Northumbria Legal Studies Working Paper

Series

The Abolition Of Doli Incapax And The Alternatives

To Raising The Age Of Criminal Responsibility

Leanne Munro Gibson

Northumbria Legal Studies Working Paper No.

2019/02
University of Northumbria at Newcastle – School of Law

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THE ABOLITION OF DOLI INCAPAX AND THE ALTERNATIVES TO
RAISING THE AGE OF CRIMINAL RESPONSIBILITY

Leanne Munro Gibson*

Abstract

‘The law, as a system of rules that guides and governs human interaction, is premised on the
view that humans can understand and follow rules.’1 It is evident that children are unable to
fully understand and follow the law in the same way as an adult as evidenced by extensive
research into a child’s cognitive ability.2 The doctrine of doli incapax reflects the concern that
‘using criminal penalties to punish a child who does not appreciate the wrongfulness of his or
her actions lacks moral justification’.3 Despite this, the doli incapax doctrine was abolished by
Section 34 of the Crime and Disorder Act 1998. This paper seeks to explore why the doctrine
of doli incapax was abolished and whether as a result, a different mechanism should be put in
place to provide protection for young offenders.

Key Words:
Age of Criminal Responsibility (ACR)
Doli incapax
Criminal conduct

1. What is doli incapax?

Doli incapax is defined as ‘incapable of committing an offence’.4 Ultimately, the doli incapax
doctrine created a protective barrier for children aged ten to fourteen. It was presumed that an
offender between these ages lacked the capacity to fully understand that the crime they had

* Graduating student on the MLaw Degree.

1
Raymond Arthur, ‘Rethinking the criminal responsibility of young people in England’ (Opportunities and
Challenges: Implementing the UN Convention on the Rights of the Child conference, Queen’s University Belfast,
June 2011) 2
2
Royal Society, Brain Waves Module 4: Neuroscience and the law (2011) 14; see also Age of Criminal
Responsibility HL Bill 3 (2017) Vol 783, in particular the comments of Lord Dholakia
3
(n 1) 4
4
Crime and Disorder Act 1998, s 34

3
committed was seriously wrong.5 Consequently, it would be unfair to impose the full rigours
of the law on a child that does not have the capacity to fully understand their conduct. This was
reflected by the doli incapax doctrine as, for a child to be guilty of an offence, the prosecution
had to satisfy the court that the child knew what he was doing was seriously wrong, not merely
naughty or mischievous.6 The result of this meant that a young offender would only be held
criminally responsible if the prosecution could prove, beyond all reasonable doubt, that the
young offender knew what they were doing was seriously wrong in addition to satisfying the
actus reus and mens rea.7

The doli incapax doctrine provided protection for children who were unable to understand the
full extent of their crimes. It is vital to note that where children were able to understand the full
extent of their crimes, they were unable to rely on the doctrine as a defence. An example of
this can be seen in the case of James Bulger.8 Having undergone psychiatric assessments, it
was found that both John Venables (JV) and Robert Thompson (RT) were capable of knowing
right from wrong.9 The murder convictions of JV and RT are clear examples of the doctrine
working in favour of punishing children for their behaviour. As convictions were secured in
this case, it seems unreasonable that the Government decided to abolish the doctrine of doli
incapax as it was clearly workable in practice.10 Despite this, there were many judges,
academics and politicians that found the doctrine to be ‘contrary to common sense’.11 This will
be discussed further below. In addition, it will be discussed below whether an alternative
mechanism should be put in place to ensure protection for children. The scope of this paper
does not intend to focus on a variety of different mechanisms, only that proposed by the Law
Commission as discussed at 2.

5
Felicity Gerry QC, ‘Should England and Wales Bring Back Doli Incapax?’ (2017) 181(12) Criminal Law &
Justice Weekly 190-191
6
JM (a minor) v Runeckles [1984] 79 Cr App Rep 255
7
(n 1) 3
8
R v Secretary of State for the Home Department, ex parte Venables; R v Secretary of State for the Home
Department, ex parte Thompson [1997] 3 All ER 97
9
David Batty ‘James Bulger’s killers were old enough to face trial, insists government’ The Guardian (London,
13 March 2010) < https://www.theguardian.com/uk/2010/mar/13/bulger-jon-venables-maggie-atkinson>
> accessed 24 March 2019
10
Hannah Wishart, ‘Was the abolition of the doctrine of doli incapax necessary?’ (2013) 1(2) Manchester
University UK Law Student Review 50, 56
11
Home Office, No More Excuses – A New Approach to Tackling Youth Crime in England and Wales (White
Paper, Cm 3809, 1997)

4
 1.1 Why was it abolished?

