Judgments - R v JTB (Appellant) (on appeal from the Court of Appeal (Criminal Division))

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30.  The Consultation Paper stated that the Government’s preference was to abolish the presumption (and thus the defence). This remained its choice after consultation. In November 1997 the Secretary of State for the Home Department presented to Parliament a White Paper, “No More Excuses: A new approach to tackling youth crime in England and Wales”. This made it quite plain that the Government intended to abolish the defence of doli incapax, describing the notion as “contrary to common sense". It spoke once again of abolishing the presumption rather than reversing it in terms that made it plain that the former involved abolition of the defence.

31.  When the Crime and Disorder Bill passed through Parliament, the same terminology was used in debate to the same effect. During the committee and report stages of the Bill’s passage through the House of Lords, Lord Goodhart QC twice moved amendments which were designed to reverse the presumption rather than abolish it: on 12 February 1998 he moved to amend the relevant clause (clause 27) by inserting:

“Where a child aged 10 or over is accused of an offence, it shall be a defence for him to show on the balance of probabilities that he did not know that his action was seriously wrong.” (Amendment 174: Hansard, House of Lords Debates, 12 February 1998, col 1316).

When moving this amendment Lord Goodhart QC stated:

“I must say that I think the complete abolition of the doli incapax rule is wholly inappropriate. If the government are not prepared to consider the possibility of raising the age of criminal responsibility, a better solution would be that which is in fact set out in Amendment No 174: that is not to abolish the presumption but in effect to reverse it.” (Hansard, House of Lords Debates ,12 February 1998, col 1316).

Lord Williams of Mostyn responded to the proposed amendment on behalf of the Government. In rejecting the proposal he stated:

“…we consulted widely. We put forward our consultation document ‘Tackling Youth Crime'. Of the 180 who responded on this point, 111 felt that the presumption should be abolished; 48 felt that it should be reversed; and 21 felt that it should be retained in its current form.” (Hansard, House of Lords Debates, 12 February, col 1324).

Lord Goodhart QC withdrew the proposed amendment.

32.  On 19 March 2008 Lord Goodhart QC proposed the same amendment. He said “we seek not to abolish the rule, but to modify it". He stated:

“If we are to retain an age of criminal responsibility as low as 10, what is needed is an intermediate stage. We should not jump straight from no criminal responsibility at the age of nine to full responsibility at the age of 10. We need to protect 10 or 11 year olds who do not understand that what they are doing is seriously wrong. We should do so by allowing the defence to raise and prove, on the balance of probabilities, that the child in question did not have the capacity to understand that what he or she was doing was seriously wrong…I believe this amendment would improve the Bill as regards the protection of children of 10 and 11 years old who will not be adequately protected if the existing law of doli incapax is removed and nothing put in its place.” (Hansard, House of Lords Debates,19 March 2008, cols 830-831).

Lord Williams opposed the amendment. He stated:

“My Lords, there does not seem to be any disagreement that the ancient presumption is in need of reform. Therefore, the question seems to be: should it be reserved or should it be abolished? When we were deciding how best to proceed we considered whether reversal or abolition was the better course. We put it out to consultation. I respectfully remind your Lordships of what I said earlier. Of those who responded to the consultative paper ‘Tackling Youth Crime‘, 111 out of the 180 who expressed a view said that abolition was appropriate.” (Hansard, House of Lords Debates, 19 March 2008, col 836).

33.  The import of the wording of the clause that was to become section 34 was quite clear. This was demonstrated by the following statement by Mr Clappison on behalf of the opposition in a standing committee debate in the House of Commons on 12 May 1998

“We have given careful consideration to the proposal to abolish the presumption. We know that some quarters have argued that the presumption should be reversed and that a child or his legal representatives should show that the child does not know the difference between right and wrong. We have listened to judicial authority and to practitioners and, on balance, we think that it is right that the rule should be abolished. We shall not oppose the Government…”

A different impression

34.  In the course of the Second Reading of the Bill in the House of Lords, Lord Falconer of Thoroton, the Solicitor General, made the following comment:

“The possibility is not ruled out, where there is a child who has genuine learning difficulties and who is genuinely at sea on the question of right and wrong, of seeking to run that as a specific defence. All that the provision does is remove the presumption that the child is incapable of committing wrong.” (Hansard, House of Lords Debates, 16 December 1997, cols 595-596).

