Neutral Citation Number: [2007] EWHC 946 (Admin)
Case No: CO/8754/2006
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
ON APPEAL FROM BISHOP AUCKLAND YOUTH COURT
DISTRICT JUDGE MJ WOOD

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 27th April 2007

Before :

LADY JUSTICE SMITH
MR JUSTICE GROSS
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Between :

	Crown Prosecution Service	Claimant	
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	P	Defendant	
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(Transcript of the Handed Down Judgment of
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Mr Brian Hurst (instructed by CPS) 
Mr Christopher Dorman O'Gowan (instructed by Hewitts Solicitors) for the Defendant

Hearing date: 27 February 2007
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Judgment

Lady Justice Smith : 
1.	This is an appeal by way of case stated against the decision of DJ Wood sitting in the Bishop Auckland Youth Court in which he stayed, as an abuse of process, criminal proceedings brought against the respondent P, a boy now aged 13 years. The appeal is brought by the Crown Prosecution Service (CPS).
History 
2.	P was born in 1993.  His behaviour and development gave rise to concern when he was only 4.  At the age of 5, he was referred to the Department of Child and Family Psychiatry at Bishop Auckland.  At the age of 7, he was diagnosed as having Attention Deficit Hyperactivity Disorder (ADHD) and was prescribed Ritalin.  In 2002, he was assessed as having special educational needs.  In 2003, by which time he was 10, it was noted that, despite his medication, his behaviour was not well controlled.  
3.	In 2004, he was brought before the youth court to face allegations of kidnapping, false imprisonment, indecent assault, criminal damage, burglary, taking a vehicle without consent and driving without a licence.  All these offences were said to have been committed within a period of 6 weeks in March and April 2004.  The youth court committed him for trial at the Teesside Crown Court.  On 2nd June 2005, at that court, His Honour Judge Bryant QC was shown a number of psychological and psychiatric reports on the basis of which the prosecution accepted that P was unfit to plead.  The proceedings were stayed at that stage.      
The Current Proceedings in the Youth Court 
4.	In 2005, a complaint was made that P had assaulted another child on 24th August. Then on 29th September, the police arrested him, allegedly at the wheel of a car; he was said to be in the act of backing it out of the drive of the owner, who had left the keys in his possession, so that he could listen to the car radio.  On 17th November 2005, he appeared before the youth court and denied both allegations.  By so doing, he implicitly accepted that he was fit to plead.    
5.	On 26th April 2006, he appeared in court again at the hearing of a defence application to have the proceedings stayed as an abuse of the process of the court. It was contended that P did not have a sufficient level of maturity or intellectual capacity to understand and participate effectively in the proceedings.  DJ Wood considered the same psychological and psychiatric reports as had been considered by Judge Bryant in June 2005.  He also had a recent report, dated 22nd April 2006, from Mr Charles Burdett, the consultant clinical psychologist who had previously reported.  
6.	In his first report dated 24th July 2004, Mr Burdett opined that P had been properly diagnosed as having ADHD.  He had a verbal IQ of 60 and a performance IQ of 74, giving a full scale IQ of 65.  He was in the lowest centile of the population.  At the age of 11 (as he then was) P had a mental age of 7 years and 4 months.  Mr Burdett was of the view that, on account of his poor verbal reasoning and level of comprehension, P would have great difficulty in understanding concepts such as right and wrong and differentiating between ‘seriously wrong’ and ‘merely naughty’.  That last expression of opinion appears to be directed at the question of whether P was doli incapax.
7.	The other professionals who had reported for the purpose of the 2005 proceedings agreed with the diagnosis of ADHD and accepted the IQ assessments.  All accepted that P did not have the capacity to participate effectively in a criminal trial.  Dr Surya Bhate, a consultant adolescent forensic psychiatrist, was of the view that P would only partially understand court proceedings.  He had little understanding of the role of a judge or jury and an imperfect understanding of the role of his own solicitor.  Although P had told Dr Bhate that he would be able to tell his solicitor if someone told lies about him, she doubted whether he would have the concentration to listen to the evidence so as to be able give such instructions.  She did not think that he would be able to give evidence, due to his inability to concentrate, and also doubted whether he would be able to remember the incidents under discussion. 
8.	Dr Alison Westman, a consultant child and adolescent psychiatrist, took a slightly different view of P’s difficulties.  She said that he was not fit to plead.  She accepted the IQ assessment of Dr Burdett but she was of the view that P’s intellectual deficit would not of itself prevent him from understanding the issues and following proceedings in court.  She thought that he was so ‘disengaged from any process in which he could learn effectively or accept advice’ that he would be unable to cope with or follow the proceedings.  As I understand her report, she was saying that it was not so much his intellectual problems that made it impossible for P to take part in the proceedings but his behaviour.  Dr Westman added a section about the disposal that would be appropriate if the court proceeded to find that P had done the acts alleged.  She opined that his mental health difficulties did not warrant the making of an order under the Mental Health Act 1983.  She recommended that, if the court were minded to discharge P, before it did so, ‘a robust and comprehensive multi-agency package should be put together’ with the aim of ‘improving his behaviour and emotional and social functioning’ and also ‘with the important aim of offering ongoing risk assessment and risk management’.  It is not clear to me under what power Dr Westman had in mind that her suggestions could be put into effect.
9.	Pausing there, it is not difficult to understand why, in June 2005, the prosecution accepted, without argument, that P was unfit to plead in the Crown Court proceedings.  Mr Burdett had implied that he was unfit to plead; Dr Westman had said so in terms and Dr Bhate had not disagreed.  There was no other evidence to gainsay this apparently unanimous view.  I do not know whether Judge Bryant considered the possibility of proceeding further. In theory he could have applied the procedure set out in sections 4, 4A and 5 of the Criminal Procedure (Insanity) Act 1964 as amended.  He would have had to swear a jury to find whether P had done the acts alleged against him.  If the jury had found that he had, the judge could then have considered obtaining further evidence with a view to making a hospital order (which Dr Westman had said was inappropriate) or a supervision order.  Judge Bryant may have thought that that procedure, involving a jury, was inappropriate for a child of P’s age.  In any event, this procedure was not followed and it appears that the proceedings were stayed and no order was made against P.     