The legitimacy of the doli incapax doctrine has been questioned on a number of occasions by
judges but most notably by Mr Justice Laws, who stated that doli incapax was ‘no longer part
of the Law of England’.12 This suggests that he did not see the need for the doli incapax
doctrine, prior to the abolition. He added that ‘whatever may have been the position in an earlier
age, when there was no system of universal compulsory education and when perhaps children
did not grow up as quickly as they do nowadays… this presumption at the present time is a
serious disservice to our law.’13 When progressed to the House of Lords, Lord Lowry agreed
that the ‘presumption is not, and never has been, completely logical’.14 Despite some support,
the House of Lords overruled Mr Justice Laws’ judgment and said that abolishing the doctrine
of doli incapax was a significant change to the law and was therefore a matter for Parliament
to consider rather than the judiciary.15

In 1997, the Shadow Home Secretary, Jack Straw launched a ‘six-point policy plan for juvenile
crime and disorder’.16 The fourth point proposed to abolish the doctrine of doli incapax. He
explained his reasoning for this as ‘at present we have med-evil law – doli incapax which
assumes that youngsters are ‘incapable of evil’ unless the prosecution can prove the reverse.
This legal presumption makes it very difficult for youth courts to convict young offenders and
start the process of changing their offending behaviour.’17 The White Paper, ‘No More
Excuses’ stated that the doctrine of doli incapax was ‘contrary to common sense’ and ‘not in
the interests of justice, or victims or of the young people themselves’.18 Ultimately, the
Government agreed with the views advanced by Mr Justice Laws and confirmed that as there
were better formal education systems for children, it meant that children of a younger age were
perceived as being able to distinguish right from wrong.19 Additionally, the abolition was
justified by children being more ‘streetwise’ in today’s society. This argument was criticised

12
C (A Minor) v DPP [1994] 3 All ER 190 and as cited (n 1) 5
13
ibid
14
ibid
15
R v JTB [2009] UKHL 20
16
Paul Cavadino, ‘Goodbye doli, must we leave you?’ (1997) 9(2) Child and Family L. Q. 165
17
Ibid P.1
18
Home Office, No More Excuses – A New Approach to Tackling Youth Crime in England and Wales (White
Paper, Cm 3809, 1997) 4.4
19
ibid

5
by academics such as Raymond Arthur20 and Sue Bandalli21 who argue that there are multiple
influences on a child including education, family and media which justifies the need for
protections in the law for children. Fundamentally, the accessibility of media allows children
to become more streetwise, but this also opens children up to more danger. An example
whereby this can be demonstrated is in the James Bulger case.22 It has been suggested that the
murder of James Bulger was influenced by a video game.23 This may justify the need for further
protection for children who commit crimes, especially where they have been influenced to do
so. Despite these criticisms, Section 34 of the Crime and Disorder Act 1998 reads ‘the
rebuttable presumption of criminal law that a child aged ten or over is incapable of committing
an offence is hereby abolished’. The abolition of doli incapax occurred alongside the
Government’s consistent unwillingness to increase the Age of Criminal Responsibility (ACR)
above ten years old.24 The abolition of the doctrine in conjunction with the refusal to raise the
ACR indicates that England and Wales adopt one of the harshest approaches to young
offenders.25

Prior to the abolition of doli incapax, there were a number of arguments advanced as to why
the doctrine of doli incapax was ineffective. Many of the criticisms concerned the
‘presumption’ of doli incapax. This logic stems from the argument that there are two parts to
the doli incapax doctrine: the presumption and the defence. It is argued that the presumption,
that a child aged ten to fourteen is presumed to be incapable of crime, is outdated and unrealistic
as it involves the prosecution having to rebut the presumption in every single case.26 Another

