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Cite as: (1995) 159 JP 269, [1995] 1 FLR 933, [1995] Crim LR 801, [1995] 2 Cr App R 166, [1995] RTR 261, [1995] 2 All ER 43, [1995] 2 Cr App Rep 166, [1995] 2 WLR 383, [1995] UKHL 15, [1996] AC 1, [1995] Fam Law 400

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    HOUSE OF LORDS
    OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE
    CAUSE
    IN RE C (A MINOR) (A. P.)
    (APPELLANT)
    (ON APPEAL FROM A DIVISIONAL COURT OF THE QUEEN'S BENCH DIVISION)

    ON 16 MARCH 1995

    Lord Jauncey of Tullichettle
    Lord Bridge of Harwich
    Lord Ackner
    Lord Lowry
    Lord Browne-Wilkinson

    LORD JAUNCEY OF TULLICHETTLE

    My Lords.

  1. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Lowry. I am grateful to him for his detailed analysis of the authorities and notwithstanding the forceful and persuasive judgment of Laws J. I agree that, as the law now stands, your Lordships have no alternative but to answer the certified questions in the manner which my noble and learned friend proposes.
  2. I should however like to add a few words of my own in relation to the desirability of retaining the presumption in its present form. It is, no doubt, undesirable that a young person who commits an offence and who genuinely does not know that he is doing something seriously wrong should suffer the rigours of the criminal law. But is a blanket presumption such as exists in England and Wales at the moment the best way to achieve protection for such a person? There must be many youthful offenders under the age of 14 who are very well aware that what they are doing is seriously wrong. Indeed it is almost an affront to common sense to presume that a boy of 12 or 13 who steals a high powered motor car, damages other cars while driving it, knocks down a uniformed police officer and then runs away when stopped is unaware that he is doing wrong.
  3. The presumption has been subject to weighty criticism over many years, by committees, by academic writers and by the courts as explained in detail in the speech of my noble and learned friend. I add my voice to those
  4. critics and express the hope that Parliament may once again look at the presumption, perhaps as pan of a larger review of the appropriate methods in a modern society of dealing with youthful offenders.
  5. No such presumption operates in Scotland where normal criminal responsibility attaches to a child over 8 and I do not understand that injustice is considered to have resulted from this situation. In this connection it is worth mentioning that the system of children's hearings constituted by the Social Work (Scotland) Act 1968 which enables many offending children between 8 and 16 years of age to be effectively dealt with outside the criminal courts works extremely well.
  6. LORD BRIDGE OF HARWICH

    My Lords,

  7. I have had the advantage of reading in draft the speech of my noble and learned friend. Lord Lowry. I agree with him that in the present state of the law your Lordships have no alternative but to allow the appeal and answer both parts of the certified question in the affirmative.
  8. In today's social conditions the operation of the presumption that children between the ages of 10 and 14 are doli incapax may give rise to anomalies or even absurdities. But how best to remedy this state of affairs can, in my view, only be considered in the context of wider issues of social policy respecting the treatment of delinquency in this age group. These issues are politically controversial and this is pre-eminently an area of the law in which Parliament alone is competent to determine the direction which any reform of the law should take.
  9. LORD ACKNER

    My Lords,

  10. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Lowry. I agree that your Lordships have no alternative but to answer the certified question in the manner he proposes, since to do otherwise would be a usurpation of the legislative function of your Lordships' House. I have, however, considerable sympathy with the criticisms expressed by Laws J. of the law as it now stands and would hope that Parliament will provide an early opportunity for its review.
  11. LORD LOWRY

    My Lords.

  12. The point of this appeal is:
  13. "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 was seriously wrong, such evidence not consisting merely in the evidence of the acts amounting to the offence itself."

  14. That was the question certified as a point of law of general public importance by the Divisional Court when granting leave to appeal to this House after dismissing the appellant's appeal by case stated from a decision of a Youth Court convicting the appellant of interfering with a motor cycle with the intent that an offence of theft or of taking and driving away without consent should be committed contrary to section 9(1) of the Criminal Attempts Act 1981. The question arose in this way.
  15. About 3 p.m. on 8 June 1992 two policemen on mobile patrol saw a Honda 125 c.c. motor cycle parked in the private driveway of a house in Liverpool. Two boys were tampering with the motor cycle. The appellant was holding the handlebars while the other boy tried with a crowbar to force open the chain and padlock securing the motor cycle. The police approached on foot and both boys ran off. One policeman chased the appellant who then climbed over a wall at the rear of the property and was arrested by another policeman. The damage to the motor cycle included the detaching of the leads to the coil and battery and the dislodging of the mounting. There was, as your Lordships have been told, no evidence of any admission or statement by the appellant. At the conclusion of the prosecution's case the appellant's solicitor called no evidence but submitted that the prosecution had not adduced sufficient evidence to prove that the appellant, who was born on 29 June 1979 and was therefore just under 13 years old at the time of the alleged offence, had guilty knowledge and knew that what he was doing was seriously wrong as opposed to merely naughty or mischievous.
  16. As the case stated reveals, the justices found that the appellant knew that what he had done was seriously wrong, observing that the damage done to the motor cycle was substantial and that the appellant and his accomplice ran from the police, leaving the crowbar behind. They drew from these facts the inference that the appellant "knew he was in serious trouble because he had done something seriously wrong." They therefore convicted the appellant and fined him 15 units at 4, payable by his mother, who was also bound over to ensure his future good behaviour. The question in the case stated for the opinion of the High Court was:
  17. "whether or not there was any, or sufficient evidence to justify the finding of fact made by us. that this particular defendant knew that what he was doing was seriously wrong."

  18. On the hearing of the appeal the Divisional Court, constituted by Mann L.J. and Laws J., of its own motion took a point which had not been raised either in that court or in the Youth Court by either party, namely, that it was a matter for consideration whether the presumption of doli incapax (which I shall refer to as "the presumption") had outlived its usefulness and should no longer be regarded as part of the common law. The appeal is reported at [1994] 3 W.L.R. 888.
  19. Delivering what in fact if not in form was the judgment of the court. Laws J. referred to the appellant's submission that the presumption applied and had not been rebutted and stated, at p. 890F:
  20. "If this submission is right, it means that the defendant should have been acquitted although he was caught in the act of a thoroughly dishonest enterprise. There can be no doubt but that he and his companion intended to drive the motor cycle away if they could."

