s
case must fail sometimes 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.’
4.7 Legal safeguards
for the vulnerable in the Criminal Justice System
The criminal law has many provisions for rights and principles, which in
practice, serve as safeguards and protections for the most vulnerable
in the community, including young people and children, people
with an intellectual disability, people with psychiatric illness,
and people from a non-English speaking background. Doli incapax
is just one example of these principles.
4.7.1 The Right to Silence and
the Privilege Against Self Incrimination
One of the most well known safeguards is the right to silence and the privilege
against self incrimination.
The right to silence and the privilege against self incrimination
are based on the principle that no person can be required to
answer a question, if the answer would have a tendency to expose
that person to a criminal conviction.
It is fundamental to the notion that if the State alleges
a crime has been committed, it is up to the State to prove its
allegations beyond reasonable doubt. The rationale for such rights is that they
are human rights designed to protect the dignity of accused
persons, and they serve to protect persons, particularly those
individuals who have certain vulnerabilities, against the power
of the State or its law enforcement officials.
These principles have their origins in seventeenth century England, and
developed as a result of the unjust and inhumane methods of
compulsory interrogation of accused persons being used in such
courts as the Star Chamber and the Ecclesiastical Courts.
Today, the principle manifests itself in the right of
accused persons to not answer any questions from police, or
make any statement to police either before or after arrest 0.
In its 1999 Report into the Inquiry into the Right to Silence, the Victorian
Parliamentary Scrutiny of Acts and Regulations Committee recognised
that the right to silence was a most important safeguard against
wrongful conviction for members of particular groups who should
be considered to be at particular risk of falsely incriminating
themselves during police interrogation. These groups included:
Indigenous Australians, young people, people with intellectual
disability, people with psychiatric illness, people from a non-English
speaking background, and people disadvantaged because of the
effect on their mental processes of drugs or alcohol .
4.7.2 Vulnerable People Under Arrest
In New South Wales, certain provisions detailed in the Police Code of Practice
1998 and the Crimes (Detention after Arrest) Regulation
1998 must be followed in situations where a ‘vulnerable
person’ is arrested. A ‘vulnerable person’ includes people with
an intellectual, mental or physical disability, children, Aboriginal
and Torres Strait Islander people, and people from non-English
speaking backgrounds.
If a vulnerable person is being questioned, the custody manager at the
police station must take steps to contact a support person to
be present during the police interview.
The support person could be a guardian, anyone having
the care of the detained person, a relative or friend, or any
other person who has expertise in dealing with the category
of vulnerable person to which the detained person belongs. People 16 years and over must consent to the
presence of a support person; children under 16 cannot waive
this right – their support person must be a parent or any other
person who has lawful custody or care.
The custody manager must inform the support person that they can assist
the vulnerable person and ensure the interview is conducted
properly and fairly, and that they should identify any communication
problems that may arise in the interview.
4.7.3 Doli incapax as a safeguard for the vulnerable
The doli incapax principle is a practical vehicle by which it is
acknowledged that for the age group of 10 to 14 in particular,
children have wide ranging rates of intellectual and emotional
development and differing levels of understanding.
Importantly, it recognises that the rate of development
cannot be standardised across this particular age group.
An advanced and mature 11 year old may have a greater awareness of the
criminality of his/her conduct than a developmentally delayed
13 year old. The principle forces prosecutors to acknowledge
and consider the degree of responsibility, maturity and awareness
of individual child defendants.
Importantly, the principle also recognises that the 10-14 year age group
is a vulnerable age group with uncertain levels of maturity
and understanding. Like
many other aspects of the legal system, it is appropriate that
the law make special allowances for such vulnerabilities, by
providing children in that age group with some protection from
the inflexible operation of the letter of the law.
In particular, the doli incapax principle is a mechanism by which
developmentally delayed, disadvantaged, disabled and emotionally
immature children in the particularly vulnerable age bracket
of 10-14 are protected from the rigorous presumptions of adult
criminal responsibility.
The doctrine of
doli incapax is one of a number of safeguards for the
vulnerable. If the upper age limit is lowered to make a child of 12 fully responsible
under the criminal law it will lead to extremely vulnerable
individuals in the 12-13 age group being disadvantaged.
4.8 How doli
incapax works in practice
4.8.1 The NSW
Children’s Courts
Statistical Analysis
In reviewing the
appropriateness of the doli incapax principle in the
current criminal justice system, it is necessary to analyse
the extent of its current application in the NSW Children’s
Court.
Unfortunately, there
is no statistical information available from the Department
of Juvenile Justice or the NSW Children’s Courts which indicate
the number of cases an acquittal has occurred when the doli
incapax principle was raised and not successfully rebutted
by the prosecution. Likewise, there are no figures available
to indicate the number of cases where an acquittal was secured
only by virtue of the failure of the prosecution to rebut the
doli incapax principle.
In conducting a
review of the doli incapax principle, the Attorney General’s
Department should ensure that empirical research is undertaken
in all urban, suburban and rural Children’s Courts in NSW to
ascertain the exact number and proportion of cases where doli
incapax has resulted in the acquittal of a child defendant.
Accordingly, it
is necessary to analyse information available from the NSW Department
of Juvenile Justice regarding the statistics obtained from the
NSW Children’s Court for criminal matters before it.
It is also necessary to observe the anecdotal information
provided by practitioners and magistrates serving in the Children’s
Court jurisdiction.