20
Raymond Arthur, ‘Rethinking the Criminal Responsibility of Young people in England’ (2012) 20(1) European
Journal of Crime 13, as cited in Kate Fitz-Gibbon, ‘Protections for children before the law: An empirical analysis
of the age of criminal responsibility, the abolition of doli incapax and the merits of a developmental immaturity
defence in England and Wales’ (2016) 16(4) Criminology and Criminal Justice 391, 401
21
Sue Bandalli, ‘Abolition of the presumption of doli incapax and the criminalisation of children’ (1998) 37(2)
Howard Journal of Criminal Justice 114, as cited in Kate Fitz-Gibbon, ‘Protections for children before the law:
An empirical analysis of the age of criminal responsibility, the abolition of doli incapax and the merits of a
developmental immaturity defence in England and Wales’ (2016) 16(4) Criminology and Criminal Justice 391,
401
22
R v Secretary of State for the Home Department, ex parte Venables; R v Secretary of State for the Home
Department, ex parte Thompson [1997] 3 All ER 97
23
Edward Pilkington, ‘Boys guilty of Bulger murder – Detention without limit for ‘unparalleled evil’: Judge
attacks video violence’ The Guardian (London, 25 November 1993)
https://www.theguardian.com/uk/1993/nov/25/bulger1 <accessed 27 March 2019 > also see; Colin Blackstock,
‘Killing ‘incited by video game: parents of murdered teenager call for ban’ The Guardian (London, 29 July 2004)
https://www.theguardian.com/uk/2004/jul/29/ukcrime.colinblackstock <accessed 17 March 2019
24
Kate Fitz-Gibbon, ‘Protections for children before the law: An empirical analysis of the age of criminal
responsibility, the abolition of doli incapax and the merits of a developmental immaturity defence in England and
Wales’ (2016) 16(4) Criminology and Criminal Justice 391, 392
25
ibid
26
Amy Purvis, ‘Doli incapax: the culpability of children in criminal law: Case comment’ (2009) 73(2) JCL 136

6
criticism stems from the fact that the doli incapax doctrine did not provide certainty within the
law. For example, the doli incapax doctrine protected young offenders between the ages of ten
to fourteen but it was difficult to establish when a child reached a certain level of
development.27 Catherine Elliot argues that it is undesirable to have a flexible age limit because
the doli incapax defence relies on concepts such as social background and intellectual
competence which were unmeasurable.28

While these criticisms may justify the removal of the presumption in the doli incapax doctrine,
it does not provide a justification for removing the entire doctrine of doli incapax. It has been
concluded in a number of cases that ‘the practical problems of doli incapax arose because this
was presumed to apply in every case… if the presumption is removed, I would have thought
there remains a perfectly workable defence’.29 Latham LJ agreed with this stating that ‘the
mischief to which the abolition of the presumption was aimed was the difficulty of the
prosecution having to rebut every case’.30 After the implementation of Section 34, it was
accepted that the concept of doli incapax was abolished entirely. 31 However, it has been
suggested that the abolition of doli incapax did not abolish both parts to the doctrine.32
Nevertheless, the House of Lords in R v JTB33 confirmed that both the presumption and the
defence had been abolished by statute.34 This means that the doctrine of doli incapax has been
abolished in its entirety.

2. Should a different mechanism be put in place for young offenders?

Felicity Gerry QC argues that the criminal justice system in England and Wales is ‘hopelessly
off course and there needs to be an injection of balance in the system.’35 Since the abolition of
the doli incapax doctrine, there has been no system which provides guidance on whether

27
Catherine Elliot, ‘Criminal responsibility and children: a new defence required to acknowledge the absence of
capacity and choice’ (2011) (Vol. 75, Journal of Criminal Law) P.289- 301
28
ibid
29
DPP v P [2008] 1 WLR 1005
30
R v T [2008] EWCA Crim 815
31
Amy Purvis, ‘Doli incapax: the culpability of children in criminal law: Case comment’ (2009) 73 JCL 136
32
Helen Howard and Michael Bowen, ‘Unfitness to plead and the overlap with doli incapax: An examination of
the Law Commissions proposals for a new capacity test’ (2011) 75 JCL {380}, (382)
33
[2009] UKHL 20
34
Helen Howard and Michael Bowen, ‘Unfitness to plead and the overlap with doli incapax: An examination of
the Law Commissions proposals for a new capacity test’ (2011) 75 JCL {380}, (382)
35
Felicity Gerry QC, ‘Should England and Wales Bring Back Doli Incapax?’ (2017) 181 Criminal Law & Justice
Weekly 190-191

7
conduct is that of a child criminal or whether the act is simply just childish behaviour. 36 As a
result, England and Wales are criminalising children without having proper legal safeguards in
place.37 The Government should rectify this as criminalising young children affects their future
prospects and ignores their childhood vulnerabilities.38 In order to sufficiently protect
childhood vulnerability within the law, many would argue that the answer is to raise the ACR
considerably.39 With reference to the Age of Criminal Responsibility Bill 2017,40 it is clear to
see that the Government has no intention of raising the ACR. Having rejected the 2017 Bill
and with Brexit occupying the majority of the time in Parliament, it is unlikely that a further
ACR Bill will be introduced again any time soon or considered as a priority.