10.	Mr Burdett’s report of 22nd April 2006, prepared for the hearing in the youth court confirmed and enlarged upon his earlier views.  He said that P’s level of intellectual functioning was within the learning disabled range.  His verbal intellectual skills, his general memory functioning and his ability to pay attention and concentrate were all within the severely disabled range.  He was diagnosed as having ADHD and a conduct disorder.  He would not be capable of understanding the nature of court proceedings.  He would not be able to concentrate on the evidence and argument in a courtroom.  His memory capacity was so impaired that he would not remember what had gone before.  He would not understand much of what was going on during the proceedings.  Also, he would have very little understanding of the significance of his own behaviour.  He would not be capable of forming the necessary intent for the offences he was said to have committed.  In effect, there was no change from the position in 2004.  The Prosecution did not challenge Mr Burdett’s report and did not commission any other report. 
11.	It should be noted that the reports addressed a number of issues.  They considered whether P knew that what was being alleged against him was seriously wrong and they also addressed fitness to plead, the formation of intent and the question of whether he would be able to play an effective part in a criminal trial.  
12.	It appears from the skeleton arguments prepared for the hearing before the youth court that the defence submitted that, since the abolition in 1998 of the common law rule relating to doli incapax, the only way in which a child of P’s age with cognitive disabilities could be protected from criminal proceedings which he did not have the capacity to understand was by an abuse application.  It was submitted first, that if the rule relating to doli incapax were still in force, the prosecution would not have been able to demonstrate that P knew that what he was alleged to have done was seriously wrong.  Also, it was submitted that the psychological and psychiatric reports showed that he would not be able to understand and effectively participate in any court proceedings. Therefore there should be a stay.   
13.	The prosecution response to this was to submit that the correct procedure to follow in cases before the youth court, where the issue of the defendant’s fitness to plead or capacity to understand the proceedings was raised, was provided for in section 37(3) of the Mental Health Act 1983 (MHA 1983) read together with section 11(2) of the Powers of Criminal Courts (Sentencing) Act 2000 (PCCSA 2000).   In summary, the prosecution contention was that, if the court was of the view that P ought not to face trial by reason of his disability, the court should proceed to decide whether he had done the acts alleged and, if satisfied that he had, should then consider medical evidence and all the circumstances of the case before deciding whether an order under section 37(2) of the Mental Health Act was appropriate.  In fact, section 37(2) provides for the making of a hospital order or, in the case of a defendant aged 16 or over, a guardianship order or no order.  Thus the only possible orders that could be made in P’s case, if the judge were to find that he had done the acts alleged, would have been a hospital order or no order.  It should be noted that both defence and prosecution made submissions on the basis that the defence of doli incapax had been abolished.      
14.	DJ Wood stayed the proceedings.  In the case stated, DJ Wood explained his reasons for so doing and posed questions for this court.  He said that, being seized of an application to stay the proceedings as an abuse of process, he directed himself first by reference to R (P) v Barking Magistrates Court [2002] EWHA Admin 734.  In that case, P, a boy aged 16, who had learning difficulties, faced a number of charges.  A psychologist expressed the view that his IQ was so low (full scale IQ was only 52) that P would not be able to understand or reply rationally to the charges.  The justices decided that he was fit to plead; they had formed a view of him from watching him during the proceedings so far, in which he had taken no active part.  P sought and was granted judicial review.  The court would have been prepared to hold that the justices had no evidence on which to base their conclusion but instead held that the procedure which the justices had adopted was ‘entirely inappropriate’.  In the course of his judgment, Wright J said:  
“The procedure for dealing with matters of this kind in the magistrates court is specifically provided for by a combination of s.37(3) of the Mental Health 1983 when read in conjunction with the Powers of Criminal Courts (Sentencing) Act 2000 w.11(1).  Under the 2000 Act s.11(1), if on the trial at a magistrates court of an offence punishable on summary conviction punishable with imprisonment, the court
(a)	is satisfied the accused did the act or made the omission charged, but
(b)	is of the opinion that an enquiry ought to be made into his physical or mental condition, before the method of dealing with him is determined, the court shall adjourn the case to enable a medical examination and report to be made, and shall remand him.
Under the Mental Health Act 1983 s.37(3), where a person is charged before a magistrates court with any act or omission as an offence, and the court would have power on convicting him of that offence to make a Hospital Order or Guardianship Order under (1) above, in his case as being a person suffering from mental illness or severe mental impairment, then if the court is satisfied that the accused did the act or made the omission charged, the court may if it thinks fit, make such an order without convicting him.
It will be seen that these two provisions provide a complete statutory framework for a determination by the magistrates’ court of all the issues that arise in cases of defendants who are or may be mentally ill or suffering from severe mental impairment in the context of offences that are triable summarily only.”
15.	This was the passage cited by DJ Wood. He did not cite, although he might usefully have done, the passage which followed directly upon the passage just cited:  
“It will be also be noted that the criteria for exercising the powers vested in the magistrates court under section 37(3) are considerably less strict and more flexible than the common law rules governing the issue of fitness to plead in the Crown Court.”
…….
I would have thought that the proper course is …. to remit the matter to the Barking youth court to be reconsidered …. in accordance with the machinery provided by the Mental Health Act 1983 and the Powers of Criminal Courts (Sentencing) Act 2000 -- that is to say first to determine whether P did the acts alleged against him, and if so, whether the case is one for an order under section 37(2) of the Mental Health Act 1983.” 
