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56
The Doctrine of Doli Incapax
evidence must have gravitated towards adducing the seriousness and graveness of the
child’s actions as confirmed in R v Gorrie. 56 It is worth to note that evidence of
observation cannot deduce evidence of the child’s criminality: A v DPP (1992) 57
bequests as much. So the courts were informed to avoid:
“The trap of applying the presumption of normality.. that any child of
the appellant’s age in today’s society would know perfectly well that to
behave in this way was to behave in a way that was seriously
wrong”. 58
The presumption was on the prosecution to find if the child was fully capable and
aware of the serious nature of their actions. Only then would the child take criminal
responsibility for their actions barring the above procedural determinations. 59 The
famous publicised case of the murder of James Bulger shows the rebuttable
presumption in practice. From the psychiatric assessments of the two co-defendants,
Thompson and Venables, the prosecution revealed that both children were capable of
knowing right from wrong. 60 To Jack Straw ‘both children were appropriately made
responsible for their actions’. 61 The two co-defendants, Thompson and Venables,
were charged with murdering James Bulger. Their guilt was not merely weighted
upon the presumption that they were capable of understanding the truancy of their
actions. Both defendants were judged by 12 jurors who were instructed to assess their
blameworthiness according to the standard of proof of ‘beyond reasonable doubt’ for
the death of James Bulger. 62 From the 12 jurors’ assessment of evidence provided by
the defence and prosecution, the two defendants were held criminally responsible.
From this perspective it is hard to assimilate at this stage, why the government
decided to abolish the doctrine of doli incapax. Historically, the doctrine had dealt
with hundreds of youth cases in its time, concluding when necessary (upon the
individual merits of the child) whether a child was capable of understanding the
nature of his actions to be held criminally culpable. 63
Thus far, it could be claimed the doctrine of doli incapax served its purpose in relation
to Straw’s proposition in being able to punish young offenders for committing
criminal offences. The murder convictions of Venables and Thompson was clearly
indicative of the doctrine’s ability to perform in a manner which inculpates rather
exculpates children for their criminal behaviour. 64 Even if it could have been
established (with the use of the doctrine of doli incapax) the defendants’ did not
understand their heinous actions; the doctrine of doli incapax upon this basis could
56 Gorrie (1918) 83 J.P 136
57 A v DPP (1992) Crim LR 34
58 W (A Minor) v DPP (1996) Crim LR 320
59 Ibid note. 58
60 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) 4 LRC 411
61 Ibid note. 60
62 Ibid note. 60
63 See A v DPP (1992) Crim LR 34
64 Supra note. 60