As there are no plans for the ACR to be raised, an alternative solution is to put a defence in
place to protect children in trouble with the law. The European Court of Human Rights, with
reference to the United Nations Convention on the Rights of the Child (UNCRC), commented
upon the importance of treating young offenders differently to adults ‘given their special
situation and the importance of their development and integration in society’.41 So, whilst it is
clear that there were procedural issues with the doli incapax doctrine, the abolition has left a
gap which needs to be filled with a new defence.42

The Law Commission takes the view that anyone who completely lacks criminal capacity
should not be found criminally responsible.43 In order to find somebody criminally responsible,
the Law Commission draws out three particular capacities needed: ‘the ability to rationally
form a judgment, the ability to understand wrongfulness, and the ability to control one’s
physical actions’.44 There is evidence to suggest that children between the ages of ten to
fourteen lack these capacities45 and therefore, the Law Commission has expressed its concern

36
ibid
37
ibid
38
ibid
39
ibid
40
Age of Criminal Responsibility HL Bill 3 (2017) Vol 783. The government state that the current ACR
‘appropriately and accurately reflects what is required of our justice system’.
41
S and Marper v United Kingdom App. Nos 30562/04 and 30566/04 [2009] 28 EHRR 50, as cited Catherine
Elliot, ‘Criminal responsibility and children: a new defence required to acknowledge the absence of capacity and
choice’ (2011) {Vol. 75} Journal of Criminal Law {289}, 291
42
Catherine Elliot ‘Criminal responsibility and children: a new defence required to acknowledge the absence of
capacity and choice’ [2011] Journal of Criminal Law {289}, 290
43
Law Commission, A new homicide act for England and wales? (Law Comm No 177, 2005)
44
Claire MacDiarmid, ‘After the Age of Criminal Responsibility: A Defence for Children who Offend’ (2016)
67(3) NILQ {327}, 330
45
F.J. Lexson, and D Repuci, ‘Effects of Psychopathology on Adolescent medical Decision-Making’ (1998) 5
University of Chicago Law School {63} 71 as per (n 1) 10

8
over the lack of a doli incapax doctrine in recommending the reform of homicide offences to
reflect ‘anxieties that the current law is unduly harsh on young offenders’.46 The Law
Commission proposes a ‘developmental immaturity’ defence which would be drawn within the
defence of diminished responsibility.47 This defence would be available if it could be proved
that the defendant’s capacity for judgement, control or understanding was substantially
impaired by developmental immaturity. The Law Commission proposed reforming diminished
responsibility in the following way:
It proposed that a defendant under the age of eighteen would need to meet three requirements:
‘That at the time of the killing:
1. His or her capacity to;
a) Understand events;
b) Judge whether his or her actions were right or wrong; or
c) Control him or herself
was substantially impaired by an abnormality of mental functioning arising from an
underlying condition or developmental immaturity or both, and
2. The abnormality of mental functioning or developmental immaturity, or a
combination of both, was a significant cause to the defendant’s conduct in carrying
out the killing.’48

This defence would enable a murder sentence to be reduced to manslaughter. This allows the
judge discretion when sentencing whereas a murder sentence would mean a mandatory term of
detention at Her Majesty’s Pleasure49 (as seen in the James Bulger case).50 However, this
defence is limited in its effect as it will only be a partial defence to the offence of murder. This
does not provide protection for young offenders committing other offences and so, would not

46
Catherine Elliot ‘Criminal responsibility and children: a new defence required to acknowledge the absence of
capacity and choice’ [2011] Journal of Criminal Law {289}, 302
47
Law Commission, A new homicide act for England and wales? (Law Comm No 177, 2005)
48
Kate Fitz-Gibbon, ‘Protections for children before the law: An empirical analysis of the age of criminal
responsibility, the abolition of doli incapax and the merits of a developmental immaturity defence in England and
Wales’ [2016] Criminology and Criminal Justice Vol 16(4) {391}, 402-403
49
Powers of Criminal Courts (Sentencing) Act 2000, Part V Chapter II s 90, ‘where a person convicted of murder
or any other offence the sentence for which is fixed by the law as life imprisonment appears to the court to have
been aged under 18 at the time the offence was committed, the court shall (notwithstanding anything in this or
any other Act) sentence him to be detained during Her Majesty’s pleasure’.
50
R v Secretary of State for the Home Department, ex parte Venables; R v Secretary of State for the Home
Department, ex parte Thompson [1997] 3 All ER 97, as cited in Kate Fitz-Gibbon, ‘Protections for children before
the law: An empirical analysis of the age of criminal responsibility, the abolition of doli incapax and the merits
of a developmental immaturity defence in England and Wales’ [2016] Criminology and Criminal Justice Vol
16(4) {391}, 403