  21. The judge then reviewed, to use his own words, "a long line of authority in which this presumption has been applied by the courts" and continued, at p. 894 A:
  22. "The requirement of specific evidence to rebut the presumption, which is generally supported in the cases, is consistent with Blackstone's treatment of the issue in Blackstone's Commentaries on the Laws of England, Book IV, 1st ed. (1769), pp. 23-24:

    'But by the law, as it now stands, and has stood at least ever since the time of Edward the third, the capacity of doing ill, or contracting guilt, is not so much measured by years and days, as by the strength of the delinquent's understanding and judgment. For one lad of eleven years old may have as much cunning as another of fourteen; and in these cases our maxim is, that "malitia supplet aetatem." . . . under fourteen, though an infant shall be prima facie adjudged to be doli incapax; yet if it appear to the court and jury, that he was doli capax, and could discern between good and evil, he may be convicted and suffer death. . . . But, in all such cases, the evidence of that malice, which is to supply age, ought to be strong and clear beyond all doubt or contradiction.'

    "In my view the cases demonstrate that, if this presumption is to be rebutted, there must be clear positive evidence that the defendant knew his act was seriously wrong, not consisting merely in the evidence of the acts amounting to the offence itself. On that basis, there having been no such evidence here, this appeal must succeed if the presumption together with the manner of its application through the authorities remains part of our law.

    "Whatever may have been the position in an earlier age, when there was no system of universal compulsory education and when, perhaps, children did not grow up as quickly as they do nowadays, this presumption at the present time is a serious disservice to our law. It means that a child over 10 who commits an act of obvious dishonesty, or even grave violence, is to be acquitted unless the prosecution specifically prove by discrete evidence that he understands the obliquity of what he is doing. It is unreal and contrary to common sense; and it is no surprise to find that modern judges - Forbes J. in J.B.H. and J.H. (Minors) v. O'Connell [1981] Crim. L.R. 632, Bingham L.J. in A v. Director of Public Prosecutions [1992] Crim. L.R. 34 - have looked upon the rule with increasing unease and perhaps rank disapproval."

  23. The judge proceeded to marshal forcefully the arguments against the continued application of the presumption and concluded (p. 896D) that it "has no utility whatever in the present era" and that it "ought to go." Then, having considered three arguments which "might be advanced to persuade the court that it ought not, or cannot, abolish the rule", he concluded, at p. 898A:
  24. "In those circumstances, I would hold that the presumption relied on by the defendant is no longer part of the law of England. The appeal should therefore be dismissed. Given the basis of this conclusion, it is not apt to provide an answer to the question framed in the case stated."

  25. That question was therefore left unanswered since dispensing with the presumption had the effect of affirming the result, albeit not the decision, in the lower court.
  26. My Lords, Mr. Robertson, Q.C., for the appellant, has argued cogently that the Divisional Court was not justified in holding that the presumption is "no longer part of the law of England". He referred to Hale 1 Pleas of the Crown 6th ed. Leach 1788) and Blackstone (already noted) and to up-to-date editions of Russell on Crime vol. 1, 12th ed. (1964) Kenny's Outlines of Criminal Law, 19th ed. (1966) Smith and Hogan, Criminal Law, 7th ed. (1992) Halsbury's Laws of England 4th ed. vol. 11(1) (1990) and Cross and Ashworth, The English Sentencing System 3rd ed. (1981). The doctrine is summarised in Archbold (1993) vol. 1 Para. 1-96:
  27. "at common law a child under 14 years is presumed not to have reached the age of discretion and to be doli incapax; but this presumption may be rebutted by strong and pregnant evidence of a mischievous disposition . . . Between 10 and 14 years a child is presumed not to know the difference between right and wrong and therefore to be incapable of committing a crime because of lack of mens rea . . . Wrong means gravely wrong, seriously wrong, evil or morally wrong."

  28. In the 17th century the "age of discretion" was fixed by Coke at 14. It was accepted as such by Hale.
  29. Counsel pointed to the long line of cases, most of which were noted in the judgment of Laws J., (and the latest of which was A v. Director of Public Prosecutions [1992] Crim. L.R. 34 in the Court of Appeal (Criminal Division)), in which the presumption has without exception been recognised and applied. He also traced the doctrine in the cases, legislation and textbooks of other jurisdictions in the Commonwealth.
  30. The presumption has been discussed in many Official Reports and has been the background of legislation concerning the age of criminal responsibility. In 1927 the Report of the Molony Committee on the Treatment of Young Offenders (Cmnd. 2831) stated, at p. 21:
  31. "As the law stands at present no act done by any person under seven years of age is a crime and no act done by any person over seven and under fourteen is a crime unless it be shown affirmatively that such person had sufficient capacity to know that the act was wrong. The age of seven was adopted hundreds of years ago and the whole attitude of society towards offences committed by children has since been revolutionised. We think the time has come for raising the age of criminal responsibility, and we think it could safely be placed at eight. For children over this age courts should bear in mind the requirement referred to above."

    (The last sentence here was a reference to the importance of reformation of children as distinct from punishment.) In consequence, no doubt, of that Report the minimum age of criminal responsibility was raised to eight years by section 50 of the Children and Young Persons Act 1933.

  32. In 1960 the Report of the Ingleby Committee on Children and Young Persons (Cmnd. 1191) recommended raising the age of criminal responsibility to 12, with the possibility of its becoming 13 or 14; instead of criminal proceedings that committee contemplated that children under the given age would be brought before a court as being in need of care, protection, discipline or control. It can therefore be seen that the proposal, when fully implemented, would have meant that there was no criminal responsibility up to the age to which the presumption applied and still applies. By section 16 of the Children and Young Persons Act 1963 the minimum age of criminal responsibility was raised to 10 years but, failing any express enactment on the point, the common law upper limit stayed at 14 for the purpose of the presumption.
  33. In 1965, the Government having changed, a White Paper. "The Child, the Family and the Young Offender" (Cmnd 2743) proposed the extinction of the doli incapax rule by raising the minimum age of criminal responsibility to 16. This reform was to be accompanied by the abolition of the Juvenile Court. Another point of view, which was also more in harmony with the Ingleby Report appeared in section 4 of the Children and Young Persons Act 1969, which provided that a person should not be charged with an offence except homicide by reason of anything done or omitted while he was a child, that is, under 14. Sections 34 and 73 of the Act enabled the minimum age of criminal responsibility to be increased gradually from 10 to 14 by Order, but a day was never appointed for section 4 to come into effect.
  34. Meanwhile, in 1985, there was laid before Parliament a draft Bill codifying the criminal law, which had been prepared under the auspices of the Law Commission by a committee of distinguished academic lawyers under the chairmanship of Professor J. C. Smith, C.B.E.. Q.C. (Law Com. No. 143). Draft clause 36 read:
  35. "A child is not guilty of an offence by reason of anything he does when under ten years of age."

