ABSTRACT

Court of Appeal [1994] 3 WLR 888 Laws J: ...The defendant was 12 years old at the time of the incident. It was accordingly submitted to the justices, as it has been submitted to us, that the law presumed him to be doli incapax. Such a presumption applies, it is said, in any case where a defendant to a criminal charge is between the ages of 10 and 14 at the time of the alleged offence. Below the age of 10, of course, there is an absolute presumption that a child is incapable of committing a crime. Thereafter until he is 14, so the submission goes, there is a rebuttable presumption that he does not know that his act is 'seriously wrong' as opposed to 'merely naughty'. The presumption must be rebutted by positive proof adduced by the prosecution that in fact he knew full well that what he did was seriously wrong. In the present case it was argued before the justices that the prosecution had adduced no such proof....The requirement of specific evidence to rebut the presumption, which is generally supported in the cases, is consistent with Blackstone's treatment of the issue in Blackstone's Commentaries on the Laws of England, Book IV, 1st edn, 1769, pp 23-4:

But by the law, as it now stands, and has stood at least ever since the time of Edward the third, the capacity of doing ill, or contracting guilt, is not so much measured by years and days, as by the strength of the delinquent's understanding and judgment. For one lad of eleven years old may have as much cunning as another of fourteen; and in these cases our maxim is, that 'malitia supplet aetatem' ...under fourteen, though an infant shall be prima facie adjudged to be doli incapax; yet if it appear to the court and jury, that he was doli capax, and could discern between good and evil, he may be convicted and suffer death... But, in all such cases, the evidence of that malice, which is to supply age, ought to be strong and clear beyond all doubt or contradiction.