9
fully fill the gap that doli incapax has left. Additionally, the defence of diminished
responsibility usually works on the basis that the defendant has ill mental health. Using this
defence would mean associating a young offender with a defence that is generally connected
with ill mental health.51 ‘Developmental immaturity’ suggests that young offenders benefitting
from this defence are abnormal in their development whereas the truth is that young children
are likely to act in this way and it may be perfectly normal for a child of that age to do so.52

The Government is concerned about the recommendation of developmental immaturity for two
reasons, namely:
1. It is not convinced that the absence of a provision along these lines is causing any
significant problems in practice. It states, for example, that it is unaware of any specific
cases that have resulted in inappropriate verdicts; and
2. Secondly, it believes that there is a risk that such a provision would open up the defence
too widely and catch inappropriate cases which could lead to inconsistencies within the
law.53

As a result, the Government decided not the extend the definition of diminished responsibility.
Accordingly, the new diminished responsibility defence, introduced as part of the Coroners
and Justice Act 2009, makes no reference to children and developmental immaturity. This
allows for unreasonable results as ‘someone aged twenty with the mental age of ten, can plead
diminished responsibility as they suffer from ‘arrested or retarded development of mind’ under
Section 2 of the Homicide Act 1967. Yet, someone who is in fact ten years old and should be
able to plead that defence for the same essential reason, namely that their mental age may have
substantially impaired their responsibility for killing, are unable to.’54

Catherine Elliot criticises the flexibility of age under the doli incapax doctrine (namely, its
availability between the ages of ten and fourteen), proposing that a fixed age should instead be
put in place.55 She further argues that ten is not the age at which it should be set as children are

51
Catherine Elliot ‘Criminal responsibility and children: a new defence required to acknowledge the absence of
capacity and choice’ [2011] (Vol 75) Journal of Criminal Law {289}, 303
52
Ibid 303
53
Home Office, Murder, Manslaughter and Infanticide: Proposals for Reform of the Law (Ministry of Justice,
CP19/08, 2008) P 12
54
Law Commission, A new homicide act for England and wales? (Law Comm No 177, 2005)
55
Catherine Elliot ‘Criminal responsibility and children: a new defence required to acknowledge the absence of
capacity and choice’ [2011] (Vol 75) Journal of Criminal Law {289}, 301

10
very much under the influence of adults at this age.56 However, an age that she believes would
be suitable is sixteen as children of this age are able to make decisions regarding leaving school,
getting married and consenting to sexual intercourse.57 Elliot proposes that we should set the
minimum age limit at fourteen with a view to raising it to sixteen. 58 If this was the case, there
may be no need to raise the ACR as young offenders would be adequately protected. The
arguments for raising the ACR still far outweigh those for maintaining it especially as it is clear
that the Government does not intend to implement the proposed defence for young offenders.

An alternative way to protect young offenders may be to implement principles set out in the
Children Act 1989. For example, the Children Act 1989 requires that a child’s wishes and
feelings are taken into account ‘in light of their age and maturity’.59 Whilst this Act concerns
children proceedings, the principle could apply in the Youth Justice System (YJS) as a child
should only be found guilty of an offence if they are mature enough to understand it. As
established throughout this paper, a child aged ten is unable to fully understand their actions.
It is on this premise that the doctrine of doli incapax provided protection for young offenders
aged between ten and fourteen. As the doctrine of doli incapax is no longer in force, the
Government may agree that using the principles set out in the Children Act 1989 in order to
judge each individual child on their maturity could be a sufficient alternative.

3. Conclusion

At present, children in trouble with the law are not afforded special protection and this is
problematic as children and adults differ in their ability to understand their conduct. It is clear
that the doctrine of doli incapax was not effective for numerous reasons. However, the
proposals put forward by the Law Commission for reform in this area only address concerns
with regards to young offenders committing murder. It does not, therefore, consider the
majority of young offenders whom have committed other offences and it is important for these
offences to be considered when considering reform in this area of law. In addition, the
Government has shown unwillingness to implement these reforms. Hence, it is clear that there
are pitfalls to the alternate mechanism put forward by the Law Commission as discussed in this

56
Ibid, 296
57
Ibid, 302
58
ibid
59
Children Act 1989, s 1(3)(a)

11
paper. It is, therefore, evident that there is a need for reform in this area of law and further
suggestions need to be considered.

12