Criminal law—Sexual offences—Whether defence of doli incapax abolished

House of Lords, Lord Phillips, Lord Rodger, Lord Carswell, Lord Brown and Lord Mance, 29 April 2009

Section 34 of the Crime and Disorder Act 1998 (CDA 1998) abolished the defence of doli incapax for children aged 10 or over.

Peter Blair QC and Kerry Barker (assigned by the Sharpe Pritchard) for the defendant. Gareth Patterson and David Perry QC (instructed by Crown Prosecution Service) for the Crown.

In October 2007, the defendant pleaded guilty to twelve counts of causing or inciting a child under 13 to engage in sexual activity contrary to s 13(1) of the Sexual Offences Act 2003. At the time of the activity, the defendant was 12 years of age.

In interview, he admitted the activity but said that he had not thought that what he was doing was wrong. He sought to advance, on the basis that he had not known that what he was doing was wrong, a defence that he was doli incapax. He sought a preliminary ruling from the trial judge that the defence was available to him.

The trial judge ruled that it was not. Upon that ruling, the defendant entered the guilty pleas. He appealed to the Court of Appeal on the ground that the judge was wrong. Section 34 of CDA 1998 provided that the presumption that a child was doli incapax aged 10 or over was abolished.

Defence abolished?
The Court of Appeal held that the question of whether s 34 had abolished the defence of doli incapax had to be resolved by determining whether or not by 1998 it could properly be said that the concept of doli incapax had separated from the presumption.

The Court of Appeal concluded that it had not and therefore dismissed the appeal. The defendant appealed to the House of Lords.

The issue arose as to whether s 34 of the Act had abolished the defence of doli incapax altogether in the case of a child aged between 10 and 14 years, or whether it merely abolished the presumption that the child had that defence, leaving it open to the child to prove that, at the material time, he was doli incapax.

Lord Phillips:
In concluding the judgment of the Court of Appeal, the vice-president said that the question of whether s 34 had abolished the defence of doli incapax had to be resolved by determining whether or not by 1998 it could properly be said that the concept of doli incapax had existence separate from the presumption.

He stated that the court considered that it did not. While his lordship agreed with the result reached by the Court of Appeal, he would express his reasoning a little differently.

Co-existence
The defence of doli incapax and the rebuttable presumption were two different things. In recent times they had, however, always co-existed. It had become customary to speak of “the presumption of doli incapax” as embracing both the presumption and the defence. In using the language of s 34 Parliament intended to abolish both the presumption and the defence. While it was not possible to reach that conclusion from the language of s 34 alone, it could be firmly founded once extrinsic aids to interpreting that section were taken into account.

Mischief
It was a legitimate aid to the interpretation of that section to look at the mischief that the section was designed to obviate. It was a legitimate aid to construction to have regard to the fact that the phrase “presumption of doli incapax” was widely used to embrace both the presumption and the defence.

His lordship further considered that the instant case was one of those rare cases where it was both legitimate and helpful to consider ministerial statements in Parliament under the principle in Pepper (Inspector of Taxes) v Hart [1993] 1 All ER 42.

In issue was the meaning of a single short section of the Act. The meaning of that section was, when read in isolation, ambiguous. The clause that was to become the section was debated at some length in Parliament. An amendment was moved to it on two occasions in the House of Lords.

Consideration of the debates disclosed ministerial statements that made the meaning of the clause quite clear, with the exception of one statement by Lord Falconer. Furthermore, the proposed amendment was moved on the premise that the clause, as drafted, would abolish not merely the presumption but the defence of doli incapax.

Parliament was in no doubt as to the meaning of the clause, in part perhaps because in the consultation paper and the white paper that preceded the legislation the Home Office had made it quite clear what was meant by abolition of the presumption of doli incapax.

Dismissal
Accordingly, the trial judge and the Court of Appeal were correct to hold that s 34 abolished the defence of doli incapax. The appeal would therefore be dismissed.

Lord Rodger, Lord Carswell, Lord Brown and Lord Mance delivered concurring opinions.