16.	Pausing there, it seems to me that, although the provisions of section 11(1) PCCSA 2000 and 37(3) of MHA 1983 may provide a complete statutory framework for the determination of ‘all the issues that may arise in case of defendants who are or may be mentally ill or suffering from severe mental impairment….’, they do not provide the solution to all the problems which may confront a youth court before which a young person of doubtful capacity appears. 
17.	I revert to the case stated. Having cited from the Barking case, DJ Wood said that the first question he must ask himself was whether the application by the defendant for a stay was premature.  Ought he to allow the trial to begin and see how matters progressed?  He referred himself to the case of R (TP) v West London Youth Court [2005] EWHC 2583.  In that case, it was submitted to the youth court that a boy of 15, with the intellectual capacity of an 8 year old, ought not to face trial. The district judge decided that the trial should proceed and the defendant sought judicial review.  The Divisional Court (Scott Baker LJ and Rafferty J) upheld the view of the district judge. He had correctly directed himself.  In any event, said the Court, the district judge had a continuing jurisdiction to stay the proceedings if, at any stage during the trial, he concluded that the defendant was not able to participate effectively.  It was a better course to allow the trial to proceed than to stay the proceedings at the outset.  
18.	DJ Wood then considered the medical evidence before him and concluded that the application was not premature; he did not explain why he took that view.
19.	The judge then referred to SC v UK [2004] 40 EHRR 10.  In that case, an 11 year old boy, SC, was charged with attempted robbery.  He had previous findings of guilt.  The youth court committed him to the crown court for trial.  An application was made to stay the proceedings as an abuse of process on account of the boy’s limited intellectual capacity and inability effectively to take part in a trial.  It was not alleged that he was unfit to plead, but it was argued that a trial before the crown court would be a breach of his Article 6 Convention rights.  In due course, SC was tried and convicted; his appeal to the Court of Appeal (Criminal Division) failed and he appealed to the European Court of Human Rights.  It was common ground that SC’s Article 6 rights had been breached if he had been unable effectively to participate in his trial.  In the course of its judgment, the Court described ‘effective participation’ in a trial in the following way: 
“However, “effective participation” in this context presupposes that the accused has a broad understanding of the nature of the trial process and of what is at stake for him or her, including the significance of any penalty which may be imposed.  It means that he or she, if necessary with the assistance of, for example, an interpreter, lawyer, social worker or friend, should be able to understand the general thrust of what is said in court.  The defendant should be able to follow what is said by the prosecution witness and, if represented, to explain to his own lawyers his version of events, point out any statements with which he disagrees and make them aware of any facts which should be put forward in his defence.”
20.	DJ Wood set out the minimum requirements of a fair trial as they appeared in Scott Baker LJ’s judgment in the West London case to which we have referred. 
“The judge had earlier correctly directed himself that the minimum requirements for a fair trial for the claimant were:
(1)	he had to understand what he is said to have done wrong
(2)	the court had to be satisfied that the claimant when he had done wrong by act or omission had the means of knowing that was wrong
(3)	he had to understand what, if any, defences were available to him
(4)	he had to have a reasonable opportunity to make relevant representations if he wished
(5)	he had to have the opportunity to consider what representation he wished to make once he understood the issues involved.
He had therefore to be able to give proper instructions and to participate by way of providing answers to questions and suggesting questions to his lawyers in the circumstances of the trial as they arose.”
21.	The district judge asked himself whether he was satisfied, on the balance of probabilities, that the defendant would, in a youth court, assisted by specialist and experienced representatives, be able to participate effectively to the extent required for a fair trial.  The judge was of the view that the medical evidence showed that he would not.  He referred back to the decision of Judge Bryant in June 2005, to the same effect.  He observed that there had been no real change in P’s condition since then.  He said that the case was exceptional but he thought it right to stay the proceedings on the basis that P could not effectively participate in the proceedings so as to ensure a fair trial.  The proceedings were stayed.  
22.	For the sake of completeness, I add that, on 12 June 2006, the Durham County Council commenced care proceedings under the Children Act 1989.  An interim care order was made and P is now living in local authority accommodation.  Proceedings in respect of a full care order are due to be heard in April 2007.  

The Appeal on Case Stated –The Questions 
23.	After setting out the basis of his decision, the District Judge posed five questions for this court.
“(i)	Where it is established that a person would be unfit to plead due to their (sic) mental capacity in a court of higher authority is it an abuse of process to try them (sic) thereafter for subsequent criminal acts?”
(ii)	Where the magistrates’ court establishes that a person cannot be tried in accordance with R v Barking Youth Court [2002] EWHC Admin 734 and then undertakes an inquiry into whether a Defendant did the act alleged, is that a criminal trial?
(iii)	At what point in proceedings is it necessary for the court to make a decision in accordance with the procedure set out in R v Barking Youth Court [2002] EWHC Admin 734.
(iv)	Whether I erred in concluding on the evidence that the defendant did not have the mental capacity to effectively participate in the proceedings and accordingly stayed the proceedings on that basis?
(v)	Where it is established that a defendant is unfit to plead, to what extent is it necessary for him to participate in any trial of the facts?
24.	Strictly speaking only the fourth of these questions goes to the heart of the appeal.  However, it is apparent that the district judge was troubled by other issues and was seeking the guidance of this court. 
Submissions  
25.	In opening the appeal, Mr Hurst, who appeared for the CPS, told the court that district judges up and down the country were being faced, with increasing frequency, with the kind of problem which had faced DJ Wood here.  They were in difficulty, as the statutory provisions governing their powers and the procedure they should follow were not clear.  They needed clarification.  Also the CPS was concerned that children and young people, charged with quite serious offences, were too easily able to escape the operation of the criminal law by demonstrating an inability effectively to take part in their trials.  
26.	Mr Hurst submitted that three questions were posed by this appeal.  These were: 
(i)	Did the district judge misunderstand his powers? 
