Doli Incapax – Strict requirements of the test – R v PF [2017] EWCA Crim 983

This case revisited the strange circumstances that cannot now arise in fresh offences but still applies sot qualifying historic cases relating to sexual offences said to have been occurred by someone aged 10-14 who does not have the required criminal culpability .

In order for the case to proceed successfully the Crown must establish The requirements for the rebuttal of the common law presumption of doli incapax were summarised in R v M (D) [2016] EWCA Crim 674 at [16] (see further below) as follows: “The presumption was rebutted only if the prosecution proved beyond reasonable doubt both (i) that the child had caused an actus reus with mens rea, in other words committed the crime, and (ii) he or she also knew that the particular conduct was not merely naughty or mischievous but seriously wrong.”

The rule was abolished as from 30 September 1998 by s 34 of the Crime and Disorder Act 1998 but that provision did not have retrospective effect.

To meet the test the Crown had to show by way of distinct evidence that an accused knew his/her conduct was seriously wrong .

The issued was revisited in the case of R v M (D)[2016] EWCA Crim 674; [2016] 2 Cr App R 20 . Here the Court concluded that

“27 The direction was in our view deficient in one material respect. The presumption of incapacity could only be rebutted by the prosecution by clear positive evidence, not consisting merely of acts amounting to the offence itself, but that the defendant knew that his acts were seriously wrong as distinct from mere naughtiness or childish mischief.”



Categories: Caselaw, Criminal Appeals

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