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You are here: BAILII >> Databases >> United Kingdom Journals >> Walsh, 'Irrational Presumptions of Rationality and Comprehension' URL: http://www.bailii.org/uk/other/journals/WebJCLI/1998/issue3/walsh3.html Cite as: Walsh, 'Irrational Presumptions of Rationality and Comprehension' |
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Lecturer in Law, University of Leicester
Copyright © 1998 Charlotte Walsh.
First Published in Web Journal of Current Legal Issues in association with
Blackstone Press Ltd.
This paper discusses Clauses 31 and 32 of the Crime and Disorder Bill. Both of these Clauses will affect the treatment of children in the criminal justice system, aged from ten to thirteen years of age. Clause 31 is designed to abolish the presumption of doli incapax; Clause 32 is designed to lift the restrictions on drawing inferences from the silence in court of defendants aged from ten to thirteen years. The reasons offered by the Labour Government in support of these changes are considered: it is submitted that their reasoning is presumptuous and unsatisfactory. It is further submitted that the implementation of these provisions will lead to an extremely vulnerable group being treated unjustly.
This article is primarily a consideration of clause 31 of the Labour Government's Crime and Disorder Bill; a clause which is designed to abolish the rebuttable presumption of doli incapax, previously applicable to children in the criminal justice system of ten to thirteen years of age. Attention is also given to clause 32 of the same Bill. Clause 32 is designed to amend section 35 of the Criminal Justice and Public Order Act 1994, thereby enabling inferences of guilt to be drawn if defendants of ten to thirteen years of age fail to give evidence or refuse, without good cause, to answer questions during trial. The Government's rationale for introducing these fundamental changes to the youth justice system are discussed below: it is submitted that their reasoning is unsubstantiated, ill-conceived and, most importantly, morally questionable. In fact, such changes will render the youth justice system of England and Wales more unforgiving of children in this age range than practically every other country in Western Europe.
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Children below the age of ten are not deemed criminally responsible in the legal system of England and Wales (Children and Young Persons Act 1933 s. 50 as amended by CYPA 1963 s. 16(1)). The rebuttable presumption of doli incapax applies to children in criminal proceedings of ten to thirteen years of age: children in this age range are presumed not to know the difference between right and wrong and, therefore, to be incapable of committing a crime because they lack the necessary criminal intent. This is an additional requirement to proving mens rea. The presumption can be rebutted if the prosecution can show, beyond reasonable doubt, that the child concerned had `mischievous discretion'; that is, that they were aware that their actions were `seriously wrong' (as opposed to merely naughty or mischievous).
The net result of the Labour Government's decision to dispose with this presumption is straightforward: once a child reaches the age of ten they will be presumed by the courts to have a capacity to reason which can be fully equated with that of an adult. It will not be until the sentencing stage that their tender years are taken into account. The transitional period previously created by the existence of the rebuttable presumption of doli incapax between lack of criminal responsibility (under ten years of age) to presumed responsibility for one's actions (fourteen years of age and over) will be disposed of. In effect, this change marks a refusal by New Labour to give children aged from ten to thirteen years of age the benefit of the doubt.
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Before discussing the specific reasons given by the Labour Party for their abolition of the presumption of doli incapax, it is worthwhile to briefly consider the recent history of the doctrine. Although the presumption of doli incapax has been in existence since the 14th Century, the desirability of its continuance has been questioned on a number of occasions in recent years. In 1985 the Law Commission excluded the presumption from their Draft Criminal Code (Law Com 1985, paras. 11.21-11.23). However, in the revised 1989 version of the Code the presumption was included: it was felt that the presumption should remain unless its abolition were to be accompanied by a raising of the age of criminal responsibility (Law Com 1989, para. 10.28). Likewise, the previous Conservative Government recommended that the presumption of doli incapax be maintained when they gave it consideration in their 1990 White Paper, `Crime, Justice & Protecting the Public' (White Paper 1990):
"The Government does not intend to change these arrangements which make proper allowance for the fact that children's understanding, knowledge and ability to reason are still developing." (White Paper 1990, para. 8.4)
Despite this, there was a brief period in the 1990s when the presumption was disposed with. This was due to the decision of Mr Justice Laws of the Divisional Court, in the 1994 case of C (A Minor) v. Director of Public Prosecutions [1994] 3 WLR 888. Mr Justice Laws was of the opinion that `this presumption at the present time is a serious disservice to our law' (p. 894), and so, justifying his actions with reference to the evolutionary qualities of the common law, he ruled that it was `no longer a part of the law of England' (p. 898). This decision was overruled on appeal to the House of Lords, C (A Minor v. DPP [1995] 2 WLR 383, where it was held that `doli incapax was a rule of the common law that could only be abrogated by statute' (p. 383). Thus, the presumption of doli incapax was reinstated.
