The Gazette 1994

GAZETTE

APRIL 1994

preserving order and seizure of intoxicating liquor or any disposable container or other article which could be used to cause injury together with certain powers to search a person going to an event (liability on summary conviction to a fine not exceeding £500); • prohibition of advertising of brothels and prostitution (liability on summary conviction to a fine not exceeding £1,000 and on conviction on indictment to a fine not exceeding £ 1 0 , 0 0 0 ); • powers of arrest of the Garda Síochána without a warrant, powers to demand the name and address of any person whom the member suspects with reasonable cause has committed or whom the member finds committing such an offence (liability on summary conviction of a fine not exceeding £500). The Queen's Bench Divisional Court held in the case of C. (a Minor) v Director of Public Prosecutions (Mann LJ and Laws J, The Times Law Report, March 30, 1994) the rebuttable presumption that a minor between the ages of 10 and 14 was incapable of committing a crime no longer existed in English law. The court so held in dismissing an appeal by C, a minor, by way of case stated against his conviction for interfering with a motorcycle with the intention to commit theft. Mann LJ, giving the judgment of the court, said that the appellant at the age of 12 was presumed to be doli incapax (incapable of committing a crime) until that presumption was rebutted by positive proof adduced by the prosecution that in fact he knew what he did was seriously wrong. The justices had found that he had known that what he had done was seriously wrong. The damage to the motorcycle had been substantial and the appellant and his accomplice had run from the police. The judge stated that whatever had been the position in an earlier age Doli Incapax: A Disservice to the Law?

when there was no system of universal compulsory education and when I children did not grow up as quickly as I they did nowadays, the presumption at the present time was a serious disservice to the law. Mann LJ considered that the presumption meant that a child over 10 who committed an act of obvious dishonesty or even grave violence was to be acquitted unless the prosecution specifically proved by discrete evidence that he understood the obliquity of what he was doing. Such an approach was unreal and contrary to common sense. The court considered that aside from anything else, there would be cases where evidence of the kind required j could not be obtained but, quite apart from pragmatic considerations, the presumption was in principle objectionable. The court considered that it was not part of the general law that it should be proved that a defendant appreciated that his act was seriously wrong; that additional requirement where the presumption applied was out of step with the general law. The requirement was, furthermore, according to the court, conceptionally obscure. The rule was also divisive because it attached criminal consequences to the acts of children coming from what used to be called "good homes" more readily than to the acts of others. It was perverse because it tended to absolve from criminal responsibility the very children most likely to commit criminal acts. It was not surprising that the presumption took root in an era when the criminal law was altogether more draconian, but the philosophy of criminal punishment had obviously changed out of all recognition since those days. The court stated that the presumption had no utility whatever in the present era and ought to go. The question was whether the court had authority to abolish the presumption. Several arguments were considered.

standing that it should only be changed by Parliament or at least a decision by the House of Lords. The court considered that antiquity of itself conferred no virtue upon the legal status quo. The common law was not a system of rigid rules but of principles whose application might alter over time and should be renewed by succeeding generations of judges. In the present case, the court considered the conditions under which the presumption was developed in the earlier law now had no | application. It had also been argued that the court was bound by the doctrine of I precedent to adhere to the presumption. The court considered that the rules of stare decisis provided a crucial counterpoint to the law's capacity for change; apparently established principles were not to be j altered save through the measured deliberation of a hierarchical system. I The court opined that although first i instance courts did not, on the whole, effect root and branch changes to i legal principles, the Divisional Court was in a peculiar position being a first instance court but also an appellate court for cases like the j present; and in such cases there was | no appeal from its decision save | to the House of Lords. The court considered that it was entitled to depart from the premise which lay behind certain decisions of the Court | of Appeal. To do so did not involve any departure from any adjudication which that court was required to make upon an issue in dispute before it. j Accordingly, in the circumstances, the ! presumption relied upon by the appellant was no longer part of the law of England and the appeal therefore was dismissed. The issue of "mischievous discretion" was considered in the Irish cases of Green v Cavan County Council, [1959] IR Jur. Rep. 75 and Monagle v. Donegal County Council [1961] IR j Jur Rep. 37. It will be interesting to observe how long the principle of doli incapax survives in Ireland at least in relation to children between

1 It had been argued that the presumption was of such long

i 12 and 14.

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