The mental element of the offence IV

Report of CC (Minor) v Director of Public Prosecutions [1996] 1 Cr App R

(The following reproduces the actual report, giving page numbers etc)

Q.B.D.                                                             C.C. ( MINOR) v. D.P.P. 375

C.C. (A MINOR) v. DIRECTOR OF PUBLIC PROSECUTIONS                                         A

QUEEN’S BENCH (DIVISIONAL COURT) (Lord Justice McCowan

and Mr Justice Mitchell): May 15, 1995

CHILDREN                                                                                                                 B

Doli incapax

Children aged between 10 and 14 -Presumption of doli incapax -

Prosecution required to prove normality of child.

The appellant was convicted by justices of one offence under section 3

and a further offence under section 4 of the Public Order Act 1986. The

appellant was aged 11 years and 11 months at the date of the incident from                   C

which the offences arose. The appellant and another youth named John

attacked a 12 year old boy. John pulled the boy from a bicycle and held him

around the neck. While he was doing that, the appellant took a six inch

lock-knife from his pocket and handed it to John who placed it across the

victim’s throat. Prior to the victim’s release the appellant said: “Cut his

nose to make quite sure”, referring to the victim bringing money to school                       D

for them the next day. The appellant declined to answer questions put to

him by the police. At the conclusion of the prosecution evidence, a

submission of no case to answer was made on the basis that the

prosecution had failed to rebut the presumption of doli incapax. The justices

rejected the submission, finding that it was almost inconceivable that a boy

of the appellant’s age would not know that it was seriously wrong to place

a knife on somebody’s throat and demand money.                                                         E

 

Held, allowing the appeal, that (1) before the justices were entitled to

convict the appellant they had to be sure that the prosecution had rebutted

the presumption of doli incapax, and that the appellant knew that what he

did was seriously wrong and went beyond mere naughtiness or childish

mischief. In determining that question, the tribunal of fact must avoid the

trap of applying a presumption of normality. (2) The prosecution is                                 F

required to prove that a defendant is mentally normal. Very little evidence

is needed but it must be adduced as part of the prosecution case. C. (A

 Minor) v. Director of Public Prosecutions [1995] 2 Cr.App.R. 166, applied. (3)

In the instant case, the prosecution had failed to adduce any evidence to

rebut the presumption of doli incapax.                                                                          G

[ For criminal capacity of children between 10 and 14 years, see Archbold

(1995), paras. 1—96, 97.]

Case stated by Middlesex Commission Area Justices sitting at Brentford,

acting as a youth court.

376

(1) On June 15, 1993, an information was preferred against the appellant

that he did:

A

“On Tuesday, March 9, 1993, at the Beavers Estate, with a view to gain

 for yourself or another, or with intent to cause loss to another, you did

make an unwarranted demand with menaces, namely with another

held a bladed knife to the victim’s throat demanding nine pounds in

cash, contrary to section 21(1) Theft Act 1968”.

 

B      The appellant pleaded “not guilty” and a trial was fixed for hearing on

        August 10, 1993 before the Hounslow Youth Court On the day of the trial

        the original information under the Theft Act was withdrawn and two

        further informations laid in its place as follows:

 

(1) On Tuesday, March 9, 1993, you did use or threaten to use

      unlawful violence towards another arid your conduct was such as

C            would cause a person of reasonable firmness present at the scene

              to fear for his personal safety, contrary to section 3 Public Order

              Act 1986.

(2) On Tuesday, March 9, 1993, you did use towards another person,

      threatening abusive or insulting words or behaviour with intent to

      cause that person to believe that immediate unlawful violence

      would be used against him or another by any person or to provoke

  D           the immediate use of unlawful violence by that person to another

      or whereby that person was likely to believe that such violence

     would he used or it is likely that such violence would he provoked,

    contrary to section 4 Public Order Act 1986.

 

(2) The defence had been “put on notice” previously regarding the two

new informations and as a result the trial took place immediately. The

E     Crown Prosecution Service was represented by Miss Judge and the

        appellant by Mr Snow (solicitor).

The justices heard evidence from three prosecution witnesses and a

submission of no case to answer from the defence who called no evidence.

(3) On hearing the evidence they found the following facts:

 

(a) On March 9, 1993, Dale Harris, a schoolboy aged 12, was riding his

F             pedal cycle through a large housing estate in Hounslow. He was

               approached by a group of youths which included the appellant

               who was at that time aged 11, his date of birth being April 11, 1981,

               also in the group was another youth named John Paul. These two

               youths were known to the victim vaguely from school.