(ii)	Was the district judge wrongly influenced by the decision of HH Judge Bryant? and
(iii)	What procedure should district judges follow in this kind of situation?  
He said that the answer to the first would determine the outcome in this case; the answers to the second and third would provide guidance to district judges and magistrates sitting in youth courts.  
27.	Mr Hurst’s argument was that the only statutory provisions governing the procedure to be followed where there was evidence that a child might not be fit to plead or be unable to take an effective part in his trial left a lacuna.  These provisions were section 37(3) of MHA 1983 and section 11(1) of PCCSA 2000.  We have already set out these provisions in the citation from the Barking case in paragraph 13 above.  In a nutshell, they provide for the court to decide whether a defendant has done the acts alleged before considering whether an order should be made under section 37(2) of the MHA 1983. 
28.	Mr Hurst’s complaint was that it is not clear how the court should proceed if the issue of capacity is raised at the start of the proceedings, as it was here, in the form of an application to stay the proceedings as an abuse of process.  How would the judge ever reach the stage of considering whether the defendant had done the acts alleged if he considered that the defendant was not capable of taking an effective part in the proceedings?  Here, the judge considered whether P was capable of taking an effective part in the trial and, on holding that he was not, that was an end to the matter.  What procedure ought the judge to have followed? 
29.	Mr Hurst submitted that the procedure outlined in the Barking case would be appropriate in almost all cases but he accepted that there would be some in which it was not.  In the course of oral argument, Mr Hurst advanced his proposals as to how the court should proceed where an abuse argument is raised on the ground of the defendant’s inability to take an effective part in the trial, whether before or after a not guilty plea has been entered.  He submitted that the judge should consider the medical reports at the outset.  Then, as a rule, he should allow the prosecution to present its case.  He should, of course, ensure that the defendant is properly represented.  At the close of the prosecution case, he should consider whether there is a case to answer; if there is not, the charge should be dismissed.  At that stage the judge should consider whether the defendant was or had been able to take an effective part in the trial; if so the trial would proceed to its conclusion.  If the judge considered at the half time stage (or indeed at any other stage) that the defendant was not able to participate effectively, he should say so.  The proceedings would then cease to be a criminal trial and the judge would switch to find as a fact, whether the defendant had done the acts alleged.  The defence might wish to call evidence directed to that issue but the fact that the defendant was unable to take any effective part in the proceedings would not matter; his Article 6 Convention rights would not be breached because he was not in jeopardy of any punishment: see Re H [2002] EWCA Crim 2988. At the close of evidence, the judge would decide whether the defendant had done the acts alleged; if he had, the judge could call for further medical evidence if he thought that it might be appropriate to make a hospital order.  
30.	Mr Dorman O’Gowan agreed that these proposals would provide a satisfactory procedure for youth courts to follow in most of the cases in which an inability to participate effectively was raised as an issue.  However, his main concern was to impress upon the court that there would be some cases where the evidence of incapacity was so strong and the inability of the defendant to participate effectively so clear that the court would be justified in staying the proceedings at the outset without hearing any evidence.  The court would in such cases be entitled to say that the defendant’s incapacity was such that it would be an abuse of process to allow the proceedings to go any further.  He submitted that P’s was one such case.   
Discussion- Background  
31.	I think it appropriate to begin from first principles.  The principal aim of the youth justice system, as defined in section 37 of the Crime and Disorder Act 1998 is to prevent offending by children and young persons.  All persons and bodies carrying out functions in relation to the youth justice system have a duty to have regard to that aim.  Section 38(1) imposes a duty on local authorities to provide youth justice services within its area and subsection (2) provides that it is the duty of every chief officer of police, police authority, probation committee or health authority to cooperate with the local authority in the discharge of its duty to make youth justice services available. 
32.	Section 39(1) of the Crime and Disorder Act 1998 requires each local authority to set up a youth offending team which must include a probation officer, a social worker from the authority’s social services department, a police officer, a person nominated by a health authority and a person nominated by the authority’s chief education officer.  The youth offending team must coordinate the provision of youth justice services in the area and carry out the functions assigned to them in the authority’s youth justice plan.  The plan should provide the detailed basis on which the services are to be provided and the team is to operate. 
33.	Pausing there for a moment, it seems to me that this statutory framework, based as it is on the aim of preventing crime by children and young persons, ought to provide a means by which the relevant agencies can consult and cooperate over the handling of a child who, whether as the result of intellectual disabilities or misconduct or both is getting into trouble, so as to tackle those problems, if possible, without resorting to criminal proceedings.    
34.	Section 5 of the Children and Young Persons Act 1969 as amended imposes a duty on any person who decides to lay an information in respect of an offence in a case where he has reason to believe that the alleged offender is a young person (including a child) to give notice to the appropriate local authority.  Section 9 of that Act requires a local authority who receives notice that such proceedings are being brought to investigate and to make available to the court such information about the home surroundings, school record, health and character of the young person as appears to the authority likely to assist the court.  
35.	Pausing again, it seems to me that these provisions, read together with the provisions I have previously cited, offer an opportunity for the relevant authorities to consult about the best way forward in respect of a child who is about to be prosecuted for an offence.  It may, particularly in the case of a young child with mental health or disability problems, be thought preferable to proceed by way of civil proceedings seeking a care or supervision order under the Children Act 1989, rather than to embark on a prosecution. 
36.	If a decision is made to prosecute a child for a criminal offence, the prosecutor and the court ought, I think, to be alive to the possibility that the child might not, for one reason or another be fit to face a criminal trial. For reasons which I shall now explain, it is my view that the prosecutor and court ought also to be alive to the possibility that the child might be doli incapax.
Doli Incapax – Does the doctrine still exist?   