The House of Lords ruling in the above case is important for two reasons: first, the Law Lords recommended parliamentary consideration of the doctrine of doli incapax (p. 403); second, the well-informed and carefully considered review of the presumption by Lord Lowry can be used to criticise a number of the justifications offered by the current Government for their abolition of the doctrine of doli incapax. It is submitted that Lord Lowry's recommendations were not wholly taken into account; namely, that,
"There is a need to study other systems ... Whatever change is made, it should come only after collating and considering the evidence and after taking account of the effect which a change would have on the whole law relating to children's anti-social behaviour." (p. 403)
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The abolition of doli incapax is of course just one aspect of the current Government's radical reorganisation of the youth justice system. The crux of their overall approach is summed up in their slogan `No More Excuses'. Evidently, the assumption that a ten year old does not have the same capacity to reason as an adult is a prime example of the sort of excuse which Labour has vowed to remove from the system (White Paper 1997).
A more specific explanation of why the Government has seen fit to abolish the presumption of doli incapax was provided in the Home Office consultation paper, `Tackling Youth Crime' (Consultation Paper 1997, pp. 6-7). This paper formed the basis of this aspect of the Government's White Paper, `No More Excuses' (White Paper 1997), which in turn forms the basis of the Crime and Disorder Bill.
The Government have divided their reasons for abolishing the presumption of doli incapax into three categories, namely, `that it is archaic, that it is illogical and that it is unfair in practice' (Consultation Paper 1997, p. 6). This article seeks to examine the substance of these three accusations.
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"The doctrine is considered out of date in at least two main respects. First, it assumes not only that a child under 14 is less morally culpable for his or her actions than an adult, but that in general, a child under 14 cannot differentiate right from wrong. While it is true that a child's understanding, knowledge and ability to reason are still developing, the notion that the average 10-14 year old does not know right from wrong seems contrary to common sense in an age of compulsory education from the age of five, when children seem to develop faster both mentally and physically". (Consultation Paper 1997, p. 6)
The above argument can be criticised on a number of counts. In answering a similar contention arising from the judgement of the Divisional Court in C (A Minor) v DPP, Lord Lowry responded with the following:
"It is true that there is (and has been for a considerable time) compulsory education and, ... perhaps children now grow up more quickly. But better formal education and earlier sophistication do not guarantee that the child will more readily distinguish right from wrong." (p. 396)
It is also a debatable point whether being ensconced in the school system is more likely to lead to one's growing up faster than, for example, being thrust into the workplace at the age of eight (or younger) as would generally have been the case at the time when the doctrine was developed. Twentieth Century developments, both in education and in the juvenile justice system, have sought to lengthen the process of childhood, and, therefore, to make it a more fulfilling era of one's life.
Paul Cavadino (Cavadino 1997) adds further criticism of the `universal education' argument by making the valid point that,
"in view of the association between truancy and offending and the recent sharp rise in school exclusions, ... many of the children concerned have in practice failed to benefit from universal compulsory education." (Cavadino 1997, p. 167)
Moral development is a process of which education is only a part; it is a process which occurs at different stages in different children. The presumption of doli incapax accounted for this factor. If the relevant child's development had reached an appropriate stage, then the presumption could be rebutted; if not, unjustifiable culpability could be avoided. The old system took account of differences in maturity between individual children in a way in which the new system will fail to do.