(b) The youth known as John Paul pulled the victim from his cycle

      and held him around the neck. Whilst he did so the appellant took a six

   G           inch lock-knife from his pocket and handed it to John Paul who

      placed it across the throat of the victim, and asked him how much money he

      had. When it was ascertained that he had no money he

      was asked if he had any at home, to which he replied, nine pounds.

Q.B.D.                                                                         CC. (A MINOR) V. D.P.P.     377

He was told that he should bring it to school the next day or he

would be beaten up.                                                                                         A

(c) The appellant was present and assisting throughout the entire

      incident. Whilst the victim was being held and prior to his release

      the appellant said “Cut his nose, make quite sure”.

(d) Upon release the appellant took the victim’s pedal cycle and rode it

      around until it was crashed into a fence where it was abandoned.

     As the victim ran from the scene John Paul was heard to shout out

     “It is only a joke”. This was the only time it was ever suggested that              B

     it was a joke. We were satisfied this was not the case as the mood

     was one of aggression rather than joviality.

(e) It was contended by the defence that:

 

The prosecution had failed to rebut the presumption of doli incapax, in

that they had failed to adduce evidence to show the appellant knew

that what he was doing was seriously wrong. They said the mere facts                C

were insufficient, there had to be some evidence other than the actus.

 

(4) It was contended by the prosecution that:

The facts were such that the presumption was rebutted. We were

advised by our clerk in open court that design and ferocity could in certain

circumstances be sufficient.

 

(5) They were referred to the following cases: Owen (1830)4 C. & P.236;                    D

J.M. (a Minor) v. Runeckles (1984) 79 Cr.App.R. 255; I.P.H. v. Chief Constable

of South Wales [1997]Crim.L.R. 42; Vamplew (1862) 3F.&F Halsbury’s

 Laws of England (4th ed. Re-issue), para. 34.

(6) The justices were of the opinion that the presumption in favour of the

defendant had been rebutted and our reasons are as follows: The appellant

did not answer any questions put to him by the police, either at the enquiry                     E

stage or after arrest. He did not give evidence, and no rebuttal evidence

was called by the prosecution. They were left with the bare facts of the case

which were in the main uncontested. They looked at those facts to see if

they, on their own, would show that the appellant knew what he was

doing was seriously wrong.

The justices’ first impression was that this had to be the case as they felt it

almost inconceivable that a boy of almost 12 years of age in this day and                        F

age of mass communication, would not know that it was seriously wrong to

place a knife on somebody’s throat and demand money.

Their clerk advised them that this was not the correct approach and that

they had to look at the evidence to see if this particular boy knew what he

was doing was wrong. They re-examined the evidence with this in mind.

The justices had no knowledge of his education, level of understanding,

or previous behaviour. They took the view that he came from a reasonable                    G

home, we noted that his mother was present in court supporting him, and

had taken the trouble to instruct solicitors at a very early stage when police

enquiries were, in their infancy. They noted that he attended the police

378                                                                                          [1996] 1 Cr App R

station at the enquiry stage and declined to comment on the advice of his

 A      solicitor. They did not however feel that any of these matters were such as

to be of much probative value. We therefore concentrated on the offence

itself. They were concerned at the manner in which it was committed and

were advised that design, concealment, or unusual ferocity could

themselves rebut the presumption.

   The appellant had a knife in his possession and took an active part in the

incident. They felt that the demand, the holding of the youth around the

B       neck, and the placing of the knife on the throat, were not sufficient to show

         this particular boy knew he was doing wrong, they were certainly

         persuasive but did not rebut the presumption. What took the matter

         further was the threat which followed when the appellant said to the

         accomplice, “Cut his nose to make sure”. This they felt showed a

         remarkable degree of criminality. To urge someone to inflict personal

         injury so as to effect a common purpose took the matter much further. It

C      showed them a design and ferocity which in itself satisfied us beyond

          reasonable doubt the appellant knew what he was doing was seriously

         wrong.

  (7) Having considered and rejected a submission of “No case to answer”,

the chairman announced that the presumption had not been rebutted. This

was a slip of the tongue and corrected. When challenged their clerk

immediately said in open court that his advice had always been on the

D       basis that the prosecution had to rebut the presumption which was always

          in favour of the defence- In fact all the arguments put to them prior to and

          during our retirement were on this basis.

