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Critically examine the abolition of doli incapax - Essay Example

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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…
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Download file to see previous pages 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 ...Download file to see next pagesRead More
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