37.	Before the coming into force of Section 34 of the Crime and Disorder Act 1998, there was a rebuttable presumption that a child aged 10 or over was doli incapax, in other words incapable of committing a criminal offence.   In order to rebut the presumption and secure a conviction, the prosecution had to prove not only the actus reus and mens rea of the offence but also that the child knew that what was alleged was seriously wrong; failing that the child would be acquitted.  The prosecution was not allowed to rely on the evidence of the alleged offence itself in order to rebut the presumption.  Section 34 provides:    
“The rebuttable presumption of criminal law that a child aged 10 or over is incapable of committing an offence is abolished.”
            During the proceedings below and the hearing before us, counsel assumed that the effect of section 34 was the abolition of the whole doctrine of doli incapax. The case had been argued on the footing that the case should be stayed because P could not take part in the proceedings, not that he should be acquitted because he was doli incapax.  I was concerned that it had been assumed that the defence of doli incapax had been completely abolished.  Following that hearing, my own researches revealed that the effect of section 34 has been the subject of some academic argument: see Smith and Hogan 11th edition at page 296 and the references there cited.  Is the effect to abolish the whole doctrine of doli incapax so that children are to be treated as adults?  Or is the effect only to abolish the presumption so that the doctrine remains that a child is not guilty of the offence if s/he did not know that what is alleged was seriously wrong? 
38.	The academic dispute lay between, on the one hand, Professor Nigel Walker in ‘The End of an Old Song’ [1999] NLJ 64 and on the other, Loraine Gelsthorpe in ‘Much Ado about Nothing – a critical comment on key provisions relating to children in the Crime and Disorder Act 1998’ [1999] CFLQ 209 and Julia Fionda in ‘New Labour, Old Hat: Youth Justice and the Crime and Disorder Act 1998’ [1999] Crim LR 36.  Gelsthorpe and Fionda took the view that the effect of section 34 was to abolish the defence of doli incapax altogether.  They deplored this change, observing that the United Kingdom had the lowest age of criminal responsibility in Europe and that the present law failed to recognise the incapacities of childhood.  Walker took the view that it was at least arguable that section 34 did no more than to remove the presumption of doli incapax leaving the common law defence intact.  He noted that during the second reading of the bill, the Solicitor-General had said that the change would only remove the presumption and would not rule out the possibility that a child with ‘genuine learning difficulties and who is genuinely at sea on the question of right and wrong’ would be able to run doli incapax as a defence.  However, a Home Office Circular published later gave a different impression, saying that ‘children over the age of criminal responsibility (10 to 13 year olds) would be treated in the same way as other juveniles when deciding (sic) whether or not prosecution is appropriate’.  Professor Walker looked forward to judicial resolution of this dispute but, so far as I am aware, there has been no judicial decision on the point.  
39.	I decided to look into this issue not because it is essential for the disposal of this appeal but because P’s capacity in general terms does arise for decision and there is some evidence in the medical reports that he did not know right from wrong.  Also, the court has been asked to give guidance to youth courts faced with the kind of problems that have arisen here, which include the possibility that (if the defence still exists) a child might be entitled to a finding of not guilty on the grounds of doli incapax as opposed to a mere stay on the ground that he or she is not capable of full participation in the trial.  On reading the academic articles, it seemed to me that there was much to be said for the view expressed by Professor Walker.  Because the issue of doli incapax had not been ventilated at the hearing, we invited further submissions from the parties.  In the light of those, we asked the parties for further oral submissions.  We made it plain that anything we would say about doli incapax would necessarily be obiter.  Mr Hurst invited the court to express no view on the subject but to leave the matter to be determined by a court which was properly seized of the point.  Alternatively, he invited us to make what we said part of the ratio of our decision so that it would be susceptible to appeal. On the question of the effect of section 34, Mr Hurst submitted that the position was not clear but suggested that the better view was that the whole defence of doli incapax had been abolished, not merely the presumption.  He assured us that criminal practitioners generally had assumed that this was the effect of the section. That would account for the fact that the issue has not arisen for determination in the nine years since its enactment, notwithstanding the academic difference of view.  He accepted, however, that the words of the Solicitor-General were capable of being taken into account as an aid to construction whereas a Home Office circular was not.  At my invitation, he undertook to provide us with all relevant extracts from the extensive parliamentary debates on the Crime and Disorder Bill.  We are grateful for his efforts.  Mr Dorman O’Gowan agreed with Mr Hurst. He did not seek to support the suggestion, which had come from me, that section 34 might have abolished only the presumption and not the defence.    
40.	I wish to express a tentative view on this issue, even though what I say will necessarily be obiter. The point is potentially important for children accused of crime and I think it right to flag up the need for this issue to be determined by a court which is fully seized of it.  It seems to me that Professor Walker may well be right and that section 34 abolishes only the presumption of doli incapax so that the defence is still available. I say so for several reasons.  First, that seems to me to be the literal meaning of the words.  The subject of the sentence in section 34 is ‘the rebuttable presumption of criminal law’ and the verb ‘is abolished’ can only apply to the subject. If so, it must be the presumption that has been abolished.   
41.	However, grammatical construction is not the only consideration.  The provision was brought in following encouragement to do so by the House of Lords in C (a minor) v Director of Public Prosecutions [1995] 2 Cr App R 166.  In that case there was an extensive discussion of the history and effect of the rebuttable presumption of doli incapax in Lord Lowry’s speech.  The House confirmed that the doctrine was still a part of English law.  However, it is clear from Lord Lowry’s speech (with which the other members of the Judicial Committee agreed) that the perceived problem with the presumption was the difficulty the prosecution faced in rebuttal.  Four of the five members of the Judicial Committee expressed the hope that Parliament would review the operation of this aspect of the law.  From the extensive review of the history of the doctrine, it is not clear whether the defence of doli incapax ever existed separately from the rebuttable presumption which applied to it.