In so far as this suggested that the relevant clause would not abolish the defence of doli incapax, this statement was at odds with the other Ministerial statements to which I have referred. Professor Nigel Walker none the less fastened on Lord Falconer’s comment as indicative of the Government’s intentions, in an article entitled “The End of an Old Song” (1999) 149 NLJ 64. He suggested that the effect of section 34 was to abolish the presumption but not the defence. A similar view was expressed, obiter, by Smith LJ after a detailed and careful study of background material that was the product of her own researches in Director of Public Prosecutions v P [2007] EWHC 946 (Admin); [2008] 1 WLR 1005.

Conclusions

35.  As I remarked at the outset, the result of this appeal cannot be deduced from the language of section 34 alone. It is a legitimate aid to the interpretation of that section to look, as I have done, at the mischief that the section was designed to obviate. It is a legitimate aid to construction to have regard to the fact that the phrase “presumption of doli incapax” was widely used to embrace both the presumption and the defence. I further consider that this is one of the rare cases where it is both legitimate and helpful to consider Ministerial statements in Parliament under the principle in Pepper v Hart [1993] AC 593. In issue is the meaning of a single short section of the Act. The meaning of that section is, when read in isolation, ambiguous. The clause that was to become the section was debated at some length in Parliament. An amendment was moved to it on two occasions in the House of Lords. Consideration of the debates discloses Ministerial statements that made the meaning of the clause quite clear, with the exception of the one statement by Lord Falconer. Furthermore, the proposed amendment was moved on the premise that the clause, as drafted, would abolish not merely the presumption but the defence of doli incapax. Parliament was in no doubt as to the meaning of the clause, in part perhaps because in the Consultation Paper and the White Paper that preceded the legislation the Home Office had made it quite clear what was meant by abolition of the presumption of doli incapax.

36.  For these reasons I have concluded that the trial judge and the Court of Appeal were correct to hold that section 34 abolished the defence of doli incapax and that, accordingly, this appeal should be dismissed.

LORD RODGER OF EARLSFERRY

My Lords,

37.  I have had the advantage of considering in draft the speech of my noble and learned friend, Lord Phillips of Worth Matravers. While I should have been inclined to reach the same result without reference to the passages in Hansard, as he has shown, they put the position beyond doubt. Accordingly, in full agreement with him, I would dismiss the appeal.

LORD CARSWELL

My Lords,

38.  I have had the advantage of reading in draft the opinion prepared by my noble and learned friend Lord Phillips of Worth Matravers. For the reasons which he has given, with which I agree, I would dismiss the appeal.

39.  I would only add that, like my noble and learned friend Lord Rodger of Earlsferry, I might have been inclined to reach the same result solely on construction of the section and taking account of the mischief and of the consequences of the legislation.

40.  I do consider, however, that it is a legitimate case for the House to consider the Parliamentary materials, which in my view settle the matter conclusively. I would myself place most weight on the fact that Lord Goodhart QC twice moved an amendment designed to reverse the presumption of doli incapax rather than abolish it, the construction of the Act for which the appellant’s counsel argued in the appeal before the House. It was firmly opposed by the Government, with the consequence that on the first occasion Lord Goodhart withdrew the amendment and on the second the proposed amendment was rejected on a vote. Although such Parliamentary history was regarded as inadmissible before Pepper v Hart [1993] AC 593 (see Viscountess Rhondda’s Claim [1922] 2 AC 339, 383, per Viscount Haldane), it is now possible in appropriate cases to take it into account as an aid to ascertaining the intention of Parliament. In my opinion the rejection of the proposed amendments is very cogent evidence of intention, stronger even than the statements of Ministers, and it puts the conclusion beyond doubt.

LORD BROWN OF EATON-UNDER-HEYWOOD

My Lords,

41.  I have had the advantage of reading in draft the opinion of my noble and learned friend, Lord Phillips of Worth Matravers. I agree with it and for the reasons he gives I too would dismiss the appeal.

42.  I agree not least that this is one of those comparatively rare cases where weight may legitimately be put upon the Parliamentary materials. Amongst these I share my noble and learned friend, Lord Carswell’s view that the most telling are Lord Goodhart QC’s two unsuccessful proposed amendments to the Bill (see paras 31 and 32 of Lord Phillips’ opinion)—amendments designed to achieve the very result which the appellant is driven to contend was nevertheless achieved despite their failure.

43.  In this connection it is perhaps worth recalling the use made by Lord Nicholls of Birkenhead in R (Jackson) v Attorney General [2006] 1 AC 262, 292 of similar proposed but unsuccessful amendments to what became section 2 of the Parliament Act 1911: “These ministerial statements [resisting the amendments] are useful in practice as confirmatory evidence of the object sought to be achieved by section 2. Transparency requires this should be recognised openly.” (para 66)

LORD MANCE

My Lords,

 
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