  36. The committee's commentary is significant:
  37. "11.21 Child under ten. This clause restates the present law - without expressing the matter, as the present law does, in terms of a conclusive presumption of incapacity.
    "11.22 Child over ten but under fourteen. The law at present is that such a child can be guilty of an offence but only if, in addition to doing the prohibited act with such fault as is required in the case of an adult, he knows that what he is doing is 'seriously wrong.' It is presumed at his trial that he did not have such knowledge, and the prosecution must rebut this presumption by proof beyond reasonable doubt. The presumption, it has been said, 'reflects an outworn mode of thought' and 'is steeped in absurdity'; and it has long been recognised as operating capriciously. Its abolition was proposed in 1960 by the Ingleby Committee on Children and Young Persons. We believe that there is no case for its survival in the Code.
    "11.23 The Children and Young Persons Act 1969, section 4 provides: 'A person shall not be charged with an offence, except homicide, by reason of anything done or omitted while he was a child' (that is, under fourteen). The intention of the government of the day was that the minimum age for prosecution should in fact be raised to fourteen by stages; and the Act contains provisions enabling this to be done. No government, however, has acted to bring section 4 into force; it appears to be a dead letter. It ought no doubt to be repealed with the enactment of the Code (if not before). It is not, however, strictly speaking inconsistent with the present clause. The clause specifies the lowest age at which a person can commit an offence, while section 4 specifies an age below which, although committing an offence, a person does not thereby render himself liable to prosecution."

  38. The intended effect of the draft was, therefore, to get rid of the presumption and to let a child pass from complete criminal irresponsibility to full responsibility without any intermediate zone. Your Lordships will recall that the adverse comments on the presumption in paragraph 11.22 were made by Professor Glanville Williams, Q.C. in his authoritative textbook Criminal Law, The General Parr 2nd ed. (1961) pp. 814-821.
  39. What could perhaps be regarded as the Government's response was contained in Chapter 8 of a White Paper entitled "Crime, Justice and Protecting the Public" (1990) (Cmd. 965). I reproduce an extract:
  40. "8.3 What is needed are arrangements which allow parents' diminishing responsibility for their children's behaviour as they grow older to be balanced by placing increasing responsibility on the young people themselves. There should, therefore, be separate arrangements for three age groups: those aged under 10; those aged 10-15 ; and those aged 16 and 17. At 18 young people reach the age of majority. Formal parental authority ceases, though many parents will continue to help and guide their children beyond this age, and should be encouraged to do so.
    "8.4 The criminal law is based on the principle that people understand the difference between right and wrong. Very young children cannot easily tell this difference, and the law takes account of this. The age of criminal responsibility, below which no child may be prosecuted, is 10 years; and between the ages of 10 and 13 a child may only be convicted of a criminal offence if the prosecution can show that he knew that what he did was seriously wrong. 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.
    "8.5 For children below the age of 10,the responsibility must be placed squarely on the parents to help their children to keep out of trouble and to deal with the consequences if they get into trouble. ..."

  41. The sequence was completed by section 72 of the Criminal Justice Act 1991, which repealed section 4 of the Children and Young Persons Act 1969.
  42. The material which Mr. Robertson put before your Lordships convinces me that the presumption is still universally recognised as an effective doctrine which the Government has recently reaffirmed to be, in the Government's view, part of the criminal law. The imperfections which have been attributed to that doctrine cannot, in my view, provide a justification for saying that the presumption is no longer part of our law. To sweep it away under the doubtful auspices of judicial legislation is to my mind, quite impracticable.
  43. Mr. Robertson drew to your Lordships' attention a number of dicta in this House which were calculated to discourage judges from lightly venturing to alter the law. I refer first to the words of Lord Lane C.J. in the Court of Appeal in Reg. v. Howe [1986] Q.B. 626. 637:
  44. "Trial judges are obliged to explain to the ordinary men and women sitting on the jury in language they can understand what the law is. Their task, already difficult, would become impossible if they were obliged to direct the jury not upon what the law is but on what it ought to be but is not. That is not their duty."

  45. In the same case, when it had reached your Lordships' House, Lord Hailsham of St. Marylebone, speaking of duress, said at [1987] AC 417, 430C:
  46. "It has always been possible for Parliament to clear up this branch of the law (or indeed to define more closely the nature and extent of the availability of duress as a defence.) But Parliament has conspicuously, and perhaps deliberately, declined to do so."

  47. In Knuller (Publishing, Printing and Promotions) Ltd. v. Director of Public Prosecutions [1973] A.C. 435 Lord Simon of Glaisdale made two points which are most relevant to the present appeal. He observed, at p. 489C, that the House was concerned with highly controversial issues on which there was every sign that neither public nor parliamentary opinion was settled. Then, at p. 489E, he said that Parliament had had several opportunities to amend the law but had not taken them. He quoted the words used by Lord Reid in Shaw v. Director of Public Prosecutions [1962] AC 220, 275, when he said:
  48. "Where Parliament fears to tread, it is not for courts to rush in."

  49. Again, Lord Simon in Director of Public Prosecutions v. Lynch [1975] AC 653, 696A referred to "matters of social policy .... which the collective wisdom of Parliament is better suited to resolve."
  50. In my dissenting speech in Reg. v. Gotts [1992] 2 A.C. 412, in which by a majority your Lordships held that a plea of duress was of no avail in defence to a charge of attempted murder, I drew attention, at p. 440, to two statements contrasting the functions of Parliament and the judges. In Abbott v. The Queen [1977] AC 755 Lord Salmon, said at p. 767:
  51. "Judges have no power to create new criminal offences; nor in their Lordships' opinion, for the reasons already stated, have they the power to invent a new defence to murder which is entirely contrary to fundamental legal doctrine accepted for hundreds of years without question. If a policy change of such a fundamental nature were to be made it could, in their Lordships' view, be made only by Parliament. Whilst their Lordships strongly uphold the right and indeed the duty of the judges to adapt and develop the principles of the common law in an orderly fashion they are equally opposed to any usurpation by the courts of the functions of Parliament."