"[F]ar from being an outmoded survival from an earlier era, the doli incapax rule is fully consistent with our increasing knowledge of child development and learning, which tells us that children mature and learn over differing time spans." (Cavadino 1997, p. 168)
Clearly a time period has to be placed around the acceptable leeway allowed for moral development, and, to some extent this will always be arbitrary. However, it is submitted that a system which allocates a flexible four year period during which moral culpability can be assessed is preferable to a system which assumes that by the age of ten all children have reached the same level of moral culpability as an adult.
"Second, the doctrine assumes that children under 14 need special protection from the harshness of criminal punishment. At the time the doctrine developed the need for protection was undoubted - the death penalty was available for children, for crimes less serious than murder. But the criminal law is very different and for most young offender's, the court's emphasis is as much on preventing re-offending as on punishment for the crime." (Consultation Paper 1997, p. 6)
Again, Lord Lowry himself provides us with an initial counter-argument to this second explanation the Government give for their assertion that the doctrine of doli incapax is archaic:
"[W]hile times have greatly changed since the days when children of 8 and 10 years were hanged for offences much less heinous than murder, it should be observed that the purpose and effect of the presumption is still to protect children between 10 and 14 from the full force of the criminal law." (p. 399)
The Government assert that there is no need for children to be protected from the criminal law: intervention will help rehabilitate them and therefore it is for their own good that they be deemed criminally culpable at such a young age:
"What one wants here is early intervention; not early savage punishment but early assistance. It does a child no favours to let it drift on without knowing, particularly in a modern sophisticated society, that if it commits criminal acts there will be a sanction." (Lord Williams of Moyston 1998, cols 831-841)
This assertion rings hollow on a number of counts. First, this attitude ignores the fact that, previously, once the presumption of doli incapax had been rebutted (and once it has been abolished) the possibilities for the criminal justice system to impose punitive sanctions on this age group are actually rather wide.
"[T]his welfare argument overlooks the fact that very substantial penalties are available for ten to thirteen year olds found guilty of criminal offences. The Criminal Justice and Public Order Act 1994 extended the range of offences for which children aged ten to thirteen inclusive can be sentenced to long term detention under s. 53 of the Children and Young Persons Act 1933. It also provided for a new secure training order, which is a custodial sentence for twelve to fourteen year old offenders with a minimum length of six months and a maximum of two years." (Penal Affairs Consortium 1995)
The first of the above-mentioned secure training centres was opened in April 1998. In addition, the Crime and Disorder Bill also provides for the creation of a new generic sentence, the `detention and training order', which will be available for ten to seventeen year olds. Whilst such measures may be aimed at preventing re-offending, and may include elements of rehabilitation, their primarily punitive nature cannot be ignored.
Second, the Labour Government's approach to youth justice is distinctly victim-oriented: even if rehabilitation were to result from whatever penalty is imposed on young offenders in this age group in the future, their own good is not at the forefront of New Labour's agenda. To pretend that burdening a ten year old child with a criminal record is in their own best interests is not only cynical, it is also quite simply untrue.
Thirdly, where does the Government's optimism regarding the rehabilitative properties of the criminal justice system stem from? It has certainly not been gleaned from the numerous research works into the reconviction rates of young offenders who have become embroiled in the criminal justice system, either in the past or more recently (see further for example, West 1982, Penal Affairs Consortium 1993). In fact, such studies are widely united in their conclusions that rehabilitative schemes are unlikely to have anything other than a limited effect on a convicted young offender's chances of re-offending.