   (8) At the very start of the hearing the prosecution advised the justices

that they viewed the charges as alternatives. They were satisfied that both

          infomations were proved and when we announced their decision did so

by saying, on both charges, the defendant was guilty. Had there been an

expressed request not to adjudicate on the second matter we would not

E       have done so. It has always been their understanding that a proper course

          is to find on both, which preserves the position should there be an appeal

        (D.P.P. v. Cane [1991] J.P. 846), and impose no separate penalty on the lesser

        offence. In the event this is exactly what was done. Having convicted the

        appellant the justices adjourned for pre-sentence reports.

F        (9) On August 31, 1993, the appellant was sentenced to an attendance

        centre for 12 hours for the offence contrary to section 3 of the Public Order

        Act 1986. His parents were additionally ordered to pay compensation of

       £20 to the victim and bound over in the sum of £40 for a period of 12

       months. No separate penalty was imposed on the section 4 matter. The appellant now appealed.

(10) The questions for the opinion of the High Court were:

G          (1) Were we right to convict the defendant of both the charges of

                   affray and threatening behaviour which he faced, when those

                 charges were opened by the prosecution on the basis that they

                 were alternatives?

Q.B.D.                                     C.C. (A MINOR) v. D.P.P. 379

(2) Were we correct to find there was evidence to rebut the

presumption of doli incapax when the only evidence to establish                       A

that the defendant had knowledge that he knew what he was

doing was seriously wrong was the actus itself?

(3) Did the justices apply the wrong standard in considering the

question of doli  incapax?

 

G. Rees for the appellant.

 

I. Stern for the respondent.                                                                               B

 

McCOWAN L.J.: I will ask Mitchell J. to give the first judgment.

 

MITCHELL J.: This is an appeal by way of case stated in respect of

adjudication on August 10, 1995 by Justices for the Petty Sessional Area of

Hounslow, sitting as a youth court. On that occasion the justices convicted

the appellant of one offence under section 3 and a further offence under

section 4 of the Public Order Act 1986. The allegations were founded upon       C

a single incident which had occurred on March 9, 1993 when the appellant

was aged 11 years and 11 months. The appellant neither gave evidence, nor

was evidence called on his behalf.

   The facts as found were these: on that date a young 12 year old schoolboy

called Dale was riding his bicycle through a housing estate in Hounslow.

He was approached by a group of youths, which included the appellant

and another one named John. Each of those two was known to the victim,         D

but only vaguely. All three attended the same school. John pulled Dale, the

victim, from his cycle and held him round the neck. While he was doing that

the appellant took a six inch lock-knife from his pocket and handed it

to John, who placed it across the throat of the victim. He asked him how much

money he had. When it was clear that Dale had no money on him he

was asked if he had any at home. He told them he had nine pounds. He was      E

then instructed to bring it to school the next day or he would be beaten up.

The justices found that the appellant was present and assisting

throughout the entire incident. Indeed, whilst the victim was being held,

and prior to his release, the appellant had said, “Cut his nose to make quite

sure”. Having been released, the victim went off and the appellant took his

bicycle, that is the victim’s bicycle, and rode it around until it crashed into a

fence where it was abandoned. As the victim ran off John was heard to              F

shout out, “It’s only a joke”: That was the only occasion when it was

claimed that the conduct of John, and the appellant, towards Dale, was

intended only as a joke.

Thereafter, the appellant chose not to answer questions put to him by the

police, both prior to and following his arrest. At the conclusion of the

prosecution evidence a submission of no case to answer was made on

behalf of the appellant. It was a simple submission. The prosecution had                         G

failed to rebut the presumption of doli incapax, the appellant at the material

time having been a boy aged 11 years and 11 months. That submission, in

effect has been repeated before us. If it is correct then the appeal must

380      ________                          _____________________            [1996]1 CR.APP.R

succeed. Unlike the justices, we have the advantage of having available to

A       us the recent decision of the House of Lords in the case of C. (A Minor) v.

         Director of Public Prosecutions [1995]2 Cr.App.R. 166, [1995]2 W.L.R. 383. At common law there is what has been called the benevolent but rebuttable

          presumption that a child aged between 10 and 14 does not know the

          difference between right and wrong and is, therefore, incapable of

          committing a crime. It may have performed or participated in the act which

          constituted the actus reus of the offence, but the presumption operates, in

B       effect, to negative the existence of the necessary mental element, namely

         that appropriate to the offence coupled with knowledge of what he was

         doing was seriously wrong, which if proved, would establish guilt.

