Analysis of the Abolition of Doli Incapax - Essay Example

?Analysis of the Abolition of Doli Incapax In Europe, the countries with the lowest ages at which children can be deemed criminally responsible for their actions are England and Wales. In England, the law that prevented children under a certain age from being criminally responsible for their actions was called Doli Incapax. however, this law was abolished in 1988 when the rebuttable presumption of Doli Incapax for minors between the ages of 10 and 14 was nullified by section 34 of the Crime and Disorder Act 1998 (CDA 1988). The presumption of Doli Incapax was that children below a certain age are incapable of guilt since they do not understand he implications and consequences of their actions, even if criminal in nature. After the abolition of Doli Incapax, there have been calls for England to increase the age of criminal responsibility for children. The abolition of the presumption of Doli Incapax effectively means that children between the ages of 10 and 14 can be taken to court, charged and found to have criminal responsibility (Gavadino, 1997). More recently, there have been hopes that CDA 98 abolished only the presumption of Doli Incapax but not the whole doctrine of the law. This came up in DPP v P (2007), where the question whether CDA abolished the underlying doctrine of Doli Incapax or the presumption. However, this hope was later reduced by the Court of Appeal, who, in R v T (2008), held that CDA 1998 abolished the whole doctrine of Doli Incapax. It should be noted that England lags behind all other European countries at the age set for acceptance of criminal responsibility. In other European countries, despite the lack of a common age for criminal responsibility, all the other countries still have a higher age than in England. According to the Council of Europe’s Commission for human Rights, most of the European countries have a criminal responsibility age of between twelve years and sixteen of fifteen years. The low age of criminal responsibility in England does not also prevent the welfare approach to children over the age of 10 years. In this case, there have been myriad concerns that the abolition of the minimum age for Doli Incapax in England has given rise to more children being detained for small crimes and for longer periods than before the presumption was abolished. The Council of Europe for Human Rights also notes that if the presumption or defense of Doli Incapax were recognized in England, there would be more protection of children from small criminal actions and aligns the law in England with the laws in other countries. The efforts of the decision in DPP v P (2007) in trying to uphold the presumption of Doli Incapax were not enough to prove the existence of the presumption (Stone, 2010). Therefore, the subsequent decision of the Court of Appeal in the case of R v T was expected to a certain extent. Because of the defense of Doli Incapax being effectively removed, this analysis will focus on whether the presumption or defense of Doli Incapax should have been abolished initially, and if the government should be pressured by other groups to reinstate the law. This is done by tracing the concept of Doli Incapax, and the events that led to its abolition. The special treatment of children under law is not a new concept. In England, this defense can be traced as far back as the reign of King Ine in 688 AD through to the reign of other Kings between then and 925 Ad. For example, in 925 Ad and thereabouts, only children over the age of 12 would be prosecuted if the value of the stolen items were more than 8 pence. This indicates that the presumption of Doli Incapax existed from this period and lasted to the current abolition of the defense and presumption. However, it should be noted that in England at this time, there were distinct age levels at which the presumption could be upheld. Even though these age level structures could not be defined, it should be noted that there was a minimum age at which a child could absolutely not be prosecuted for crimes, where the defense was that the child could not differentiate guilt and innocence, or right from wrong. There was also an age where the presumption of Doli Incapax could effectively be nullified. These two age structures were distinct from around 1327 to 1377, but the specific ages that divided the two age groups could not be conclusively defined. The minimum age for the presumption of Doli Incapax was finally set at seven years old, and remained so until the twentieth century, where the Children and Young Persons Act 1933 raised it to eight years. This was later revised by an amendment to the act that rose the age to the current level of ten years old.in 1963. In 1968, a recommendation was made in a White Paper that made a provision for the minimum age at which a child could be prosecuted to be raised to 12 or 14 years, a recommendation that came into effect in 1969. However, the government change from Labor to Conservative before the recommendation could be implemented meant that the section never came into effect. Therefore, the section was repelled. Conversely, the maximum age of conditional responsibility was never modified from the age it was set until its abolition in the last amendment of 1988. From an analysis of the previous implication of the law, it should be noted that the reason for the first law was for retribution and punishment, and not protection of children therefore, the upholding of a law that sought to punish the young in the same way as adults has been continually