The House of Lords allowed an appeal by "C" from the Queen's Bench Divisional Court ((1994) 158 JP 389; [1994] 3 WLR 888) who had dismissed "C's" appeal against his conviction of interfering with a motorcycle with the intent to commit theft or of taking without consent contrary to s.9(1) of the Criminal Attempts Act 1981.

"whether there continues to be a presumption that a child between the ages of 10 and 14 is doli incapax and, if so whether that presumption can only be rebutted by clear positive evidence that he knew that his act was seriously wrong, such evidence not consisting merely in the evidence of the acts amounting to the offence itself."

The facts, taken from the speech of Lord Lowry, were as follows. In 1992 two policemen saw two boys tampering with a motorcycle. C was holding the handlebars while the other boy tried, with a crowbar, to force open the chain and padlock securing the motorcycle.

The boys ran off. C who climbed over a wall was arrested. C's solicitor submitted that the prosecution had not adduced sufficient evidence to prove that C, who was just under 13 at the time of the offence, had guilty knowledge and knew that what he was doing was seriously wrong as opposed to merely naughty or mischievous. The justices found that C knew that what he had done was seriously wrong, and accordingly convicted, fined and bound him over to ensure his future good behaviour.

In the Lords, counsel for C drew attention to some dicta calculated to discourage Judges from lightly venturing to alter the law. R. v. Knuller [1973] AC 435 in which Lord Simon quoted the words of Lord Reid in Shaw v. DPP (1961) 125 JP 437; [1962] AC 220, 275; "Where Parliament fears to tread, it is not for the House [House of Lords] to rush in."

2. Caution should prevail if Parliament had rejected opportunities of clearing up a known difficulty or had legislated, while leaving the difficulty untouched.

All those aids pointed away from the solution proposed by the Divisional Court. The House adopted the speech of Lord Lloyd on judicial lawmaking in R. v. Clegg (1995) The Times, January 25; [1995] 2 WLR 80.

The presumption had in recent years been the object of some logical and forceful criticisms. The House went on to consider some of those criticisms.

1. It was true that there was compulsory education and perhaps children now grew up more quickly but better formal education and earlier sophistication did not guarantee that the child would more readily distinguish right from wrong.

2. While it was true that the presumption was out-of-step with the general law, the general law was not meant to apply without qualification to children under 14.

3. The phrase "seriously wrong" was conceptually obscure but when contrasted with "merely naughty or mischievous" its meaning was reasonably clear.

4. The rule was said to be illogical because the presumption could be rebutted by proof that the child was of normal mental capacity for his age; that led to the conclusion that every child was initially presumed not to be of normal mental capacity for his age, which was absurd. Proof of the mental normality had in practice, understandably but perhaps not always logically, been largely accepted as proof that the child could distinguish right from wrong and form a criminal intent. The presumption itself was not and never had been completely logical; it provided a benevolent safeguard which evidence could remove. Very little evidence was needed but it had to be adduced as part of the prosecution's case or else there would be no case to answer.

First, one would have to know the nature of the earlier convictions before accepting that they might properly prove a guilty mind in relation to the offence charged.

Second, could the opinion of an earlier court or jury prove the guilty mind vis-a-vis the later charge? If the primary facts were disputed, the House's opinion was that despite R. v. B (1980) 144 JP 35; [1979] 1 WLR 1185 to which Laws, J, had referred, a child defendant ought not to be put in a worse position than an adult by having evidence of his previous convictions admitted unless they could be admitted under generally an applicable principle, for example, if he had put his character in issue or attacked the character of prosecution witnesses or if the earlier facts came within the similar facts rule.

The House considered R. v. B and continued that if the prosecution's case had sometimes to fail because some or all of the probative evidence could not be given, that was not unique and it had to be borne with fortitude in the interests of fairness to the accused.

6. It had also been said that the rule was divisive because it bore hardly on isolated acts of wrongdoing done by children from "good homes" and perverse because it absolved children from "bad homes" who were most likely to commit criminal acts.

One answer to that was that the presumption contemplated the conviction and punishment of children who, possibly by virtue of their superior upbringing, bore moral responsibility for their action and the exoneration of those who did not. The Divisional Court's argument provided support for the modern outlook in favour of prescribing suitable treatment for the many children who committed antisocial acts, instead of searching for moral culpability, which should then be visited with retribution.

