Historic convictions quashed – doli incapax

The Court of Appeal has quashed six convictions for historic offending on the grounds that the presumption of doli incapax was not left to the jury.

The appellant, AB, was convicted in 2013 of eight counts of historic offending which had occurred in the mid-1990s. Six of the eight counts alleged offending which straddled AB’s fourteenth birthday and thus embraced offending when she was 13 years old. At trial, the judge did not direct the jury about the rebuttable presumption of doli incapax. Doli incapax, which formed part of the common law until 1998,  required the prosecution to call evidence – importantly, above and beyond that which established the elements of the offence – which proved that a child between the age of 10 and 14 knew that what they were doing was “seriously wrong”. No evidence had been called at trial in relation to AB’s own maturity or understanding of the alleged behaviour, and so the absence of the judicial direction was fatal to the safety of the convictions.

The presumption of doli incapax is a critical protection for defendants who are alleged to have committed offences which pre-date 30 September 1998 and who were below the age of 14 at the time of the alleged offending. Doli incapax formed part of the common law for hundreds of years before its abolition in 1998. The abolition of the presumption was one of the first of many regressive criminal justice measures implemented by the Labour government following their election in 1997.

In AB, Kate O’Raghallaigh was instructed by Martin Rackstraw of Russell Cooke. It was Martin who first uncovered the judicial misdirection when he was representing AB in 2023 in relation to ancillary matters.