   Having heard the evidence, which was confined to the circumstances of

the offence and its investigation, the justices came to the conclusion that the presumption had been rebutted. The justices approached the questions

and this is clearly set out in the case, as an exercise in common sense and as

C       such it is difficult to fault. They said this:

“We were left with the bare facts of the case which were in the main

uncontested. We looked at those facts to see if they, on their own,

would show that the appellant knew what he was doing was seriously

wrong.

D                 Our first impression was that this had to be the case as we felt it

almost inconceivable that a boy of almost 12 years of age in this day

and age of mass communication, would not know that it was seriously

wrong to place a knife on somebody’s throat and demand money.

     Our clerk advised us that this was not the correct approach and that

we had to look at the evidence to see if this particular boy knew what

he was doing was wrong. We re-examined the evidence with this in

E             mind.

          We had no knowledge of his education, level of understanding, or

previous behaviour. We took the view that he came from a reasonable

home, we noted that his mother was present hi court supporting him,

and had taken the trouble to instruct solicitors at a very early stage

   when police enquiries were in their infancy. We noted that he

F              attended the police station at the enquiry stage and declined to

                comment on the advice of his solicitor. We do not however feel that

any of these matters such as to be of much probative value. We

therefore concentrated on the offence itself. We were concerned at the

manner in which it was committed and were advised that design,

concealment, or unusual ferocity could themselves rebut the

presumption. The appellant had a knife in his possession and took an

G             active part in the incident. We felt that the demand, the holding of the

youth around the neck, and the placing of the knife on the throat, were

not sufficient to show this particular boy knew he was doing wrong,

they were certainly persuasive but did not rebut the presumption.

Q.B.D.                                                             CC. (A M v. D.P.P. (Mitchell J.) 381

What took the matter further was the threat which followed when the

appellant said to the accomplice, ‘Cut his nose to make sure’. This we               A

felt showed a remarkable degree of criminality. To urge someone to

inflict personal injury so as to effect a common purpose took the

matter much further. It showed us a design and ferocity which in itself

satisfied us beyond reasonable doubt the appellant knew what he was doing was seriously wrong.”

 

Before the justices were entitled to convict the appellant they had to be                          B

sure that the prosecution had rebutted the presumption. They had to be

sure, in other words, that the appellant knew that what he was doing when

participating in the incident, as he had, was seriously wrong and went

beyond mere naughtiness or childish mischief.

   In determining that question, the tribunal of fact must avoid the trap Of

applying another presumption, one which has been termed the

“presumption of normality”. That presumption is to this effect: any normal                       C

boy of his age in society, as it is today, must have known that what he was

doing was seriously wrong. Such an approach as that reverses the relevant

presumption of doli incapax.

The leading speech in C. (A Minor) is that of Lord Lowry. At pp. 181, 182

and p. 397 of the respective reports his Lordship dealt with the apparent

illogicality of the relevant presumption. He said this:                                                        D

 

“The rule is said to be illogical because the presumption can be

rebuffed 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 the child is doli

incapax), but at this stage I will focus on the illogicality. We start with                E

the benevolent presumption of doli incapax, the purpose of which was

to protect children between seven (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. (1958) 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                                   F

logically) been largely accepted 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 base to answer.”

 

  There remains this question: what is the nature of the evidence which is

capable of rebutting the presumption? At p. 187 and p. 401H of the respective reports Lord Lowry observed:

382                                                                                          [1996]  1 CR.APP

“The second clearly established proposition is that evidence to prove

A       the defendant’s guilty knowledge, as defined above, must not be the

          mere proof of doing the act charged, however horrifying or obviously

          wrong that act may be.”

 

         As authority for that proposition, Lord Lowry cited two cases, that of

         Sidney Smith (1845)1 Cox C.C.260 and that of Kershaw (1902) 18 T.L.R. 357,

        358. Lord Lowry continued:

 

B      “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 in the present case,

C      because flight from the scene can as easily follow a naughty action as a

wicked one. There must, however, be 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 the

policeman.

             The Divisional Court here, assuming that the presumption applied,

D      would have reversed the Youth Court, rightly in my opinion, because

there 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

E       methods which depend on receiving co-operation) or on evidence

from someone who knows the defendant well, such as a teacher, the

involvement of whom adversely to the child is unattractive. Under

section 3(4) of the Criminal Justice and Public Order Act 1994 a child

defendant’s silence when questioned before a trial maybe 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

F       mention at an earlier stage, but I do not see how that provision could

avail the prosecution on the issue of guilty knowledge. Counsel

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

G       existence was initially overlooked in R. v. Coulburn (1988) 87

          Cr.App.R. 309, where the charge was one of murder. My speculation

          for it is nothing more, is strengthened by the reflection that courts have

          frequently accepted evidence of normal mental development as proof

Q.B.D.                                                 CC. (A MINOR) v D.P.P. ( Mitchell J.) 383

of mature moral discernment, although the two are not true equivalents.

