The Gazette 1994

GAZETTE

APRIL 1994

preserving order and seizure of

intoxicating liquor or any disposable

container or other article which

could be used to cause injury

together with certain powers to

search a person going to an event

(liability on summary conviction to a

fine not exceeding £500);

• prohibition of advertising of brothels

and prostitution (liability on

summary conviction to a fine not

exceeding £1,000 and on conviction

on indictment to a fine not exceeding

£ 1 0 , 0 0 0 );

• powers of arrest of the Garda

Síochána without a warrant, powers

to demand the name and address of

any person whom the member

suspects with reasonable cause has

committed or whom the member

finds committing such an offence

(liability on summary conviction of

a fine not exceeding £500).

Doli Incapax:

A Disservice

to the Law?

The Queen's Bench Divisional Court

held in the case of C.

(a Minor)

Director of Public

Prosecutions

(Mann LJ and Laws J,

The Times Law

Report,

March 30, 1994) the

rebuttable presumption that a minor

between the ages of 10 and 14 was

incapable of committing a crime no

longer existed in English law. The

court so held in dismissing an appeal

by C, a minor, by way of case stated

against his conviction for interfering

with a motorcycle with the intention

to commit theft.

Mann LJ, giving the judgment of the

court, said that the appellant at the age

of 12 was presumed to be

doli incapax

(incapable of committing a crime) until

that presumption was rebutted by

positive proof adduced by the

prosecution that in fact he knew what he

did was seriously wrong. The justices

had found that he had known that what

he had done was seriously wrong. The

damage to the motorcycle had been

substantial and the appellant and his

accomplice had run from the police.

The judge stated that whatever had

been the position in an earlier age

when there was no system of universal

compulsory education and when

I children did not grow up as quickly as

I they did nowadays, the presumption at

the present time was a serious

disservice to the law.

Mann LJ considered that the

presumption meant that a child over

10 who committed an act of obvious

dishonesty or even grave violence was

to be acquitted unless the prosecution

specifically proved by discrete

evidence that he understood the

obliquity of what he was doing. Such

an approach was unreal and contrary

to common sense.

The court considered that aside from

anything else, there would be cases

where evidence of the kind required

j could not be obtained but, quite apart

from pragmatic considerations, the

presumption was in principle

objectionable. The court considered

that it was not part of the general law

that it should be proved that a

defendant appreciated that his act was

seriously wrong; that additional

requirement where the presumption

applied was out of step with the

general law. The requirement was,

furthermore, according to the court,

conceptionally obscure.

The rule was also divisive because it

attached criminal consequences to the

acts of children coming from what

used to be called "good homes" more

readily than to the acts of others. It

was perverse because it tended to

absolve from criminal responsibility

the very children most likely to

commit criminal acts.

It was not surprising that the

presumption took root in an era when

the criminal law was altogether more

draconian, but the philosophy of

criminal punishment had obviously

changed out of all recognition since

those days. The court stated that the

presumption had no utility whatever

in the present era and ought to go.

The question was whether the court had

authority to abolish the presumption.

Several arguments were considered.

1 It had been argued that the

presumption was of such long

standing that it should only be

changed by Parliament or at least a

decision by the House of Lords. The

court considered that antiquity of

itself conferred no virtue upon the

legal status quo. The common law was

not a system of rigid rules but of

principles whose application might

alter over time and should be renewed

by succeeding generations of judges.

In the present case, the court

considered the conditions under

which the presumption was developed

in the earlier law now had no

| application.

It had also been argued that the court

was bound by the doctrine of

I precedent to adhere to the

presumption. The court considered

that the rules of

stare decisis

provided

a crucial counterpoint to the law's

capacity for change; apparently

established principles were not to be

j altered save through the measured

deliberation of a hierarchical system.

I The court opined that although first

i instance courts did not, on the whole,

effect root and branch changes to

legal principles, the Divisional Court

was in a peculiar position being

a first instance court but also an

appellate court for cases like the

j present; and in such cases there was

| no appeal from its decision save

| to the House of Lords. The court

considered that it was entitled to

depart from the premise which lay

behind certain decisions of the Court

| of Appeal. To do so did not involve

any departure from any adjudication

which that court was required

to make upon an issue in dispute

before it.

j Accordingly, in the circumstances, the

! presumption relied upon by the

appellant was no longer part of the

law of England and the appeal

therefore was dismissed.

The issue of "mischievous discretion"

was considered in the Irish cases of

Green v Cavan County Council,

[1959] IR Jur. Rep. 75 and

Monagle

Donegal County Council

[1961] IR

j Jur Rep. 37. It will be interesting to

observe how long the principle of

doli incapax

survives in Ireland at

least in relation to children between

12 and 14.

136