JTB, R v

Facts

JTB was a boy aged twelve who was charged with child sex offences under the Sexual Offences Act 2003, committed against a child under thirteen. He relied on the argument that, as a child between ten and fourteen, he was presumed incapable of committing crime unless the prosecution proved he knew that his acts were seriously wrong.

Issue

Whether s 34 of the Crime and Disorder Act 1998, which abolishes the rebuttable presumption that a child aged ten or over is incapable of committing an offence, also abolished the substantive defence of doli incapax, which would require the prosecution to prove that the child knew the act was seriously wrong.

Held

The defence of doli incapax was abolished. A child aged ten or over can be convicted without proof that he knew that the act was seriously wrong, and the prosecution of the defendant was not barred on that ground.

Ratio

• Section 34 of the Crime and Disorder Act 1998 abolished the presumption of doli incapax and with it the substantive rule that a child aged ten to thirteen is not criminally responsible unless the prosecution proves he knew his act was seriously wrong.

The judgments

Key reasoning

• The common law rule about children between ten and fourteen was expressed as a rebuttable presumption, and its operation was to require the prosecution to prove the child understood the wrongness of the act.
• Parliament enacted s 34 following criticism of the rule in C v DPP [1996] AC 1, and the natural reading of the section is that it removed the rule, not merely the evidential presumption.
• Reading the section as abolishing only the presumption while leaving a defence in place would defeat the evident purpose of the legislation.

Where it fits in the module

Topic 8 on incapacity and general defences includes the rules about the age at which and the circumstances in which a person is held capable of criminal responsibility. The case concludes the long history of doli incapax and leaves the age of ten as the threshold. It brings out the contrast between the low age of responsibility in England and Wales and the practice in other jurisdictions, and the question whether the law adequately recognises the diminished understanding of children.

Criticisms

• Removing the requirement to prove understanding exposes children of ten and above to criminal liability even where they do not appreciate the wrongfulness of what they did, which conflicts with the principle that fault requires capacity.
• The statutory words refer only to the presumption, and the reading adopted attributes to Parliament an intention to abolish more than it expressly stated.
• The very low age of criminal responsibility is hard to justify on principle, and the removal of a safeguard means the system relies on prosecutorial discretion to protect young children.