Abolition of the Presumption of Doli Incapax and the Criminalization of Children

• NCJ Number: 173793
• Journal: Howard Journal of Criminal Justice Volume: 37 Issue: 2 Dated: May 1998 Pages: 114-123
• Author(s): S Bandalli
• Date Published: 1998
• Length: 10 pages
• Publication Format: Article
• Language: English
• Country: United Kingdom

Annotation

The criminal responsibility of children is on the British parliamentary agenda in the Crime and Disorder Bill, which contains a provision to abolish the presumption of doli incapax (incapable of crime) for children aged 10 to 13; this paper examines the operation of the presumption of doli incapax and considers issues raised by the proposal for its abolition.

Abstract

The government believes there is no case for retaining the presumption of doli incapax. The arguments for abolishing the presumption are based on three contentions: its inherent irrationality, its unfairness in practice, and its archaic nature in assuming that "in general" a child under 14 years old cannot differentiate right from wrong and needs protection from the harshness of criminal punishment. Practitioners and groups concerned about the operation of the criminal law against children advocate the retention of the presumption of doli incapax. This support is based on the belief that the presumption offers protection from criminal liability, a belief that is largely unfounded. The presumption can be easily satisfied by interviewing techniques and adequate preparation and only protects the patently subnormal or beneficiaries of prosecutorial ineptitude; however, there are respects in which the existence of the presumption of doli incapax may operate in a protective fashion. The presumption denotes the child under 14 years old as a "special case" for whom additional considerations ought to weigh in the balance of the decision process, whether by caution or prosecution. The presumption may therefore assist in facilitating compliance with the principle in the UN Convention on the Rights of the Child that judicial proceedings should be the last resort. The presumption may also serve to divert children who might otherwise be cautioned or charged with criminal damage. The removal of the presumption would make childhood irrelevant to criminalization and cause even more concern about the United Kingdom's commitment to the UN Convention on the Rights of the Child. 25 notes and 25 references