Historic Sexual Offences & Doli Incapax

The age of criminal responsibility is a contentious topic for many countries across the world, with different states taking distinct views on what age should be fixed as being appropriate for holding someone (that would in most cases still be a child) responsible for what is, if proven, criminal conduct. The UK has struggled with this question not least because of the number of young people that have been shown to have committed some very disturbing, sexual crimes as children.

It is important to highlight that the UK’s jurisdictional matrix makes the issue of criminal responsibility quite complex: Scotland takes a different approach to the age at which a child can be prosecuted for criminal behaviour to England and Wales.

In this blog post we will consider the issue of doli incapax, or the age at which a child is considered incapable of committing a crime and immune from prosecution in England & Wales. This has become a very topical issue in previous years, with an increasing number of media reports of historic sexual abuse cases, which highlight the ability of younger people to commit truly disturbing acts.

Getting the facts right: can a child be prosecuted?

There has been a great deal of debate about the age of criminal responsibility in respect of sexual offences, and at what point a child – someone under the age of 18 – can be prosecuted for alleged criminal behaviour. There have been developments in the law in this area, and it is very important to distinguish between the old rules and the law as it applies today.

What was the old law on child sexual offences?

Historically, there was an irrebuttable presumption in common law that a person under 14 could not commit rape, (the sexual incapacity doctrine) this was abolished by the Sexual Offences Act 1993. As well as this, up until 1998, (with the enactment of the Crime and Disorder Act 1998) an individual who was alleged to have committed a sexual offence e.g. indecent assault or even rape as a child i.e. aged between 10 and 14 could advance a defence of doli incapax.  In other words, they could argue their being unable of forming the intent in their minds for having done so by reason of their age. This was largely to do with the view having been taken that children within that age bracket were not sufficiently mature to have been able to form the intent to commit a crime. It was still possible for this defence to be defeated by the prosecution with sufficiently strong evidence –however, it was a rebuttable presumption that an accused person could take advantage of.

What is the current law?

S34 of the Crime and Disorder Act 1998 1998 Act stipulates that:

“The rebuttable presumption of criminal law that a child aged 10 or over is incapable of committing an offence is hereby abolished.”

There was some ambiguity of whether s34 merely abolished the presumption that a child aged between 10 and 14 could use that defence, or abolished the defence in its entirety for those within that age bracket. This was the subject of discussion in the case of R v JTB [2009] UKHL 20, concerning a then 12-year-old boy and his guilty plea of causing or inciting other children under the age of 13 to become involved in sexual activity against the terms of the Sexual Offences Act 2003. He appealed his conviction to the then House of Lords, arguing that he was doli incapax. The House of Lords took the view that the meaning of the 1998 Act was very clear – Parliament had decided to abolish the defence in its entirety for those that could previously take advantage of it.

It is crucial for individuals dealing with allegations of historic sexual abuse where they are accused of being involved in committing sexual offences in their youth to get the backing of a specialist sexual offences lawyer to represent and construct a defence for them. It will be vital to a defence for the facts to be established at the outset, given that the defence of doli incapax no longer exists. That being said, there will be other issues to consider including the respective ages of the parties and whether there is any tangible evidence of exploitation – sexual activity between parties who would have been around the same age that was mutually agreed is, generally, unlikely to be prosecuted. Furthermore, conduct that is alleged to have been committed by individuals when they were aged below 10 years old will be impossible for prosecutors to pursue: children below the age of ten are deemed immune from prosecution.

Speaking with specialist lawyers on child offences: how can they help?

Child sexual offences law is a particularly complex sub-field of criminal law which has been the subject of piecemeal and sometimes fundamental change in previous years. The fact that an individual is suspected of having committed a sexual offence as a child needs to be brought to the attention of a specialist legal team that can provide prompt guidance on what is likely to happen and identify how they can help to alleviate what can be a very stressful experience for families.

Contact our Sexual Offences Solicitors today

Tuckers Solicitors is a leading law firm providing defence advice and representation across all aspects of the criminal law. Our highly-experienced team are among some of the most highly regarded in the field, and are routinely sought out to provide clear and prompt guidance for historic sexual offences cases.

At Tuckers, we understand how daunting it can be for you to be facing questions around your behaviour as a child, and that you may at times feel at a loss on how to resolve the situation. That is where our team can help: we can act as your representative with the police and prosecutors, and ensure that they are protected during what can be a very frightening experience. We will work with you to ensure that you are fully appraised on what, if anything needs to be considered in terms of any likely prosecution. We ensure that our clients fully understand their rights, and are afforded the full protection that the law entitles them to. If you would like to speak to Richard Egan‘s Sexual Offences team on any aspect of child sexual offence law, contact us today.