criticized (Richards, 1997). After the Second World War, a model for the protection of juvenile offenders was internationally developed, and the previous presumption started moving from punishment to protection of juveniles. This means that the presumption was now viewed as a means of protecting the underage from liability from criminal action (except in cases of murder). A recommendation was made by the Ingelby Committee in 1960 to set aside the presumption and raise the age of criminal responsibility to twelve or fourteen years. This recommendation was meant to rid the criminal justice system from young offenders. In the 1980s and 1990s, the justice model was restored in England, and as a result, the original purpose of Doli Incapax was restored, and the presumption started being viewed as a means that prevented appropriate justice for some age groups. For example, some courts started criticizing the presumption, like in JBH and JH v O’Connell, where the judge stated that in the age of universal education from the age of five, it was ridiculous to have a law that defended mischief. A judge in A v DPP also stated that the presumption and defense of Doli Incapax led to the achievement of results that defeated common sense. However, the mounting criticism had no effect on the then Conservative government, which stated in a white paper that it did not intend to abolish the presumption and/or defense of Doli Incapax. The then government stated that the presumption was a means for the protection of a child’s growing mind. However, an increase in youth criminal activities increased the criticisms for the law and calls for a tougher stance on young offenders. As a result, divisional courts took it upon themselves to declare the presumption of Doli Incapax as an invalid law, for example, by C v DPP in 1995. However, this decision was appealed, and the House of Lords repelled the decision, perhaps out of the agreement that the decision to abolish the law should come from parliament and not a court (Wortley, 2009). One of the judges expressly stated that the decision to abolish Doli Incapax was a case for parliament, and not a decision to be made by the courts. Based on these factors and the political background in 1997, each party tried to prove that it had a tougher stance on criminal activities. The labor party then released a Paper that proposed to change the presumption of Doli Incapax by either abolishing or modifying its content. In 1988, the CDA 1988 was passed, which abolished the presumption of Doli Incapax and indicated that, from the age of ten, a child is presumed fully responsible for any criminal actions committed (Muncie, 2004). After the abolition of Doli Incapax, there has been increased criticism of CDA 1998, and the calls from other governments and human rights groups have been increasing. The law was abolished in both England and Wales, and from a comparison with other countries, the age of criminal responsibility is deemed too low (Arthur, 2010). For example, in 2001, a group of human rights activists called on the Labor Government to review the current age set after the abolition of Doli Incapax, stating that the age was too low to allow for the defense of juvenile offenders. The Criminal Courts Review Report (2001) also stated that the age for criminal responsibility should be reviewed to match that of other countries in the European block. Other criticism include the argument by NACRO that the age of criminal responsibility should be raised and concerns expressed by some groups that young children are increasingly being held for longer periods since the law was abolished. The reports called from a paradigm shift in the handling of young offenders, stating, in part, that the age of criminal responsibility should be raised to, at least, fourteen years of age. These criticisms have also been voiced by the international community, where the countries argue that England should strive to increase the age of criminal responsibility in children. For example, the United Nations Convention on the Rights of Children does not specify a minimum age at which children can be held criminally responsible for actions that are deemed an infringement of common law. However, another United Nations Article, the UN Standard Minimum Rules for the Administration of Juvenile Justice states in part that the minimum age for bearing criminal responsibility should not be set at an age deemed unreasonably low. The article states that the setting of the age should take into consideration the emotional, mental and intellectual capacity of juveniles that allows them to distinguish right from wrong. The United Nations Committee on the administration of Juvenile Justice expressed concern at the minimum age that was set in England and Wales, the abolition of Doli Incapax and the subsequent effects on the juvenile criminal justice system that the abolition of the presumption caused. This was partly caused by the increasing number of younger offenders who were detained for longer periods and for lesser offences after the abolition of the presumption of Doli Incapax. Subsequently, the Committee urged the English Parliament to revise the enactment of CDA 1998 that effectively destroyed the presumption of Doli Incapax (Ashworth, 2009). Other criticism is also noted from the European Social Rights Committee, which stated that England violated an article in the European Social Charter (Bandalli, 1998). The article of the Charter that England was deemed to have violated was the rights of mothers and children to economic and social and economic