  52. And in Reg. v. Howe [1987] AC 417 Lord Mackay of Clashfern, speaking of judicial legislation said this at pp. 449-450:
  53. "In approaching this matter, I look for guidance to Lord Reid's approach to the question of this House making a change in the prevailing view of the law in Myers v. Director of Public Prosecutions [1965] A.C. 1001, 1021-1022, where he said 'I have never taken a narrow view of the functions of this House as an appellate tribunal. The common law must be developed to meet changing economic conditions and habits of thought, and I would not be deterred by expressions of opinion in this House in old cases. But there are limits to what we can or should do. If we are to extend the law it must be by the development and application of fundamental principles. We cannot introduce arbitrary conditions or limitations: that must be left to legislation. And if we do in effect change the law, we ought in my opinion only to do that in cases where our decision will produce some finality or certainty.'" (emphasis supplied.)

  54. It is hard, when discussing the propriety of judicial law-making, to reason conclusively from one situation to another, but a further example of reluctance to interfere with a fundamental doctrine, the rule against hearsay, is provided by the difficult case of Reg. v. Kearley [1992] 2 A.C. 228 decided in your Lordships' House. I refer to the statements of my noble and learned friends, Lord Bridge of Harwich at p. 251 and Lord Ackner at p. 258 and of Lord Oliver of Aylmerton at pp. 277-278. I believe, however, that one can find in the authorities some aids to navigation across an uncertainly charted sea: (1) if the solution is doubtful, the judges should beware of imposing their own remedy. (2) Caution should prevail if Parliament has rejected opportunities of clearing up a known difficulty or has legislated, while leaving the difficulty untouched. (3) Disputed matters of social policy are less suitable areas for judicial intervention than purely legal problems. (4) Fundamental legal doctrines should not be lightly set aside. (5) Judges should not make a change unless they can achieve finality and certainty. I consider that all these aids, in varying degrees, point away from the solution proposed in the court below. Since drafting this speech I have enjoyed the privilege of reading the speech delivered by Lord Lloyd of Berwick in Reg. v. Clegg [1995] 2 W.L.R. 80 and I readily adopt all that he has said there on the subject of judicial law making.
  55. It is always a worry, at any level of adjudication, when what is thought to be the law and what is alleged to represent common sense do not appear to coincide, and the presumption has in recent years been the object of some logical and forceful criticisms. I refer first to an article by Professor Glanville Williams, Q.C. in [1954] Crim. L.R. 493 which appears to have formed the basis for his treatment of the presumption in Criminal Law, The General Part, 2nd ed. In his article the learned author set out the conventional view and observed that the test of knowledge of right and wrong was bound up with the theory of moral responsibility, and the right to inflict retributive punishment, since no one can justly be punished unless he is morally responsible. He then says, at pp. 495-496 :
  56. "... the 'common sense' view of moral responsibility and retributive punishment is still widely maintained in respect of the sane adult who commits a crime. Yet in respect of children it is just as generally abandoned. No one whose opinion is worth considering now believes that a child who does wrong ought as a matter of moral necessity to expiate his wrong by suffering. Punishment may sometimes be the best treatment, but if so it is because this is the only way in which the particular child can be made to see the error of his ways. . . In this climate of opinion the 'knowledge of wrong' test no longer makes sense . . . Thus at the present day the 'knowledge of wrong' test stands in the way not of punishment, but of educational treatment. It saves the child not from prison, transportation, or the gallows, but from the probation officer, the foster-parent, or the approved school. The paradoxical result is that, the more warped the child's moral standards, the safer he is from the correctional treatment of the criminal law.
    "It is perhaps just possible to argue that the test should now be regarded as even legally obsolete. The test was designed to restrict the punishment of children and should not be used where no question of punishment arises. This argument has to face the difficulty that the test traditionally protects the child from conviction, whereas the choice between punishment and other treatment is only made after conviction."

  57. Professor Glanville Williams went on to discuss the burden of proof under existing law (p. 498):
  58. "The usual statement of the law is that there is a rebuttable presumption that the child over eight is doli incapax, and it is for the prosecution to prove that the child knew that what he was doing was wrong. Some magistrates interpret this rule so strictly that if the prosecution gives no evidence of this knowledge, they find that there is no case to answer. Now if the police have not interrogated the child before the trial, to obtain an admission from him, they may be wholly without evidence of the child's knowledge. The effect of this interpretation of the law is therefore to encourage the preliminary questioning of wrongdoing children by the police. Otherwise the case may break down although the child is ready to admit his guilty knowledge, for it may be impossible to reach a stage in the case at which the child can be examined.
    "As a matter of policy it is highly desirable that a child who has committed what, for an adult, would be a crime, should be put to answer, even if he is afterwards acquitted on the ground that he did not know his act to be wrong. This desirable result can be reached by drawing a distinction between the burden of proof (or persuasive burden) and the burden of introducing evidence (evidential burden). The burden of proving the child's knowledge of wrong is on the prosecution, but this only means that, when all the evidence is in, the prosecution must fail if the court is not satisfied beyond reasonable doubt of the child's guilt. The fact that the persuasive burden is on the prosecution does not control the burden of introducing evidence on particular issues, for the law may place an evidential burden on the accused even when the persuasive burden is on the prosecution."

  59. In Criminal Law, The General Part 2nd ed., which in other respects closely follows the article in the Criminal Law Review, the learned author does not advert to the possibility of reversing the evidential burden, but at p. 820, after reviewing the cases, he says this:
  60. "These decisions show that the present law is steeped in absurdity, and the report of the Committee on the whole subject is eagerly awaited. It seems utterly wrong that a child who has been in this world for only eight years should be involved in the machinery of the police and the law courts for a mischievous escapade, (paragraphs 274, 277). But if, in default of other arrangements, the machinery of the law has to be invoked for the protection of society and of the child, it should not be liable to be defeated by a rule which reflects an outworn mode of thought."