According to Senior
Children’s Magistrate in NSW, Mr. Stephen Scarlett, use of the
doli incapax defence is virtually unknown outside the
Sydney/Newcastle/ Wollongong regions of NSW . He states that the reason for this is that
children’s matters outside of these regions are heard in local
courts, and are run by solicitors who usually have little experience
of proceedings in specialist Children’s Courts.
This is a strong argument for the principle to be given
statutory recognition, as this would result in greater awareness
of the principle for practitioners, and lessen the likelihood
of defendants under 14 years in rural and regional areas having
a lesser standard of justice than their urban counterparts.
However, on the
basis of figures for matters resolved in the NSW Children’s
Courts, it is quite apparent that the acquittal rate as a result
of the application of the doli incapax principle is extremely
low.
In 1997/98, a total
of 15 672 matters were heard and completed in the NSW Children’s
Courts. 1771 matters (11.3%) involved pleas of not guilty and
3681 matters had unproven outcomes.
A total of 1117 matters involved children aged between
10-14. According to
the Discussion Paper issued by the Attorney-General’s Department,
247 of these matters involved a plea of not guilty, these being
the matters in which doli incapax is most likely to be
argued. This is incorrect.
A total of 119 (10.6%)
matters for defendants aged between 10-14 involved a plea of
not guilty, and in a total of 297 matters for this age group,
charges were not proved against the defendant (Table 1).
This latter figure includes matters where charges were
not before court, defendant was unfit to plead, withdrawn, withdrawn
– no evidence offered, no evidence offered dismissed, transfer
interstate, deceased child, destroy fingerprints and records,
adjourned generally, no return of service, stood over generally
and termination of an order, no prima facie case dismissed,
the defendants failed to appear at court, or a finding of not
guilty was returned. It is only in these 119 matters where a
not guilty plea was entered, when the principle of doli incapax
may have been in issue. However,
there is no indication as to what number of these matters subsequently
resulted in a finding of not guilty, and what proportion of
those found not guilty, was due solely to the application of
the doli incapax principle.
For the 12-14 year
age group, Table 2 indicates that only 97 of the total of 965
matters (10%) involved a plea of not guilty, and there were
247 unproven outcomes. The offences which are most common in
the 10-14 year age group (and also in the 12-14 age group) were
assaults, burglaries, thefts (including motor vehicle thefts)
and damage to property (Table 3).
TABLE 1:
1997/98 Criminal
Appearances in NSW Children’s Court – Plea by Age for 10-14
Year Olds, and Total Unproven Outcomes
|
AGE |
Not
Guilty Plea |
Guilty
Plea |
Ex
Parte |
S.75B |
Unknown |
Unproven
Outcomes |
Total |
| 10-11 |
1 |
28 |
|
|
2 |
5 |
35 |
| 11-12 |
21 |
60 |
2 |
6 |
17 |
45 |
117 |
| 12-13 |
39 |
169 |
18 |
7 |
28 |
86 |
289 |
| 13-14 |
58 |
442 |
23 |
20 |
69 |
161 |
676 |
| TOTAL |
119 |
679 |
43 |
33 |
116 |
297 |
1117 |
Source: NSW Department
of Juvenile Justice Annual Children’s Court Statistics Criminal
Matters 1997/98
TABLE
2:
1997/98 Criminal
Appearances in NSW Children’s Court – Not Guilty Pleas, Unproven
Outcomes and Total Appearances for 12-14 Year Olds
| AGE |
Not Guilty
Plea |
Unproven Outcomes |
Total Appearances |
|
12-13 |
39 |
86 |
289 |
| 13-14 |
58 |
161 |
676 |
|
TOTAL |
97 |
247 |
965 |
Source: NSW Department of Juvenile Justice
Annual Children’s Court Statistics Criminal Matters 1997/98
TABLE
3:
1997/98 Criminal
Appearances in NSW Children’s Court – Aggregate Offences by
Age for 10-14 Year Olds
|
OFFENCE |
10-11 |
11-12 |
12-13 |
13-14 |
Total |
| Aggravated
Assault |
|
|
3 |
4 |
7 |
| Other
Acts Intended to Injure |
5 |
15 |
46 |
90 |
156 |
| Aggravated
Sexual Assault |
1 |
1 |
|
5 |
7 |
| Aggravated
Drink Driving Offences |
|
|
|
1 |
1 |
| Other
Dangerous Acts |
|
|
1 |
10 |
11 |
| Robbery/Extortion |
1 |
1 |
7 |
19 |
28 |
| Burglary/Break
& Enter |
8 |
19 |
54 |
102 |
183 |
| Motor
Vehicle Theft & Related Offences |
|
8 |
13 |
61 |
82 |
| Other
Theft & Related Offences |
9 |
25 |
77 |
189 |
300 |
| Illicit
Drug Offences |
|
|
7 |
23 |
30 |
| Weapons
& Explosives Offences |
|
2 |
1 |
3 |
6 |
| Property
Damage & Environmental Pollution |
6 |
14 |
35 |
49 |
104 |
| Public
Order |
4 |
8 |
10 |
40 |
62 |
| Road
Traffic & Motor Vehicle Regulations |
1 |
|
|
|
1 |
| Justice
& Govt. Offences |
|
4 |
13 |
15 |
32 |
| Misc.
Offences |
|
20 |
22 |