protection, where the two groups should be protected from unfair legal actions. The Committee stated that the age of criminal responsibility set by England is too low for children, since the children would be detained or punished for actions whose responsibilities they do not even understand. This means that the implications of the wrongfulness of the actions committed by the juveniles would not be understood, since their mental acuity is not fully developed. The Committee noted that the number of children being detained had increased drastically in England, and the children were being treated in the same capacity as full adults. The Committee also noted that, after the abolition of the presumption of Doli Incapax in England, the use of detainment was not being used as a means of last resort, and the children were detained for small offences. Concern was also expressed by Europe’s Human Rights Commissioner, who stated that the low age of criminal responsibility in England was hard to accept, given the difference in age between an adult and a young child of less than 14 years (Bennion, 2009). Despite the fact that the European Convention on Human rights did not place an age limit on the age that a child could be held criminally responsible for actions, the commission stated that the age set in England was a worrying trend, and that the age should be raised to conform with other European countries. The year after CDA 1998 was passed, the commission stated that the minimum age for criminal responsibility should be raised all across Europe, so that England would be forced to raises its age limit. In this case, England would be forced to reintroduce the protection for children by either reintroducing the rebuttable presumption of Doli Incapax or stating a defense of Doli Incapax for children between the ages of ten and fourteen years of age. In this context, the next analysis will focus on the argument whether the defense of Doli Incapax still exists after the passing of CDA 1998. As already stated, there was a lot of dissatisfaction when CDA 1998 was passed, specifically when it abolished the rebuttable presumption of Doli Incapax (Gibbs, 2010). The main area of concern was that the act introduced a lower age of criminal responsibility for children. And in this case, the argument was whether the introduction of the act removed the presumption of Doli Incapax but did not abolish the defense underlying the principle. This argument was introduced in courts in the case of DPP v P (2007), where the above mentioned fact was questioned. The case mentioned highlight the wrongness of English law in changing the status of an individual who just attained the age of ten from being protected by the law to being criminally responsibility for any and all actions committed. According to Telford (2007), the main fact about the case was that a child who had been diagnosed with ADHD and had an IQ that placed him in the lowest group of intelligence in the population. The boy was analyzed by a clinical psychiatrist and found to have a lot of difficulty on understanding the proceedings in the court, much less being able to understand the evidenced brought against him in the case. The clinical psychiatrist determined that the boy would not be able to determine the difference between action that were merely jokes and those that would cause a serious breach of rules in the society. Other psychiatrists agreed that that the child would not be able to give evidence in the case, listen to the evidence against him, and give opinions on the case. In this case, the defense assumed that CDA 1988 had abolished the rebuttable presumption of Doli Incapax, but that the defense associated with Doli Incapax still remained in force. The defense decided to proceed with an abuse of process defense for the child, since the introduction of CDA 1988 provided no other alternative for the protection of the child (Gillen, 2007). The judge was concerned with the defense’s assumption that the introduction of CDA 1988 abolished the rebuttable presumption of Doli Incapax but that the underlying defense of the law still remained in force, and she decided to research further into the issue. The judge found that, when CDA 1988 was introduced, there was argument over the wording, where the law stated that, “The rebuttable presumption of criminal law that a child aged 10 or over is incapable of committing an offence is abolished” (S43). This means that the introduction of the law removed the rebuttable presumption of Doli Incapax but kept the underlying defense intact. In this case, the judge reintroduced the argument previously made by another judge in 1999 that the wording of section 34 of CDA 1998 was ambiguous and abolished only the presumption of Doli Incapax. This argument was based on the structure of the sentence of the section, which seemed to abolish the presumption of Doli Incapax but not the underlying presumption of the law. The verb in the section, “is abolished” is directly referring to the subject of the presumption, and the other subject, the defense, is not mentioned. This could mean that the section was meant to abolish the presumption of Doli Incapax and not the underlying defense of the law. In another instance, the judge mentioned that the main reason for the introduction of CDA 1998 was the urging by the judges in DPP v P for parliament to amend the working of the presumption of Doli Incapax. This is because the presumption of Doli Incapax presented prosecuting parties with problems and introduced inconsistent results in different cases. The