42.	When the Crime and Disorder Bill came before Parliament in December 1997, the second reading in the Lords was moved by Lord Williams of Mostyn. He mentioned that the Bill proposed the abolition of the presumption of doli incapax. He referred to the House of Lords recommendation that it should be reviewed ‘since it could produce inconsistent results’.  In the course of the debate, Lord Ackner, who had been a member of the judicial committee in C, explained to the House the basis of the decision in that case.  He stressed the practical difficulties which the prosecution faced in rebutting the presumption.  The debate was closed by the Solicitor-General, Lord Falconer of Thoroton.  His speech included the words cited by Professor Walker which I mentioned above.  However, it is in my view worth citing more of the passage in which he discussed the effect of what was to become section 34.  He said: 
“To turn to doli incapax, the noble Lord, Lord Henley, asked rather optimistically whether it was causing any problem at the moment.  The position in relation to doli incapax was very well described by the noble and learned Lord, Lord Ackner, during the course of his remarks.  The position is that at the moment it has to be proved that the defendant knows that what he or she is doing is wrong.  That process is being used in a manipulative way in many courts by defendants, who say, “You have to bring a teacher, a social worker or some mature adult in order to prove this”.  It leads to difficulty with the calling of witnesses; it is hoped on the part of many defendants that this will make the Crown Prosecution Service bring its proceedings to a halt; it clogs up the youth court; and it is simply designed to make the proceedings more difficult.  So the answer to the question is: yes, it is causing real difficulties.  It offends against common sense that you have to prove it.  The possibility is not ruled out, where there is a child who has genuine learning difficulties and who is genuinely at sea on the question of right and wrong, of seeking to run that as a specific defence.  All that the provision does is remove the presumption that the child is incapable of committing wrong.”
43.	In my view, that final passage helps to explain the government’s intention in introducing this provision. It seems that the government’s view was that the mischief at which the provision was aimed was the difficulty of the prosecution in having to rebut the presumption in every case.  It also appears that the government’s intention was that only the presumption would be abolished, not the underlying defence. That was to remain available in ‘genuine’ cases.  As the clause under discussion was passed into law without amendment, it would be reasonable to rely on the government’s intention as a guide to Parliament’s intention in passing the clause into law.    
44.	Matters were much less clearly expressed in the House of Commons, where there was some discussion of the provision during the Second Reading in April 1998. The Home Secretary, Mr Jack Straw, responded to a member who had expressed concern about ‘the abolition of the doli incapax rule’.  He said:  
“The concept of doli incapax was developed when the major sanction against children who offended was the death penalty.  In the days when children were hanged for stealing sheep, it was probably wise for the courts to establish clearly that offenders knew that they had committed a flagrant offence, rather than being guilty of mere naughtiness.  Now, the sanctions have changed entirely.  Lawyers acting for offenders between the ages of 10 and 13 use the presumption of doli incapax incapacity to commit evil – to run rings around the court system, and to avoid proper sanctions for young offenders.
Something else has changed since the reign of Edward III.  I think that children now understand the difference between right and wrong at an earlier age.  I believe – and I think my view is shared widely in the House – that children aged 10, 11, 12 and 13 know that when they take someone else’s property, or assault someone, they are committing an offence for which they ought to be punished. ”
45.	I would observe that that passage does not make clear the intended effect of the provision.  One sees clearly the wish of government to make it easier to bring guilty young people to justice but that could be consistent with either the abolition of the presumption or the abolition of the whole defence.  It seems also that Mr Straw was of the view that modern children have a greater knowledge of right and wrong at an earlier age than children did some hundreds of years ago. But that does not help with the issue of construction.  It appears that the Home Office issued a circular to the effect that the whole concept of doli incapax had been abolished but such a circular cannot be regarded as an aid to construction.  
46.	It appears to me that the effect of section 34 is to abolish the presumption that a child is doli incapax but not the defence itself.  Although I accept that there may not in the past have been any clear recognition that the defence existed separately from the presumption by which it was applied, it seems to me that the defence must be capable of existing without being attached to the presumption.  The two are distinct concepts.  The defence is ‘I did not know that this act was seriously wrong’.  The practical problems arose because this was presumed to apply in every case of a child of 10 but under 14 and extraneous evidence had to be called to rebut the presumption.  If the presumption is removed, I would have thought that there remains a perfectly workable defence. I stress that in making these observations, I am drawing attention to the potential strength of the argument and the need for this issue to be authoritatively determined, after full argument, in a case in which it is properly raised.          
47.	If the defence remains available, I would think that there would have to be an evidential burden on the defence to raise the issue. If that were done, where would the burden of proof lie?  And what would be the standard of proof? Mr Hurst submitted that, if the issue were to be raised by the defence, the burden should be on the defence to prove the contention on the balance of probabilities. If the issue were to be raised by the Crown, the burden would be upon it to prove the contention to the criminal standard.  He cited as authority for these propositions the passages in Archbold 2007(paragraphs 4-167, 4-171 and 4-174) which discuss the procedure to be followed in the Crown Court under sections 4 and 4A of the Criminal Procedure (Insanity) Act 1964, where the Court has to decide whether a defendant is under a disability such as would constitute a bar to his being tried.  As is plain from these passages the provisions of the 1964 Act have no application to summary proceedings.  Here again, my observations are necessarily obiter but it appears to me that, as the  defence of doli incapax would be a common law defence as opposed to a statutory one, as a matter of general principle the burden should remain on the Crown to prove that the child had the requisite understanding.  Moreover, the standard of proof should be the usual criminal standard. 
