Doli Incapax and Historic Sexual Offending
The number of cases in which doli incapax rears its head has been on the wane over recent years following its abolition by section 34 Crime and Disorder Act 1998. Section 34 does not, however, have retrospective effect and the judgment in the case of PF  EWCA Crim 983 handed down by the Court of Appeal last week demonstrated that it can still be useful tool in a defendant’s armoury.
Doli incapax is the rebuttable presumption that a child not less than 10 but under 14 years is incapable of committing a crime. It is rebutted only if the prosecution proves to the criminal standard both
(i) that the child committed the actus reus with the requisite mens rea (in other words committed the crime), and
(ii) the child also knew that the particular conduct was not merely naughty or mischievous but seriously wrong.
The abolition of doli incapax in 1998 and the requirement that the defendant was aged between 10 and 13 years at the relevant time, means that the cases in which it may now arise appears to be broadly, albeit not exclusively, limited to historic sexual offences.
In PF  EWCA Crim 983 the appellant was convicted of indecently assault his younger sister between 1979 and 1983 when he was aged between 10 and 14. As is so often the case in matters involving young witnesses, and hence why doli incapax can be such a useful argument, the complainant in PF could not say precisely when the offences had occurred within the indictment period. Consequentially the trial judge had directed the jury that the appellant must be treated as being below the age of 14 and that the rebuttable presumption of doli incapax applied to all counts meaning the appellant, as a child, was to be deemed incapable of committing a crime unless the prosecution could rebut that presumption.
In summing up the Judge directed the jury that in order for them to be able to convict the prosecution must make them sure that:
a. The genital touching took place in the way described on the indictment,
b. The defendant knew at the time that right thinking people would say touching his sister in this way was indecent, and
c. He knew at the time that this act was seriously wrong, not merely naughty or mischievous.
The appellant’s single ground of appeal was that this amounted to a misdirection on doli incapax as the Judge failed to direct the jury that in order to be satisfied of (c), that the act was seriously wrong, there had to be clear positive evidence to that effect distinct from the doing of the alleged act itself.
The importance of the inclusion in any jury direction of this final element was made clear the year before in R v M  EWCA Crim 674 following the case of C (a minor) v DPP  2 Cr App R 166;  AC1. In C (a minor) v DPP Lord Lowry set out that “evidence to prove the defendant’s guilty knowledge must not be the mere proof of the doing of the act charged, however horrifying or obviously wrong that act might be”. In PF the Court of Appeal noted this was all the more relevant in sexual offences – while touching of genitalia may be patently wrong to an adult, experimentation between children is not uncommon and a child may not realise such conduct is seriously wrong as opposed to merely rude or naughty.
In PF the Crown argued there was clear evidence of the appellant bribing his sisters and engaging in controlling, bullying behaviour which the jury were reminded of in summing up and thus had been invited to take into account in rebutting the presumption of doli incapax. In rejecting this and allowing the appeal, the Court of Appeal concluded that in light of the decision in M the directions to the jury were defective – the jury were not directed – and should have been – on the need to find evidence independent of the acts in question in order to rebut the presumption and as such were not told that the Crown relied upon the bullying and coercion alleged by the complainant (but denied by the) as being that necessary and independent evidence.
The jury were not told, therefore, that, before convicting, it was necessary to consider this evidence and to find that such behaviour had been proved before they could be satisfied that the Crown had established that the appellant knew what he did was seriously wrong.
PF demonstrates although cases involving doli incapax are increasingly rare, in historic cases where recollections are often confused, vague or muddled it provides an additional, important hurdle for the prosecution to clear before a jury can convict a defendant and it is, therefore, crucial that those conducting such cases appraise themselves of the recent case law on the issue.