Solicitor-General also mentioned that the possibility of a child with special disabilities could still use the defense of Doli Incapax, since the law sought to remove the presumption but not the defense of Doli Incapax. The Solicitor-General was referring to a case where a child was genuinely considered not to be able to distinguish between right and wrong actions. From the actions of parliament, the judge in DPP v P also noted that, since the clause became a law without amendment, then the government’s intention was to guide parliament in abolishing the presumption and not the underlying defense of the law. However, this argument is not supported by the government’s indications as to the whole doctrine of Doli Incapax. The approach mentioned above would have passed without scrutiny had it not been for indications as to the intentions of the government regarding the doctrine. Some time before and after the introduction of section 34 of CDA 1988, there were myriad indications that the government intended to abolish the whole doctrine of Doli Incapax, defense and presumption alike (Cipriani, 2009). The first indication is seen in a consultation paper that first proposed the amendment of the doctrine of Doli Incapax. The consultation paper mentioned that the best way to achieve this result was by completely abolishing the doctrine of Doli Incapax, and from this time, the government made clear its indications that it preferred the complete abolition of the doctrine. In this case, the government’s intentions were to pass a message that all children over the age of ten were to be responsible for their own actions. One factor that should be taken into consideration is that the consultation paper that proposed the abolition of Doli Incapax mentioned that after the doctrine had been passed into law, a child could be convicted without proof beyond reasonable doubt of a crime committed, which indicates that it was still the work of the defense to prove the innocence of a child under the age of 14 (Cipriani, 2009). This includes the actions of children who are deemed mentally incapable to account for their actions. However, opponents of the notion that the defense was retained argue that this statement did not mean to retain the defense of Doli Incapax or protect children who did not understand the consequences of their actions. The opponents argue that this statement merely meant that the prosecution of a child was to follow the guidelines of normal criminal law, where an individual cannot be convicted without proof beyond reasonable doubt of their actions. According to Williams, the doctrine of Doli Incapax is completely different from the ability of an intention to connect a criminal intention with a criminal action. This means that a child has the ability to perform an action without understanding that it is wrongful or criminal, as is the case of children who fight over toys. The indication of significant mental handicap in the consultation paper also raises the indication that a situation was not foreseen where a normal child would not be able to understand the consequences of their actions. The other indication that the passing of CDA 1998 did not leave a defense for Doli Incapax is from the fact that the consultation paper considered leaving the defense of Doli Incapax intact (Williams, 1961). However, this proposition was rejected since it was feared that it would be used by every defense for a child under the age of 14, which would still bring difficulties in conviction rates for these types of offenders. In this case, it should be noted that section 34 of CDA 1998 was clearly intended to reduce the difficulties faced by prosecutors in cases involving children between the ages of 10 and 14. With the introduction of CDA 1988, it was clearly indicated that the abolition of the doctrine of Doli Incapax was meant to reduce these difficulties faced by prosecutors. This was done despite the lack of any conclusive evident that the doctrine of Doli Incapax had hindered any prosecution of children. Other indications that the defense of Doli Incapax was not retained when CDA 1988 was passed include parliamentary debates, where an amendment was introduced to reintroduce the defense of Doli Incapax in the law (Elliott, 2011). If parliament intended to retain the defense of Doli Incapax in the first instance, it would be expected that this amendment would be passed without any problems so as to confirm the law. However, the amendment failed to pass the House of Lords, a fact that clearly indicates parliament’s actions in abolishing the whole doctrine, presumption and defense together. In the second reading of the amendment, it was noted that, since the introduction of CDA 1988, matters in the prosecution had been simplified, which clearly indicates that the main intention was to ease the problems faced by prosecution by either abolishing the presumption or the whole doctrine of Doli Incapax. From the consultation paper, it should be noted that presumption that normal children could not make moral judgments is scoffed. From an analysis of the debate surrounding the abolition of Doli Incapax, it is evident that the main point of contention is the responsibility of the children versus having them take credit for criminal responsibility (Goldson, 2009). The real issue in this case is whether the children have the ability to be criminally responsible or whether the age at which they should be dealt with by the system is an issue. The system responsible for children criminals in England is a criminal system, not a welfare system, and the