Overlapping Issues of Incapacity
48.	At least two (possibly three) different issues may arise when a youth court has to consider capacity. There is fitness to plead, ability to take part in a trial and possibly doli incapax.  The test for fitness to plead is that set out in Pritchard [1836] 7 C & P 303, namely ‘whether the accused will be able to comprehend the course of the proceedings so as to make a proper defence’.  Usually, a defendant will only be found unfit to plead when s/he has either mental illness or substantial impairment of intellectual capacity.  A child might be doli incapax without any such impairment but simply on account of immaturity or the unusual nature of his upbringing.  The test for deciding upon fitness to plead bears some resemblance to the criteria set out in SC above as those relevant to the question of whether a defendant is capable of effective participation in the trial.  The criteria are also similar, although not identical, to those set out in the West London case cited at paragraph 20 above, relating to the essential elements of a fair trial. It should be noted however, that one of the listed requirements of a fair trial is that the defendant should know that what he is alleged to have done is wrong, which is in effect the test for doli incapax.  Thus it appears to me that there is a large measure of overlap between the issues of ‘sufficient understanding of right from wrong’, ‘fitness to plead’, ‘ability to participate effectively in a trial’ and ‘the fairness of the trial’.  For that reason, my observations about the availability of the defence of doli incapax may have but little impact on the conduct of cases in future.  A child who, due to immaturity or lack of understanding, does not know that what is alleged against him is seriously wrong may well also, for the same reasons, be unable to participate effectively in a trial.  
49.	It is worth noting that some of the medical evidence put before DJ Wood in this case went to the issue of whether P knew that what was alleged against him was seriously wrong.  Much of the evidence was concerned with whether he could effectively participate in criminal proceedings.  Dr Westman expressly said that P was ‘unfit to plead’. Thus, the issues overlap in this case.
50.	It seems to me that it is unfortunate that there is no statutory procedure laid down by which the youth court should approach these overlapping ‘capacity’ issues. I think that there should be.  However, in the absence of such procedure I propose to set out what I think youth courts should do in cases of this kind.

The Procedure – Should there ever be a stay before evidence is heard? 
51.	I start from the assumption that, before criminal proceedings are commenced at all, appropriate consideration will have been given to the question of whether civil proceedings under the Children Act 1989 are more appropriate: see paragraph 35 above. But if criminal proceedings are begun and the defence raises any of the capacity issues, how should the court proceed?  There can be no doubt that, notwithstanding the fact that the youth court is a creature of statute (like any other magistrates’ court) it has an inherent jurisdiction to stay proceedings as an abuse of process at any stage.  The jurisdiction is limited to matters directly affecting the fairness of the trial of the particular defendant concerned and does not extend to the wider supervisory jurisdiction for upholding the rule of law, which is vested in the High Court:  see R v Horseferry Road Magistrates Court ex parte Bennett [1994] 1 AC 42.  However, although the jurisdiction exists, I think that it will be in only exceptional cases that it should be exercised, on the ground of one or more of the capacity issues, before any evidence is heard.    
52.	Medical evidence such as was put before DJ Wood will rarely provide the whole answer to the question of whether the child ought to be tried for a criminal offence. This is an issue which the court has to decide, not the doctors, although of course the medical evidence may be of great importance.   But, the medical evidence must almost always be set in the context of other evidence relating to the child, which may well bear upon the issues of his understanding, mental capacity and ability to participate effectively in a trial.  I have in mind for example, evidence of what the child is said to have done, how the child reacted when arrested (if he was) and how he behaved and what he said when interviewed (if he was).  Other factors may also be relevant to the decision that the court has to take.  If a trial begins, the court will wish to ensure that the child understands each stage of the process.  That may involve some direct exchanges between the district judge or chairman of the bench and the child.  The child’s responses may well assist the court in deciding on the child’s level of understanding.  Further it may become apparent from the way in which the trial is conducted that the child’s representative does or does not have adequate instructions on which to cross-examine witnesses.  The court must be willing, in an appropriate case, to disagree with and reject the medical opinion. It is the court’s opinion of the child’s level of understanding which must determine whether a criminal trial proceeds.    
53.	Accordingly, it is my view that, in most cases, the medical evidence should be considered as part of the evidence in the case and not as the sole evidence on a freestanding application.  Although the medical evidence might on its own appear quite strong, when other matters are considered the court might conclude that the defendant’s understanding and ability to take part in the trial are greater than were suggested by the doctors and that, with proper assistance from his legal adviser and suitable adjustments to the procedure of the court, the trial can properly proceed to a conclusion. 
54.	As was pointed out in the West London case, the court has a duty to keep under continuing review the question of whether the criminal trial ought to continue. If at any stage the court concludes that the child is unable to participate effectively in the trial, it may decide to call a halt. However, the court may consider that it is in the interests of the child that the trial should continue.  If the prosecution evidence is weak, there may be no case to answer.  In the light of the views I have expressed in this judgment about the potential availability of the defence of doli incapax, it may be that the defendant’s representative will invite the court to acquit on the ground that the child did not know that what he had done was seriously wrong.     
55.	If the court decides that it should call a halt to the criminal trial on the ground that the child cannot take an effective part in the proceedings, it should then consider whether to switch to a consideration of whether the child has done the acts alleged (the fact-finding process), under the procedure referred to in the Barking case.  It is clear since Re H (see above) that the fact that a child cannot take an effective part in the fact-finding process does not infringe his  Article 6 rights.  That process is part of the protective jurisdiction contemplated by the MHA 1983 and the child’s Article 6 rights are not even engaged.  
56.	The decision as to whether or not to switch to fact-finding is one for the discretion of the court.  The court will wish to consider the possibility that (either on the basis of existing medical evidence or further medical evidence) it might be appropriate to make a hospital order.  If that possibility exists, the court should usually find the facts.  But even if a hospital order seems unlikely, there may be other advantages in continuing to complete the fact- finding process.  If the court finds that the child did do the acts alleged, it may be appropriate to alert the local authority to the position with a view to consideration of care proceedings.  Although the youth court’s findings may not be binding in the context of care proceedings, the fact that those findings have been made might result in the simplification of care proceedings.  I consider that proceedings should be stayed as an abuse of process before fact- finding only if no useful purpose at all could be served by finding the facts.  
