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Rebutting the Presumption of Doli Incapax

It is an established presumption of common law that children over the age of 10 but not yet 14 do not have sufficient understanding to distinguish between good and bad and thus cannot be held to be criminally responsible.I Even though the existence of the presumption was recently confirmed by the House of Lords in C v DPP,2 debate still rages about whether this presumption should be abolished. It appears, however, that this discussion sometimes overlooks the fact that the presumption is a rebuttable one. Accordingly, a child can be held to be criminally responsible, and thus convicted, where it can be proven that he or she had arrived at that level of maturity and intellect which is a necessary condition of the crime charged. As such it allows the conviction of those who have reached the required stage of development, while protecting from conviction those who have not. The presumption is in essence a recognition that 'children's understanding, knowledge and ability to reason are still developing'. In order to rebut the presumption the prosecution must bring proof that the child, in addition to the mens rea, had acted with mischievous discretion; or in other words, that the child appreciated at the time of committing the act that he or she was doing something seriously wrong, as opposed to something merely naughty or mischievous." The question of what evidence should be called to rebut this presumption and allow conviction of the child has largely been left undiscussed. Several recent cases reveal that there exists a degree of uncertainty about just what evidence is necessary to satisfy the court that the child did appreciate the seriousness of wrongdoing. There are two basic propositions which,