Conversely, many experts in this area support the view that children should be kept out of the criminal justice system wherever possible. This belief is based not only on ethical grounds, out of adherence to the fact that children have not had the chance to develop the same moral frame of reference as adults, but (for the benefit of the Government) it is also a belief based on practicalities. Most children commit criminal offences and most children grow out of committing crime (see further, Rutherford 1992). However, one way of interfering with this natural progression is to give these children a criminal label. This is a phenomenon which has long been recognised in the formation of youth justice policies:
"Policies such as cautioning rather than prosecuting young and first offenders; `gatekeeping' policies adopted by social workers and probation officers; the development of alternative to custody strategies were based on the insights of labelling theory. At each successive stage of criminal processing, such policies aimed to minimise the consolidation of delinquent lifestyles which would be brought about by offenders becoming further enmeshed in the criminal justice system." (Hudson 1997, pp. 455 - 456)
The rebuttable presumption of doli incapax helped (though did not ensure) that children of a young age were kept out of the criminal justice process unless their involvement in it was not only fair but also necessary. If the Government feel such children need assistance in their own best interests, using the criminal courts would not appear to be the wisest option. Would it not be preferable to deal with such cases using civil measures, by referring them to the local authority who are empowered to take steps to promote a child's welfare by the Children Act 1989? (Children Act 1989 Part III, Local Authority Support for Children and Families, ss. 17-31).
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"The presumption is also criticised as illogical. For a child aged 10-14 to be convicted of an offence the prosecution must rebut the presumption by showing that the child knew that what he or she was doing was seriously wrong. In practice, the presumption can be rebutted if the prosecution produces evidence that the defendant is of normal mental development for his or her age. But the doctrine itself presumes that children of that age normally do not know right from wrong, so to rebut the presumption by proving the child's normality is logically inconsistent." (Consultation Paper 1997, p. 6)
As before, Lord Lowry provides us with an initial response to the above:
"The presumption itself is not, and never has been, completely logical; it provides a benevolent safeguard which evidence can remove." (p. 397)
Even if the Government wish to dismiss the concept of benevolence out of hand, this assertion that the presumption is illogical remains a false argument. Whilst it may be true that, in practice, evidence that the defendant is of normal mental development for his or her age is often sufficient to rebut the presumption (J.M. (A Minor) v. Runeckles (1984) 79 Cr App R 255) this is not the essence of the criteria by which the presumption of doli incapax can be rebutted. The issue is simply whether or not the child concerned knew that their actions were `seriously wrong': illogical rebuttals of the presumption in practice do not deem the concept illogical in principle. In fact, it could hardly be more straight-forward. The only problem this criticism reveals is a problem with the standard of evidence required to rebut the presumption.
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"The doctrine is also said to be unfair in practice. It may be impossible in some cases for the prosecution to provide the evidence necessary to show that a child knew his or her act was seriously wrong. To rebut the presumption, the prosecution must produce evidence separate from the facts of the offending - for example, of the defendant's response to police questioning, or reports from his or her teachers. Such evidence may simply not be available". (Consultation Paper 1997, p. 7)
This argument seems to run contrary to the previous argument in which the Government asserted that the presumption was so easily rebutted that its existence was illogical. The fact that sufficient evidence is easily produced to rebut the presumption is evidenced by the frequent conviction of those aged below fourteen years of age. Even with the presumption in place, the Government are aware of the fact that 7,125 children under the age of fourteen were proceeded against in the magistrates court in 1996 (Michael 1998, col 67WA).
This argument also seems to ignore the possibility that if there are some cases where the evidentiary burden is not discharged, then this may simply be because the child concerned is not sufficiently culpable. Even if one accepts that the evidentiary burden required to dislodge the presumption may occasionally result in a morally culpable child going unpunished, this is not an argument for disposing with the presumption altogether. It is true that the pursuit of procedural justice may sometimes lead to substantive justice not being done, in the sense that a potentially guilty person goes free. However, the abandonment of procedural justice may lead to substantive injustice, in the sense of an innocent person being convicted. If prevention of the latter is regarded as important, then acceptance of the former is inevitable. This point is taken up by Lord Lowry:
"If the prosecution's case must fail sometimes because some or all of the probative evidence cannot be given, that is not a unique situation and it must be borne with fortitude in the interests of fairness to the accused." (p. 399)
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Turning now to clause 32 of the Crime and Disorder Bill, which amends section 35 of the Criminal Justice and Public Order Act 1994, lifting the restrictions on inferences being drawn from the silence at trial of offenders in the ten to thirteen years age group.