 My Lords, I have reached without difficulty the conclusion that both      A

parts of the certified question should be answered ‘Yes’.”

 

The certified question in the case of C. was this:

 

“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 knew that his act       B

was seriously wrong, such evidence not consisting merely in the

evidence of the acts amounting to the offence”.

 

   On behalf of the respondent in the instant case, it has been argued that

 the prosecution is not required to call positive evidence that a child is

normal for his age. It is said that that fact may be proved by evidence

revealed in the case, though it is acknowledged that it cannot be inferred

merely from the commission of the offence. In my judgment, having regard         C

to the principles so clearly identified by Lord Lowry that for all practical

purposes, is a distinction without a difference. The evidence relied upon

here by the respondent is first the act of handing over the knife. It is said

that if the appellant recognised that coercion was required he must have

realised it was wrong. Further, it is said the certain realisation on the part of

the appellant that any money handed over would not have been his must                        D

materially contribute to the rebuttal of the presumption. Further, it is said

that the money in any event would not have been given over voluntarily

and that he would have appreciated. The fourth point is that the

instruction that the appellant gave to cut the victim’s nose, was clearly a

serious threat and the appellant must, therefore, have realised that what he

was doing was seriously wrong, in particular, as that comment was made                       E

after the demand for money and, indeed, it was a comment which was

appropriate to the demand. It is said that those features of the evidence,

coupled with the justices’ view that the appellant came from a reasonable

home, noting as they did that his mother was in court supporting him,

were capable of rebutting the presumption. The justices found rightly, it is

said, that those features in combination did rebut the presumption to the

required standard. Reliance, to some extent, was placed upon the authority

of J.M. (a Minor) v. Runeckles (1984) 79 Cr.App.R. 255. I say reliance was F

placed upon that authority to some extent, because the facts there were

very different if only because in that case what the justices relied upon in

particular, to rebut the presumption was the content of the statement

under caution which the child made during the investigative stage; what

she said, how she said it, the way she expressed herself.

   Applying the relevant principles, as I understand them to the justices’

reasoning in this case for concluding that the prosecution had rebutted the          G

presumption (had, in other words, made them sure that the appellant

knew what he had done was seriously wrong), it is clear, in my judgment,

that their conclusion was founded exclusively upon the evidence of the act

384                                                                  __                    [1996] 1 CR APP R

which founded the offences. The justices were, in effect, applying a

A       presumption of normality, having said in terms that but for the appellant’s

remark, “Cut his nose to make sure”, they would not have found the

presumption to have been rebutted. Of that remark, they said this:

“This, we felt, showed a remarkable degree of criminality. To urge

someone to inflict personal injury so as to effect a common purpose

took the matter much further. It showed us a design and ferocity

B              which in itself satisfied us beyond reasonable doubt that the appellant

                knew what he was doing was seriously wrong.”

       

        What the justices appear to have been confusing is evidence which is

capable of rebutting the presumption (such evidence was not before them)

and evidence which was before them as to age and conduct which in

combination would determine how readily the presumption was

rebuttable by other evidence. Lord Lowry observed in the passage I have

C      already cited that the fact that presumption was rebuttable has led courts

         to recognise that the older the child and more obviously heinous the

         offence, the easier it is to rebut the presumption. Proof of mental normality

          has in practice, been largely accepted as proof that the child can distinguish

         right from wrong and form a criminal intent and it will be recalled that

         Lord Lowry concluded this passage with these words:

D

“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.”

                In my judgment, although very little evidence was needed here to rebut

          the presumption, the appellant was after all nearly 12 and the conduct he

          so actively participated in was both vicious and cruel, nonetheless no such

          evidence was adduced by the prosecution. The submission of no case

          ought, accordingly, in my judgment, to have been allowed. These

E       convictions, it must follow, must therefore be quashed.

                   In those circumstances it is unnecessary for me to consider the further

          question raised in the case stated which relates to the propriety of the

          justices having convicted of each of the two informations, the prosecution 

          having opened the case on the basis that they were to be treated as alternatives.

F

Appeal allowed.

Conviction quashed.

            Solicitors: Farrell Mathews & Weir, for the appellant. Crown Prosecution

            Service, Harrow.

G

[l996] 1 Cr App R  Part 2 © Sweet & Maxwell