Law Report: Presumption no longer English law: Curry v Director of Public Prosecutions. Queen's Bench Divisional Court (Lord Justice Mann and Mr Justice Laws), 29 March 1994

The rebuttable presumption that a child between the ages of 10 and 14 charged with a criminal offence does not know that what he did was seriously wrong is unreal and contrary to common sense and is no longer part of English law.

The Divisional Court dismissed an appeal by case stated by Liverpool justices who convicted the defendant of an offence of interfering with a motor cycle with the intention to commit theft.

The Divisional Court certified a question of general public importance and granted leave to appeal to the Lords.

The defendant, aged 12, and another boy were seen tampering with a motorcyle in a private driveway and ran from the police. The justices rejected the submission that the defendant was presumed by the law to be doli incapax (incapable of wrong). The defendant appealed against conviction, relying on the rebuttable presumption that a defendant between the ages of 10 and 14 does not know his act is 'seriously wrong' as opposed to 'merely naughty' and contending that the prosecution had not rebutted the presumption.

Andrew Nicol (RM Broudie & Co, Liverpool) for the defendant; JT Parry-Jones (CPS) for the prosecution.

LORD JUSTICE MANN said that the cases demonstrated that if the presumption was to be rebutted there must be clear positive evidence that the defendant knew his act was seriously wrong. On that basis the appeal must succeed if the presumption remained part of our law.

The presumption at the present time was a serious disservice to our law. It meant that a child over 10 who committed an act of obvious dishonesty, or even grave violence, was to be acquitted unless the prosecution specifically proved by discrete evidence that he understood the obliquity of what he was doing. It was unreal and contrary to common sense. The presumption was in principle objectionable. It was no part of the general law that a defendant should be proved to appreciate that his act was 'seriously wrong'. The requirement was also conceptually obscure. The cases indicated that the presumption might be rebutted by proof that the child was of normal mental capacity for his age. If that was right, the effect of the presumption was that a defendant under 14 was presumed to possess a subnormal mental capacity and for that reason to be doli incapax. There could be no justification for such a bizarre state of affairs.

It must be regarded as obvious that where a morally impoverished upbringing might have led a teenager into crime, his background should go not to his guilt, but to his mitigation.

The philosophy of criminal punishment had changed since the days when the criminal law was more Draconian. The presumption now had no utility. It ought to go. The question whether the presumption should remain part of our law had never fallen for distinct argument, so the court was entitled to depart from the unargued premise behind earlier decisions. The presumption was no longer part of the law of England.