This section is unavoidably brief. The Labour Government do not appear to regard this issue as important enough to merit a full investigation; neither do they seem to regard it as necessary to put forward anything approaching a full argument to justify this amendment. As this provision was not included in the Crime and Disorder Bill until its third reading in the House of Lords, it is not a topic which is discussed in the relevant consultation paper (Consultation Paper 1997) or in the White Paper (White Paper 1997) which preceded the Crime and Disorder Bill.
The most comprehensive elucidation of the Government's reasons for this amendment is derived from the transcripts of the introduction of this amendment in the House of Lords. Lord Williams of Mostyn, the Home Office Minister who introduced the amendment, constructs the Government's arguments in support of the provision around a dual notion of consistency.
"The first is consistency with the intention to abolish the presumption of doli incapax ... In most cases it is reasonable to conclude that a child of this age, if the circumstances are clearly explained to him or her, will be able to understand the consequences of refusing to answer a question, or of refusing to speak up on his own behalf. It is not unreasonable to expect someone who has an innocent explanation to provide that explanation". (Lord Williams of Mostyn, cols 203-4)
The government seems to have made a rather presumptuous leap here: even if one accepts that all children over ten years old are clearly capable of distinguishing between right and wrong, does it necessarily follow that these same individuals are capable of understanding complex legal terms and of coping with situations so tense they frequently cause adults to crumble? The Government have assumed that children in this age group are in possession of these qualities without any substantive investigation into the matter.
The argument that if you are innocent you will have no problem testifying to that effect in court has been criticised convincingly with reference to adult offenders (for example, Greer 1990). Factors other than guilt have been well-documented as possibly standing in between the accused and testimony that will benefit their defence: the fact that some people are inarticulate, that they are being questioned in a cunning way by lawyers whose job is to outwit them, that court is a frightening place, that the court room is full of language which many individuals find incomprehensible, are all factors which could enhance the risk of self-incrimination, whether one is guilty or not. All these factors are likely to be magnified to the detriment of the accused where the accused is a child of ten, eleven, twelve or thirteen years of age.
Regarding the Government's assertion that such children will be responsible for their actions should they refuse to answer questions, and, further, that they will understand the consequences of such a refusal, Baroness Mallieu responded with the following logic:
"When a defendant is aged between 10 and 14, in reality the decision on whether to give evidence is not taken by the child. It is the decision of the advocate. The child does what he is advised to do. Indeed he is usually quite incapable, no matter how carefully it is explained, of understanding the meaning of `adverse inferences' or what the consequences of the choices open to him are." (Baroness Mallieu 1998, col 205)
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"The second reason for introducing the amendment is to achieve consistency ... with existing legislation. There are no restrictions on drawing inferences from the failure of 10 to 13 year-olds to mention facts when charged or questioned. That is Section 34 of the 1994 Act. All children above the age of criminal responsibility are already treated equally under Section 36 of that Act which is the failure or refusal to account for objects, substances or marks; and Section 37, the related failure or refusal to account for presence at a particular place. What we are doing is to bring the position of those young people in court into line with existing related provisions". (Lord Williams of Mostyn 1998, cols 203-204)
This reasoning seems to imply that the current Government think that the restriction on inferences being made from silence at trial for offenders under fourteen years old were left there by accident. In fact, the lack of consistency between sections was due to a recognition by the Conservative government of the extraordinary difficulties such young children would have to face if effectively forced to testify in court. Being questioned in court is generally considered to be an even more nerve-racking affair than being questioned by the police. The exemption from inferences being drawn in s35 recognised this fact: it was not a statutory oversight.