main issue is whether the children are mature enough to face the rigors of a fully fledged criminal system. The nature of a child’s mental development is the same in England as it is all over the world; it cannot be argued that some children are exceptional (Hollingsworth, 2007). In this case, it would be preferable to reintroduce the doctrine of Doli Incapax to act as a rebuttable presumption as opposed to reintroducing it as a defense. Some parties might argue that us is viable to introduce the doctrine as a defense for those children over the age of fourteen but younger than eighteen. This is because children not yet eighteen could still lack the mental acuity to possess criminal responsibility. In this case, the recommendation by the European Commissioner would be followed to the letter. However, with the current political environment in England, this fact would clearly be fanciful. This proposition might also cause distress in some areas, since the government would deem the action as a way of backtracking on its earlier endeavor to act tough on youth crime. Most of the arguments that led to the abolition of the doctrine of Doli Incapax did not focus on the ability of the child between ten and fourteen to be mentally able to account for their actions (Lacey, 2001). Instead, the arguments focused on whether the children should or should not be held criminally responsible for their actions. According to the consultation paper, it can be seen that the main factor involved making the children take responsibility for their actions. The arguments that actually focused on the children’s mental development stated that the child develops fast, and can in fact distinguish between right and wrong actions. These arguments took the stand that since the children can make basic moral judgments; they also had the ability to make criminal judgments. However, it is obvious that even if the presumption of defense of Doli Incapax is reintroduced, there would be a need for clarity on the proof that the child is actually responsible (Keating, 2007). For the longest time, case laws have indicated that children had o be proved to have guilty knowledge over the right or wrong of the actions being committed. The view that a child should be able to distinguish between serious wrong and merely playful should be first clarified if the debate on the abolition of Doli Incapax is to be settled. In this case, a sensible requirement is that proof should be found as to whether the child knew that the acts being committed were wrong according to the standards of normal people in society. This would help in improving the perception that should be taken when finding a child criminally responsible for actions committed. After an analysis of the above factors, it is evident that the concern expressed by the international community and the various bodies over the abolition of Doli Incapax is justified. As already identified, the law in England lays children with criminal responsibility at a much lower age as compared to any other country. There are a lot of cases where the children being criminalized lack the mental prowess to take responsibility for their actions. In the case of DPP v P, the question by the judge of whether CDA 1998 abolished the presumption or defense of Doli Incapax or both of them increased the hope that in the future, this issue might be resolved. This means that, in the future, there is the hope that the courts might reintroduce the defense of Doli Incapax, since CDA 1998 did not mention its abolition. However, from the analysis of the government’s intentions, despite not abolishing the defense, it is still thought that the defense cannot be reintroduced. The government clearly indicated that it wanted to abolish the whole doctrine of Doli Incapax, and the wording of the act in abolishing only the presumption is not enough argument. Since the Court of Appeal has already confirmed that the defense of Doli Incapax does not still exist, the initiative for this action needs to be taken by parliament, much in the same way as they took responsibility for abolishing the law. From this analysis, the hope is expressed that, at some future point, the government will be inclined to reintroduce the defense or rebuttable presumption of Doli Incapax. The children mentioned in many cases are thought not have the mental acuity to be held responsible for their criminal actions, and with the criminal system in England, it is not fair to put the children in the same cadre as the adults. A practical action by the government would be to introduce the defense of Doli Incapax for children aged between ten and fourteen, if the defense can prove that the children did not understand the wrongness of the actions being committed. References Arthur, R. (2010) Young Offenders and the Law London, Routledge, pp. 43-51. Ashworth, A. (2009) ‘R v T: Children and young persons – Doli Incapax – Crime and Disorder Act 1998 s.34’ Criminal Law Review 8, 581-583 Bandalli, S. (1998) ‘Abolition of the presumption of Doli Incapax and the criminalization of children’ Howard Journal of Criminal Justice 37, 2, pp.114-23. Bennion, F. (2009) ‘Mens rea and defendants below the age of discretion’ Criminal Law Review 11, 757-770. Cavadino, P. (1997) ‘Goodbye Doli, Must We Leave You? Child and Family Law Quarterly 9, 2, 165-171. Cipriani, D. (2009) Children’s rights and the minimum age of criminal responsibility Ashgate. Crofts, T. 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(2009) ‘House of Lords: No defense of Doli Incapax’ Journal of Criminal Law 73, 305 Read More