  61. My Lords, I would now mention two cases in which the presumption came in for criticism. J.B.H. and J.H. (Minors) v. O'Connell [1981] Crim. L.R. 632 was decided by the Divisional Court (Donaldson L.J. and Forbes J.) on 20 January 1981. The case is unreported but your Lordships were given a transcript. The comments of Laws J. are reported at [1994] 3 W.L.R. 892 B-E and 894 F-G.
  62. Two boys aged 13 and 11 broke into a school and stole a screwdriver, three spanners, a lighter, three soldering leads, two watches, a ring and necklace and other articles. They equipped themselves with eggs, flour, cornflakes and 12 tubes of duplicating ink, with which they "redecorated" the school, thereby causing 3,000 worth of damage. When charged with burglary and malicious damage they called no evidence. The magistrates convicted, made a supervision order and fined one boy 100 and the other 50. Donaldson L.J. observed that the defence submission of no case "would strike any non-lawyer as a quite remarkable submission," but pointed out that it was based on the presumption. He continued:
  63. "In this day and age, to coin a phrase, it may require relatively little evidence in a case of this sort to justify magistrates in finding that children of this age do know that what they are doing is wrong. We have, after all, universal education and these boys were of course at school. This was a very simple offence and it would be otherwise with rather more sophisticated offences. If, for example, children between the ages of 10 and 14 were charged with forgery, it might require a considerable body of evidence before magistrates were satisfied that they knew that what they were doing was wrong.
    "These magistrates in this particular case considered the matter very carefully. They set out in the case stated that: We were of opinion that the respondent . . . that is to say the prosecutor . . . had to prove the appellants knew that what they were doing was wrong morally, whether or not they knew it was an offence.' That is absolutely right."

  64. After pointing to the magistrates' detailed review of the facts and to their conclusion that no children aged 11 and 13 could fail to realise that their actions were wrong, Donaldson L.J. proceeded:
  65. "Had the matter been left like that, I think that the justices' decision might well have been upheld. But unfortunately there is a clear self-misdirection revealed by the case because the justices also say: 'There being no evidence before us about the appellants' upbringing or their mental capacity we had to treat them as ordinary boys of their respective ages and to make our decision on the basis of the evidence concerning their activities on 29 April 1979 and their conversations with the Police thereafter.'

    "What the justices are there saying is that it was for the defence to call evidence to show that the appellants were not ordinary boys of their respective ages. That in fact contradicts what they said in the previous paragraph of the case that it was for the respondent to prove that the appellants knew that what they were doing was wrong.

    "It is for the prosecution to rebut this presumption. They can only rebut it by relying upon what the children did if they also call evidence showing that the children were ordinary children with ordinary mental aptitudes."

  66. The Lord Justice concluded that the presumption was part of the substantive law and that there was an error of law by the magistrates.
  67. Forbes J., on whose criticisms of the doctrine Laws J. relied, said this:
  68. "I agree. That children between 10 and 14 are presumed to be exempt from criminal responsibility unless this presumption is rebutted by some evidence that they did the criminal act not only with mens rea but with a mischievous discretion is a common law rule that goes back certainly as far as Hale. No doubt it was a sensible and merciful rule in Hale's days, but in these days of universal education from the age of 5 it seems ridiculous that evidence of some mischievous discretion should be required if a case of malicious damage is committed as it was in this case.
    "But on the principle of stare decisis the common law rule, supported as it is by recent cases, is binding on this court, and I agree that the justices appear to have reversed the presumption and therefore this conviction cannot stand."

  69. The commentary of Professor Birch at [1981] Crim. L.R. 632, 633 is, as always, both interesting and perceptive. I quote a short extract:
  70. "Evidence that any normal child of the accused's age would inevitably realise that his act was so wrong might be thought to be sufficient to rebut the presumption in the absence of some evidence of abnormality. To place an evidential burden on the defence in such circumstances is consistent with the rules concerning proof of abnormality generally, but may overlook the degree of preoccupation with the state of mind of the individual which the courts exhibit in this area, often drawing their inferences from evidence of the upbringing, background and personal characteristics of the child in a way reminiscent of the inquiries conducted to decide whether a child can be sworn.
    "Nevertheless it is submitted that the imposition of such a burden would be justified, and that the criticism voiced by Forbes J. that 'in these days of universal education from the age of five it seems ridiculous that evidence of some mischievous discretion should be required if a case of malicious damage is committed as it was in this case' cannot be said to be without foundation."

  71. I have referred to this case both for its critical comments and for the discussion of the burden of proof which it contains.
  72. I.P.H. v. Chief Constable of South Wales [1987] Crim. L.R. 42 shows the Divisional Court (Woolf L J. and Simon Brown J.) again emphasising the need for the prosecution to rebut the presumption and quashing the conviction of an 11 year old boy who had done serious and deliberate damage to a motor van. Again, your Lordships have been provided with a transcript. As in J.B.H. and J.H. (Minors) v. O'Connell, the court refused to countenance, as a means of rebutting the presumption, the "sensible" argument that any child of the defendant's age would know that he was doing wrong. Woolf L.J., after citing J.M. (A Minor) v. Runeckles (1984) 79 Cr. App. R. 255, said:
  73. "Having regard to that authority and to those passages from the judgment contained in that case, the reasoning of which I would adopt, it is clear that what the magistrates have to ask themselves before they can find the defendant guilty, if he or she is of the age between 10 and 14, is: 'Is there evidence before us on which we can be satisfied that this particular defendant appreciated that what was being done was seriously wrong and went beyond mere naughtiness or childish mischief?'"

  74. Then, having referred to J.B.H. and J.H. (Minors) v. O'Connell as an authority that it is not for the defendant to disprove the presumption that he is a normal boy of his age, he continued:
  75. "That case is certainly not authority for the proposition that in all cases it is necessary to call positive evidence to show that a youngster is a normal child of his age. As appears from the Runeckles case itself, the manner in which a child behaves when being confronted by the police may in itself indicate that the child knew that what he or she was doing was seriously wrong as, for example, running away (as did the appellant in the Runeckles case). However, in this case there was no material before the Justices which indicated that this appellant knew that what he was doing was wrong."

  76. He concluded that it was:
  77. "... quite clear from the magistrates' reasoning that they were approaching the matter on quite the wrong basis. In the absence of any evidence to indicate that he knew that what he was doing was wrong, they assumed that was the position. Although they stated that they had clear evidence that the appellant knew that he was doing wrong, they were mistaken in so saying. In this case, there had to be some material before the justices which would have rebutted the presumption which applies. In fact, there was no such evidence."