57.	If the court decides to find the facts and finds that the defendant did the acts alleged, it would then consider whether to seek further medical evidence with a view to making an order under the MHA 1983.  If the court finds that the defendant did not do the acts alleged, the proceedings would be brought to an end by a finding of not guilty.  
58.	Mr Dorman O’Gowan for P submitted that there will be a small residuum of cases in which it is clear, before any evidence is called, that the defendant will not be able to participate effectively in a trial.  In those circumstances it would be right to stay the proceedings at the outset.  I would accept that if the child is so severely impaired that he clearly cannot participate in the trial and if it is clear that there would be no point in finding the facts with a view to making an order under the MHA 1983, there would seem to be little purpose in proceeding. But if there does remain a defence of doli incapax the selfsame reports which reveal incapacity to take part in the trial might well also contain evidence on which to base that defence. Ought not the defendant to have the chance of an acquittal rather than a stay?  If I am wrong about the availability of that defence, it would in my view be right to stay proceedings at the outset if the child was clearly so severely impaired as to be unable to participate in the trial and where there is no useful purpose in finding the facts.  Thus the residuum of cases which should be stayed at the outset will in any event be very small. I would add that, if proper consultation has taken place before the prosecution is instituted, very few such cases should ever reach the youth court.   

The Present Case
59.	I return to the facts of the instant case. The medical evidence put before DJ Wood at the outset was strong and not contested.  It suggested that P was unfit to plead, unable to participate effectively in a trial and doli incapax.  I can understand why the judge decided to stay the proceedings at that stage.  He was following what Judge Bryant had done in the previous year and there had been no apparent change in P’s condition.  No one suggested to him that doli incapax might be an available defence.  However, I do not think that the district judge gave proper consideration to the question of whether he should defer his decision and to allow the trial to commence.  I note that when concluding that the application for a stay was not premature, he did not give reasons. He does not appear to have considered the possibility that the medical evidence might appear in a different light if and when the trial progressed. He does not appear to have considered the possibility of a finding of no case to answer (let alone a finding of doli incapax).  It may be that, if he had considered those matters, he would still have decided to stay the proceedings before hearing evidence; plainly he thought that the medical evidence was exceptionally strong.  Had he considered the matters to which we have referred and still decided to stay the proceedings when he did, I could not have said that he was wrong to do so.  As it is, he does not appear to have considered these matters and for that reason I conclude that his decision was flawed.  
60.	DJ Wood asked this court to say whether he was in any way bound by the decision of HH Judge Bryant made in the Crown Court in 2005.  The answer to that is in my view clear; he was not.  Questions about a child’s capacity are essentially of fact, to be determined on the basis of all the information available about the child at the time of the decision. A child in early adolescence might well develop significantly over a relatively short period of time.  It follows that just because the child is agreed to be unfit to plead or unable to take part in a trial on one occasion does not mean that he will still be unfit or unable on another. However, where, as here, the medical evidence suggested that P’s condition had not changed in the last 12 months, the decision of Judge Bryant (and the fact that the prosecution had agreed with that decision) were relevant matters for DJ Wood to consider.  However, they were not determinative and in no sense was Judge Bryant’s decision binding.  
61.	In the course of this judgment, I have answered all DJ Wood’s questions.  However, for the sake of clarity, I repeat the answers:  
(i)	The fact that a court of ‘higher authority’ has previously held that a person is unfit to plead does not make it an abuse of process to try that person for subsequent criminal acts.  The issue of the child’s ability to participate effectively must be decided afresh: see paragraph 60.    
(ii)	Where the court decides to proceed to decide whether the person did the acts alleged, the proceedings are not a criminal trial: see paragraph 54 above. 
(iii)	The court may consider whether to proceed to decide the facts at any stage. It may decide to do so before hearing any evidence or it may stop the criminal procedure and switch to the fact-finding procedure at any stage: see paragraph 53 above.  
(iv)	The DJ should not have stayed the proceedings at the outset as he did without considering the alternative of allowing the trial to proceed while keeping P’s situation under constant review.   
(v)	If the court proceeds with fact-finding only, the fact that the defendant does not or cannot take any part in the proceedings does not render them unfair or in any way improper; the defendant’s Article 6 rights are not engaged by that process: see paragraph 54 above.  
62.	For the reasons I have given, I conclude that the district judge erred in law and the appeal must therefore be allowed. However, I do not think that it would be appropriate for the matter to be remitted to the youth court.  It is now a year since the relevant events occurred.  Since that time, care proceedings have been commenced and P’s problems are, I trust, being addressed in a different way.  Accordingly, I would make no order other than to allow the appeal. The stay will remain in place.         
Mr Justice Gross :

63.	I respectfully agree with Smith LJ as to the disposal of the instant case. I further entirely agree that it is for the Court on all the evidence – not only on the medical evidence – to decide issues such as those which have arisen here. Indeed, in my view, there are likely to be occasions when the facts of the incident invite a healthy and robust scepticism to suggestions that a young defendant is unable to plead or to participate effectively in a trial. 
64.	In the event, I add a few words of my own only on the question of doli incapax. For my part, again respectfully, I think that Smith LJ has most helpfully flagged the need to examine whether s.34 of the Crime and Disorder Act 1998 abolished (i) only the rebuttable presumption of doli incapax or (ii) the entire doctrine.  But beyond that, upon reflection, I have been persuaded by counsel that we should not go, in a case where the point has not been fully argued, still less arisen for decision.  While I acknowledge the force and attraction of the views expressed, necessarily obiter, by Smith LJ, I am conversely troubled that, hitherto at least, the presumption and the doctrine have stood together and by the possible ramifications of a defence of doli incapax existing separately from the presumption in this day and age. There are other matters such as the burden and standard of proof which, to my mind, require rather more full examination than has been possible here.  I accordingly express no view, one way or the other, on the question of doli incapax, save to underline the importance of the point and the need for its resolution in due course.