7. It was then said that the presumption was an outmoded survival from an age in which criminal guilt was inevitably followed by ferocious retribution. Times had changed since the days when children of 8 and 10 years were hanged for offences less heinous than murder. It should be observed that the purpose and effect of the presumption was still to protect children between 10 and 14 from the full force of the criminal law.

The first was that it was the general rule not to alter the law either by statute or by circumventing the common law to render an act punishable in retrospect. The House accepted that an offender when charged could not say "Unfair; when I transgressed, I thought my act was only naughty and not seriously wrong" but, objectively, something which when done was not regarded as a crime would if the QBD were right, ultimately turn out to have been one.

The second argument was that the presumption was so long standing that it should only be changed by Parliament to which Laws, J, inter alia, had replied that the common law was not a system of rigid rules but of principles whose application might alter over time. The House had already endeavoured to demonstrate that excellent principle could not be applied in the present situation.

The House considered that to classify the impugned doctrine as an "unargued premise" which was "simply assumed to apply", took too narrow a view of the doctrine of precedent. The presumption, stated as a rule of law, was the major premise and the facts of each case constituted the minor premise from which jointly the result was to be inferred: see Lupton v. FA & AB Ltd [1972] AC 634, 658-659 per Lord Simon.

Counsel for C had argued before their Lordships, inter alia, not that the presumption should be swept away but that in recognition of its frailties their Lordships should by judicial intervention effect a change by laying it down that the prosecution's initial burden of showing a prima facie case against a child should be the same as if the accused were an adult but that the child should be able, by evidence, to raise as a defence the issue that he was doli incapax: it would then be for the prosecution to prove the criminal standard that he was doli capax.

The Crown had as part of the prosecution's case to show that a child was doli capax before that child could have a case to meet. To call, as the counsel for C had done, the proposed innovation a merely procedural change greatly understated its radical nature which would not be disguised by continuing to impose the persuasive burden of proof upon the prosecution. The change would not merely alter the trial procedure but would in effect get rid of the presumption of doli incapax, the existence of which would in practice often prevent a charge from even being brought. That reflection had to be enough to discourage any thought of judicial legislation on the lines proposed.

Clearly then the presumption for better or for worse applied to cases like the present and the House turned to consider what had to be proved to rebut the presumption and by what evidence.

Two propositions were clear: the first was that the prosecution had to prove that the child defendant did the act charged and that when doing that act he knew that it was a wrong act as distinct from an act of mere naughtiness or childish mischief. The criminal standard of proof applied. The second proposition was that evidence to prove the defendant's guilty knowledge had not to be the mere proof of the doing of the act charged, however horrifying or obviously wrong that act might be.

The Divisional Court here, assuming that the presumption applied, would have reversed the youth court, rightly in the House's view because there was no evidence outside the commission of the offence upon which one could have found the presumption had been rebutted.

To obtain that kind of evidence apart from anything the defendant might have said or done, the prosecution had to rely on interviewing the suspect or having him physically examined or on evidence from someone who knew the defendant well. Under s.34 of the Criminal Justice and Public Order Act 1994, a child defendant's silence when questioned before trial might be the subject of comment if he failed to mention something which was later relied on in his defence which he could reasonably have been expected to mention at the earlier stage. The House did not see how that provision could avail the prosecution on the issue of guilty knowledge.

The conclusion was that both parts of the certified question should be answered "yes". Appeal allowed and the case remitted to the High Court in order that it might be sent back to the youth court with a direction to dismiss the charge.

The time had come to examine further a doctrine which appeared to have been inconsistently applied. That should be within the exclusive remit of Parliament. There was a need to study other systems including Scotland. This was a classic case for parliamentary investigation, deliberation and legislation.

No not the rugby results, just a few of the different ages of criminal responsibility throughout the world. What chance equality throughout the European Union?

Even this condensed version of the facts will take some time to assimilate; suffice it to say that the bold approach of Mann, LJ, and Laws, J, in the Divisional Court should be Parliament's aim, to quote Mann, LJ, where he considered whether the court had authority to abolish the presumption:

"The presumption was of such long standing that it should only be changed by Parliament, or at least a decision by the House of Lords. 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 conditions under which the presumption was developed in the earlier law now had no application."

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