  78. Simon Brown J., concurring, made his point succinctly:
  79. "I see nothing in the evidence here to have enabled the Justices to conclude that the appellant child was of a mental age not less than his actual age. They were not entitled to assume that fact in the absence of evidence, which I apprehend to have been the approach which they in fact adopted. In any event, even if the child was of a mental age not less than his actual age, I question whether the admission that he knew that his act would cause damage could possibly be sufficient evidence to found a conclusion that he knew that his action was seriously wrong."

  80. As Professor Birch pointed out in her commentary at [1987] Crim. L.R. 43, to seek to rely on the presumption of normality would be to undermine the object of the presumption of doli incapax itself.
  81. The other case in which that presumption was criticised is A v. Director of Public Prosecutions [1992] Crim. L.R. 34, which was noted by Laws J., at pp. 890G-891A, where Bingham L.J. spoke of "results inconsistent with common sense." The full sentence in which these words were used reads as follows:
  82. "J can understand very well the arguments against treating children of this age as criminals and for extending the scope of care proceedings but the statutory provisions to that end have not yet, as I understand, been implemented, so criminal charges may still be laid, but children have the benefit of the presumption which in this case and some others seems to me to lead to results inconsistent with common sense."

  83. My Lords, I think it is time that I took a look at the reasons given by Laws J. for his conclusions, not for the purpose of refuting them, but to show that they do not conclude the matter.
  84. 1. It is true that there is (and has been for a considerable time) compulsory education and, as the judge said, perhaps children now grow up more quickly. But better formal education and earlier sophistication do not guarantee that the child will more readily distinguish right from wrong.
    2. The presumption is "out of step with the general law." True enough, but the general law was not meant to apply without qualification to children under 14.
    3. I agree that the phrase "seriously wrong" is conceptually obscure, and that view is confirmed by the rather loose treatment accorded to the doli incapax doctrine by the text books, but, when the phrase is contrasted with "merely naughty or mischievous," I think its meaning is reasonably clear.
    4. The rule is said to be illogical because the presumption can be rebutted 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 that the child is doli capax), but at this stage I will focus on the illogicality. We start with a benevolent presumption of doli incapax, the purpose of which was to protect children between 7 (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 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 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 case to answer.

    5. The need for the prosecutor to rebut the presumption may give rise to injustice where the rebuttal involves proving previous convictions. I remind your Lordships of the relevant passage in the judgment [1994] 3 W.L.R. 888, 895F:

    ". . .the presumption's application may also give rise to the risk of injustice. In Reg. v. B [1979] 1 W.L.R. 1185, to which I have already referred, the Court of Appeal held that a child's previous convictions may in principle be admitted in evidence to rebut the presumption. If that were to happen before a jury, in a case where the child defendant disputed the primary facts, the prejudicial consequences can only too readily be imagined. It is no answer to say that the judge would possess a discretion to exclude such evidence. So he would; but the case might be one where there was no other evidence available to counter the presumption's application, and the judge would then be faced with an impossible choice between doing rank injustice to the defendant and doing rank injustice to the prosecution. No doubt that would be an extreme case. But it illustrates the needlessly distortive effect which this rule produces in the execution of criminal justice."

  85. The last sentence above makes the point: There must be something badly wrong with a doctrine which can involve such unjust results. This proposition needs to be scrutinized.
  86. One would, of course, have to know the nature of the earlier convictions before accepting that they might properly prove a guilty mind in relation to the offence charged. Secondly, can the opinion of an earlier court or jury prove the guilty mind vis a vis the later charge? I can see the argument that the child, if convicted and, a fortiori, if punished for the offence, could be said to know thenceforward right from wrong. But I think there is a simpler answer to the problem. If the primary facts are disputed, my own opinion is that, despite Reg. v. B, a child defendant ought not to be put in a worse position than an adult by having evidence of his previous convictions admitted unless they can be admitted under a generally applicable principle, for example, if he has put his character in issue or attacked the character of prosecution witnesses or if the earlier convictions come within the "similar facts" rule (see on this point Kenny's Criminal Law, 19th ed., p. 80 note 2). In Reg. v. B [1979] 1 W.L.R. 1185 the offence charged was blackmail and the report does not disclose what the earlier convictions were for. The only clue is to be found in the trial judge's observation, at p. 1187C that:
  87. "... it seems to be blindingly obvious that if a person charged with an offence of dishonesty has been before the juvenile court and there has been recorded a finding of guilt in respect of such a case, that must be relevant as to whether or not he knows the difference between right or (sic) wrong."

    Later, referring to what evidence may be admitted to prove knowledge of right and wrong, the judge said:

    "And it must, in my view, include evidence of convictions, provided those are relevant." (I assume that this means relevant to prove knowledge of the difference between right and wrong.) "It does seem to me that a situation could arise where the prosecution might be seeking to prove findings of guilt which could really have no bearing on this issue, and if that were the situation then one would without hesitation say that the prejudicial effect of such evidence would outweigh any possible beneficial value and that such evidence should be excluded. But that is not the situation which arises in this case."

  88. Unfortunately, as I have said, the report of the case does not show what the previous convictions were for. The judge's observations would exclude evidence of a conviction of assault or riding a bicycle on the footpath but not necessarily a conviction for stealing, which would not be admitted under the similar facts rule. Such a conviction could well be relevant to prove "knowledge," but it would be inadmissible, (though very prejudicial) to prove the primary facts. What the report does reveal is that the defence abandoned the presumption once the judge had ruled against them. Therefore I would infer that there was a working defence on the primary facts. Assuming that the previous convictions were allowed to be put in evidence but were not admissible under the similar facts rule, it would clearly have been in vain for the judge to tell the jury to disregard them when considering the primary issue but then to take account of them if they had to decide the "knowledge" issue.
  89. Lord Widgery, C.J., delivering the judgment of the Court of Appeal said, at p. 1187F:
  90. "The judge in clear terms was taking the view that, where the presumption applies, the prosecution can seek to remove the effect of the presumption and to call evidence to that effect. A moment's thought will make it clear that that is so. If the presumption is allowed to stand and the prosecution did not call evidence to rebut it, then, at the close of the prosecution case, there would be a ruling that there was no case to answer. It seems to us, as it seemed to the judge below, that to guard against that ridiculous result, one must accept the fact that the prosecution can call relevant evidence which is relevant on the issue of the young man's capacity to know good from evil."