When questioned as to whether the government had consulted with relevant bodies such as the Bar Council, the Law Society or the Criminal Bar Association to glean their opinions of the wisdom of this endeavour to achieve consistency between sections, Lord Williams gave the following response:
"There was no consultation on this because ... this is simply making it consistent with what already obtains in Sections 34, 36 and 37 of the 1994 Act." (Lord Williams of Mostyn 1998, col 207)
It seems that matters such as whether or not there is any practical need for change in the courts, whether or not it has been proved that drawing such inferences would be fair to the children concerned, come secondary to the Government's desire to achieve consistency on paper. This amendment will result in children being subjected to terrifying ordeals (which they may well be ill-equipped to cope with or to comprehend); the injustice of the situation is exacerbated by the fact that their predicament is the result of an ill-researched provision, rushed through solely on the basis of consistency.
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Set at ten years of age, the threshold for criminal responsibility in England and Wales is one of the lowest in Western Europe (for example, the age of criminal responsibility in France is 13; in Germany it is 14; in Spain it is 16; furthermore, many of these countries also have presumptions akin to doli incapax in place). Our age of criminal responsibility is set so low that the United Nations Committee on the Rights of the Child expressed concern that it might be incompatible with Articles 37 and 40 of the United Nations Convention on the Rights of the Child, leading to a recommendation that `serious consideration be given to raising the age of criminal responsibility throughout the areas of the United Kingdom' (United Nations 1995). It would seem odd, therefore, that the removal of the presumption of doli incapax has not been accompanied by a raising of the statutory age of criminal responsibility.
Our already intolerant youth justice system has been rendered even more unforgiving by clauses 31 and 32 of the Crime and Disorder Bill. Following the enactment of these provisions, all children of ten years of age and upwards will be treated as having the same moral culpability and ability to conduct themselves as an adult (see further, Bandalli 1998). Lord Lowry quoted the following words in C (A Minor) v. DPP:
"No civilised society regards children as accountable for their actions to the same extent as adults." (Howard 1982, p.343)
If the above contention is true, following the enactment of the Crime and Disorder Bill, ours will no longer be a civilised society.
Bandalli (1998) `Abolition of the Presumption of Doli Incapax and the Criminalisation of Children' 37 Howard Journal of Criminal Justice 114.
Baroness Mallieu (1998) HL Deb vol 588, col 205, 31 March 1998.
Cavadino (1997) `Goodbye Doli - must we leave you?' 9 Child & Family Law Quarterly 165.
Consultation Paper (1997), Tackling Youth Crime: A Consultation Paper (London: HMSO).
Greer (1990) `The Right to Silence: A Review of the Current Debate' 53 Modern Law Review 709.
Howard (1982) Criminal Law (Sydney: Law Book Company).
Hudson (1997) `Social Control' in Maguire, Morgan & Reiner (eds) The Oxford Handbook of Criminology (Oxford: Clarendon Press).
Law Commission (1985), Codification of the Criminal Law (London: HMSO).
Law Commission (1989), Criminal Law: A Criminal Code for England and Wales (London: HMSO).
Lord Williams of Mostyn (1998) HL Deb vol 587, cols 831-841, 19 March 1998.
Lord Williams of Mostyn (1998) HL Deb vol 588, cols 203-204, 31 March 1998.
Michael (1998) HC Deb vol 304, col 67WA, 12 January 1998.
Penal Affairs Consortium (1993) A Step in the Wrong Direction: the Right and Wrong Way of Tackling Juvenile Crime (London: Penal Affairs Consortium).
Penal Affairs Consortium (1995) The Doctrine of Doli Incapax (London: Penal Affairs Consortium).
Rutherford (1992) Growing Out of Crime: the new era, 2nd ed, (Winchester: Waterside Press).
United Nations (1995) Concluding Observations of the Committee on the Rights of the Child: United Kingdom of Great Britain and Northern Ireland CRC/C/15/Add 34, January 1995, para. 36.
West (1982) Delinquency: Its Roots, Careers and Prospects (London: Heinemann Educational).
White Paper (1990) Crime, Justice and Protecting the Public: the Government's Proposals for Legislation (London: HMSO) Cm 965.
White Paper (1997) No More Excuses: A New Approach to Tackling Youth Crime in England and Wales (London: HMSO) Cm 3809.
