Consideration of the proper requirements for the rebuttal of the common law presumption of doli incapax when a defendant is being treated as below the age of 14.
PF was charged with six counts of sexual offences committed against his two sisters between 11 May 1979 and 7 July 1983, when he would have been aged between 10 years and 4months and 14 years and 6 months. It was unclear when the offences occurred during that period, therefore the jury was directed to treat him as below the age of 14 meaning the rebuttable presumption of doli incapax applied to all counts.
PF was convicted by the jury on one count of indecent assault and one count of indecency with a girl under 14. He was acquitted of one count of indecent assault by jury verdict and he was acquitted of the other counts following successful submissions of no case to answer.
The judge gave written directions to the jury with a direction on doli incapax as follows:
"In order to convict the Defendant of the individual count you are considering, the prosecution must make you sure that:
a) the genital touching took place in the way described on the indictment and
b) he knew at the time that right thinking people would say touching his sister in this way (or her doing so to him) was indecent and
c) he knew at the time that this act was seriously wrong not merely naughty or mischievous."
The single ground of appeal was that the judge had misdirected the jury on doli incapax in that although he had directed of (a) and (b); he failed to direct that to be satisfied of (b), there had to be clear positive evidence to that effect distinct from the doing of the alleged act itself as the final element. The importance of this final element had been made clear in R v M(D)  EWCA Crim 674. This judgement was delivered prior to the commencement of PF's trial and Counsel acknowledged being unaware of it and so the judge was not referred to it.
At the appeal stage all parties accepted that in light of the decision in M, the judge's directions were defective but the Crown argued there had been evidence of the Appellant's coercive and bullying behaviour extending beyond the evidence of the offences which the jury had been reminded of thus inviting them to take it into count. It was submitted that this was equivalent to a full direction on rebuttal of the presumption along the lines now required in M. For the Appellant, it was simply submitted that notwithstanding this evidence of bullying and coercion, the convictions remained unsafe in the absence of the full requisite direction.
It is particularly important to focus the jury's attention upon the evidence said to be properly capable of demonstrating that the particular defendant must have known that his conduct went well beyond the mere "rude or naughty" and to direct them that they must be satisfied by that evidence that the defendant knew that what he did was seriously wrong in the relevant sense.
Convictions found unsafe and appeal allowed.
8 September 2017