  91. The cases cited in Reg. v. B were concerned with evidence of the defendant's general background and, so far as the above passage deals with that kind of evidence, I freely concur in what was said. But I do not think it right (assuming that to be the position) to admit non-similar fact evidence which would be inadmissible on issue 1 for the purpose of proving the prosecution's case on issue 2. If the prosecution's case must sometimes fail 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. To hold a split trial, dividing issues 1 and 2 would not be practicable and such a procedure would soon conduce to the inference at an early stage of the trial that evidence of previous convictions will be tendered if issue 1 is decided against the accused. I hope your Lordships will forgive me for devoting some time to the previous convictions argument, which appears to me to involve a general principle and to be something which will concern trial judges for so long as they have to cope with the doli incapax doctrine.
  92. 6. It has also been said that the rule is divisive because it bears hardly on perhaps isolated acts of wrongdoing done by children from "good homes," and also perverse because it absolves children from "bad homes" who are most likely to commit "criminal" acts. One answer to this observation (not entirely satisfying, I agree) is that the presumption contemplated the conviction and punishment of children who, possibly by virtue of their superior upbringing, bore moral responsibility for their actions and the exoneration of those who did not. The Divisional Court's argument provides support for the modern outlook in favour of prescribing suitable treatment (which may or may not be punitive) for the many children who commit antisocial acts, instead of searching for moral culpability, which should then be visited with retribution.

    7. It is then said (with considerable force, I would admit) that the presumption is an outmoded survival from an age in which criminal guilt was inevitably followed by ferocious retribution. But, while times have greatly changed since the days when children of 8 and 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 and 14 from the full force of the criminal law.

  93. I now turn to the arguments against abolition which Laws J. mentioned.
  94. (1) The first is that it is the general rule not to alter the law, either by statute or by developing the common law, so as to render an act punishable in retrospect. I accept the point that an "offender" when charged could scarcely say, "Unfair; when I transgressed, I thought my act was only naughty and not seriously wrong." But, speaking objectively, something which when done was not regarded as a crime will, if the court below was right, ultimately turn out to have been one.
    (2) The second argument and the judge's answer appear at pp. 896H-897B:
    "(2) The presumption is of such long standing in our law that it should only be changed by Parliament, or at least by a decision of the House of Lords. But antiquity of itself confers no virtue upon the legal status quo. If it did, that would assault one of the most valued features of the common law, which is its capacity to adapt to changing conditions. The common law is not a system of rigid rules, but of principles, whose application may alter over time, and which themselves may be modified. It may, and should, be renewed by succeeding generations of judges, and so meet the needs of a society that is itself subject to change. In the present case the conditions under which this presumption was developed in the earlier law now have no application. It is our duty to get rid of it, if we properly can."

    My Lords, I have already endeavoured to demonstrate that this excellent principle cannot be applied in the present situation.

    (3) I will not expand here on the doctrine of judicial precedent which the learned judge has aptly described at p. 897B. I cannot, however, agree that the court was not bound by the current of authority, including the decisions of the Court of Appeal mentioned at p. 897D. I consider that to classify the impugned doctrine as an "unargued premise" which was "simply assumed to apply" takes too narrow a view of our doctrine of precedent. The presumption, stated as a rule of law, was the major premise and the facts of each case constituted the minor premise from which jointly the result was to be inferred. For support of this proposition I rely on the observations of Lord Simon of Glaisdale in Lupton v. F.A. & A. B. Ltd [1972] AC 634, 658-659, where he designated the rule in Rylands v. Fletcher (1868) LR 3 HL 330 as the major premise of the decision and the facts of the case as the minor premise. I leave the point there because the doctrine of precedent and the stare decisis rule, while still important, are not decisive in your Lordships' House.

  95. Mr. Henriques Q.C., presenting the respondent's case, frankly conceded that the Divisional Court was bound by authority to recognise and apply the presumption, but he submitted that the presumption was illogical in conception and bizarre in its effect. His written case contained submissions based on the current educational standards of children and on the ever earlier onset of their physical and psychological maturity, as witnessed by the recent statutory abolition of the irrebuttable common law presumption that boys under 14 are incapable of offences involving sexual intercourse on their own part (Sexual Offences Act 1993). The written case also listed examples of legislative and judicial changes of attitude towards young children called as witnesses. Against this background counsel submitted, not that the presumption should be swept away, but (echoing the 1954 proposal of Professor Glanville Williams) that in recognition of its frailties your Lordships should by judicial intervention effect a change by laying it down that the prosecution's initial burden of showing a prima facie case against a child should be the same as if the accused were an adult but that the child should then be able by evidence to raise as a defence the issue that he was doli incapax; it would then be for the prosecution to prove to the criminal standard that the child was doli capax. That your Lordships in a judicial capacity could make this change, which counsel characterised as merely procedural, was an express and necessary part of his argument.
  96. Of course, no-one could possibly contend (nor did Mr. Henriques try to do so) that this proposal represents what has always been the common law; it would be a change or a "development." It is quite clear that, as the law stands, the Crown must, as part of the prosecution's case, show that a child defendant is doli capax before that child can have a case to meet. To call the proposed innovation a merely procedural change greatly understates, in my view, its radical nature, which would not be disguised by continuing to impose the persuasive burden of proof upon the prosecution. The change would not merely alter the trial procedure but would in effect get rid of the presumption of doli incapax which must now be rebutted before a child defendant can be called for his defence and the existence of which will in practice often prevent a charge from even being brought. This reflection must be enough to discourage any thought of "judicial legislation" on the lines proposed.
  97. In the course of his argument Mr. Henriques invited your Lordships to take courage from the decision in Reg. v. R [1992] 1 AC 599, whereby your Lordships' House disposed of Hale's proposition that a man could not be guilty of rape upon his wife. That case dealt with a situation in which the wife had left home and thus was similar in its facts to a number of cases in which the Hale principle had already been departed from. It must, however, be acknowledged that the decision (since given statutory effect by section 142 of the Criminal Justice and Public Order Act 1994) was quite general in its terms and thus contemplated that a husband living with his wife could, if he forced himself upon her, have been charged with rape contrary, it could be argued, to the non-retrospective principle of law reform. But, apart from this feature, what was done in Reg. v. R seems to me very different from what the respondent asks your Lordships to do in the present case. Reg. v. R dealt, in the first place, with a specific act and not with a general principle governing criminal liability. It was based on a very widely accepted modern view of marital rape and it derived support from a group of up-to-date decisions. The principle rejected in Reg. v. R stood on a dubious legal foundation. And, in contrast to the present case, a definite solution could be. and was, achieved. Moreover, unlike the presumption here, Hale's doctrine had not been given the stamp of legislative, judicial, governmental and academic recognition. Certainly the abolition of the presumption could never in the present case be described as "the removal of a common law fiction."
  98. Clearly then, in my view, the presumption, for better or worse, applies to cases like the present. I turn, therefore, to consider what must be proved in order to rebut the presumption and by what evidence. This inquiry is embraced by the second part of the certified question.
  99. A long and uncontradicted line of authority makes two propositions clear. The first is that the prosecution must prove that the child defendant did the act charged and that when doing that act he knew that it was a wrong act as distinct from an act of mere naughtiness or childish mischief. The criminal standard of proof applies. What is required has been variously expressed, as in Blackstone, "strong and clear beyond all doubt or contradiction," or, in Rex v. Gorrie (1919) 83 J.P. 136, "very clear and complete evidence" or, in B v. R (1958) 44 Cr. App. R. l, 3 per Lord Parker C.J., "It has often been put in this way, that . . . 'guilty knowledge must be proved and the evidence to that effect must be clear and beyond all possibility of doubt'." No doubt, the emphatic tone of some of the directions was due to the court's anxiety to prevent merely naughty children from being convicted of crimes and in a sterner age to protect them from the draconian consequences of conviction.
  100. The second clearly established proposition is that evidence to prove the defendant's guilty knowledge, as defined above, must not be the mere proof of the doing of the act charged, however horrifying or obviously wrong that act may be. As Erle J. said in Reg. v. Smith (1845) 1 Cox C.C. 260:
  101. "... a guilty knowledge that he was doing wrong - must be proved by the evidence, and cannot be presumed from the mere commission of the act. You are to determine from a review of the evidence whether it is satisfactorily proved that at the time he fired the rick (if you should be of opinion he did fire it) he had a guilty knowledge that he was committing a crime."

  102. The report of Rex v. Kershaw (1902) 18 T.L.R. 357, where a boy of 13 was charged with murder, states:
  103. "His Lordship [Bucknill J.], in summing up, pointed out that the commission of a crime was in itself no evidence whatever of the guilty state of mind which is essential before a child between the ages of 7 and 14 can be condemned."

  104. In that case the jury found the prisoner guilty of manslaughter and he was sentenced to 10 years' penal servitude.
  105. 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 it was in the present case, 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 a policeman.
  106. The Divisional Court here, assuming that the presumption applied, 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.
  107. 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 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 34 of the Criminal Justice and Public Order Act 1994 a child defendant's silence when questioned before trial may be 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 mention at the earlier stage, but I do not see how that provision could avail the prosecution on the issue of guilty knowledge. Mr. Robertson 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 existence was initially overlooked in Reg. 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 of mature moral discernment, although the two are not true equivalents.
  108. My Lords, I have reached without difficulty the conclusion that both parts of the certified question should be answered "YES". I would therefore allow the appeal and remit the case to the High Court in order that it may be sent back to the Youth Court with a direction to dismiss the charge against the appellant. But the judges in the court below have achieved their object, at least in part, by drawing renewed attention to serious shortcomings in an important area of our criminal law. Forty years have passed since the article by Professor Glanville Williams and the years between have witnessed many criticisms and suggested remedies, but no vigorous or reasoned defence of the presumption. I believe that the time has come to examine further a doctrine which appears to have been inconsistently applied and which is certainly capable of producing inconsistent results, according to the way in which courts treat the presumption and depending on the evidence to rebut it which is available in each case.
  109. One solution which has already been suggested is to abolish the presumption with or without an increase in the minimum age of criminal responsibility. This, as Mr. Robertson pointed out. could expose children to the full criminal process at an earlier age than in most countries of Western Europe. An alternative might be to give a Youth Court exclusive jurisdiction (save in family matters) over children up to a specified age (say, 14 or 16) applying only civil remedies for anti-social behaviour under 10 (or 12) years and both civil and punitive remedies above that age.
  110. Your Lordships will remember the way in which Harper J. began his judgment in R (A Child) v. Whitty (1993) 66 A Crim. R. 462, a case decided by the Supreme Court of Victoria:
  111. '"No civilised society', says Professor Colin Howard in his book entitled Criminal Law (4th ed., 1982) p. 343, 'regards children as accountable for their actions to the same extent as adults.'

    "The wisdom of protecting children against the full rigour of the criminal law is beyond argument. The difficulty lies in determining when and under what circumstances that protection should be removed."

  112. The distinction between the treatment and the punishment of child "offenders" has popular and political overtones, a fact which shows that we have been discussing not so much a legal as a social problem, with a dash of politics thrown in, and emphasises that it should be within the exclusive remit of Parliament. There is need to study other systems, including that which holds sway in Scotland, a task for which the courts are not equipped. Whatever change is made, it should come only after collating and considering the evidence and after taking account of the effect which a change would have on the whole law relating to children's anti-social behaviour. This is a classic case for Parliamentary investigation, deliberation and legislation.
  113. I believe, my Lords, that we have reached the stage when the author of a lengthy judgment (or a lengthy argument) needs an excuse for his prolixity. My excuse is that, reviewing a bold and imaginative judgment, I have deemed it not only courteous but also necessary to demonstrate my reasons for saying that the presumption is still part of our law, and not just to assert the fact. Secondly, without suggesting the answer, which I am not qualified to give, I hope that my survey may help to provide the incentive for a much-needed new look at an undoubted problem.
  114. LORD BROWNE-WILKINSON

    My Lords.

  115. I have had the advantage of reading the speech of my noble and learned friend Lord Lowry.
  116. I agree with him that the appeal should be allowed and that the certified question should be answered in the affirmative.
  117. For the reasons which he gives I am satisfied that the present law is clear. As his speech discloses, the question has been the subject matter of reports by Committees and White Papers from 1927 down to 1990. The matter having been considered by the Government as recently as 1990 and the decision not to introduce any change in the law taken, I cannot think it is appropriate for the courts at this stage to change the law by judicial decision. I prefer to express no view of my own as to what the law should be.


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