Presumption Of Doli Incapax Research Articles

The Logic and Value of the Presumption of Doli Incapax (Failing That, an Incapacity Defence).

Children who do not understand the serious wrongness of their actions lack criminal capacity and cannot be convicted. At common law, children under seven are deemed to lack criminal capacity, children over 14 possess full capacity and children between seven and 14 are rebuttably presumed to lack capacity; the prosecution must prove capacity beyond reasonable doubt. Australia has increased the minimum age of criminal responsibility (MACR) to 10 and is considering a further increase. England & Wales and Northern Ireland have raised the MACR to 10 but have abolished the rebuttable presumption: at age 10, all children are assigned full criminal capacity. This article agrees with international calls for the MACR to be raised but argues that it is more important that the rebuttable presumption should be retained and extended. Children's brains and decision-making capacities continue to develop throughout their teenage years at different rates. The rebuttable presumption provides individualised justice for children facing developmental difficulties. To wrongfully convict a child who lacks capacity will unjustly damage their life chances. Where a child does have capacity, a variety of evidence may be available to the prosecution to prove it. If the prosecution fails to discharge the burden, the child should be acquitted. The acquittal may be mistaken, but this error is far less harmful than a wrongful conviction.

Criminal responsibility of older children: The failings of doli incapax in Australia

AbstractCriminal law balances community protection from children who commit criminal offences against supporting children to behave appropriately. Existing Australian law applies the rebuttable presumption of doli incapax to children from 10 years of age and then applies full criminal responsibility to children from 14 years of age. Imposing full criminal responsibility on older children is problematic because it does not account for their cognitive development, social and environmental risk factors and maturity. Extending doli incapax to older children is one response to address the challenges of older children's criminal culpability but it does not go far enough to protect children from the harms of the criminal justice system.

Four thresholds of doli incapax in Australia: Inconsistency or uniformity for children’s criminal responsibility?

The presumption of doli incapax is a legal safeguard for children who contravene the criminal law. Four distinct thresholds emerge from the application of doli incapax across the Australian jurisdictions: actual knowledge that the offending conduct was ‘seriously wrong’; actual knowledge that the offending conduct was ‘wrong’; capacity to know that the offending conduct should not occur; and capacity to know that the offending conduct was ‘seriously wrong’. This article explores differences in the four doli incapax thresholds and suggests a uniform approach to the presumption is required to correct the jurisdictional inconsistency.

A Child’s Capacity to Commit Crime: Examining the Operation of Doli Incapax in Victoria (Australia)

The rebuttable presumption of doli incapax is available in all Australian states and territories and provides that, where a child is unable to comprehend the distinction between actions that are ‘seriously wrong’ and those that are ‘naughty or mischievous’, they cannot be held criminally responsible for their actions. Despite the key role that doli incapax should play in diverting the youngest offenders away from the criminal justice system, its operation to date has been largely unexamined. This article seeks to directly address this gap. Drawing on the experiences of those involved in all aspects of the youth justice system, this article examines the need for, and the effectiveness of, the presumption of doli incapax in Victoria, Australia. Revealing inconsistencies in the use of the presumption, the article also examines the need for future reform of this area of law.

Children in the Criminal Justice System

In two decisions handed down in 2016, the High Court of Australia considered legal measures designed to deal with children in the criminal justice system in an age-appropriate manner. The first case, R v GW, was a prosecution appeal involving the unsworn evidence of a child witness. In this decision, the High Court reviewed the common law and statutory background to unsworn evidence, and gave important guidance on the proper approach to dealing with such evidence in proceedings. The second case was RP v The Queen, which involved the criminal responsibility of a child defendant, and in particular the application of the doli incapax presumption. In this decision, the High Court reviewed the common law background to doli incapax, and gave guidance on its application in criminal proceedings. This commentary discusses both cases and the principles underlying the High Court’s reasoning.

The Minimum Age of Criminal Responsibility in Victoria (Australia): Examining Stakeholders’ Views and the Need for Principled Reform

In Australia, children as young as 10 are charged, convicted and sentenced for breaches of the law. Drawing on interviews with youth justice professionals in Victoria, this study finds that inconsistencies in practice undermine the extent to which the common law presumption of doli incapax offers an effective legal safeguard for very young children in conflict with the law. This article advocates that the Australian minimum age of criminal responsibility be increased to 14, that the principle of doli incapax be applied consistently to all persons under the age of 18 and that justice responses be supplanted by therapeutic supports for children and families.

Apophyseal Ossification of the Iliac Crest in Forensic Age Estimation: Computed Tomography Standards for Modern Australian Subadults.

This study contrasts the ontogeny of the iliac crest apophysis using conventional radiography and multislice computed tomography (MSCT), providing probabilistic information for age estimation of modern Australian subadults. Retrospective abdominopelvic MSCT data acquired from 524 Australian individuals aged 7-25 and surveillance radiographs of adolescent idiopathic scoliosis patients included in the Paediatric Spine Research Group Progression Study (n=531) were assessed. Ossification scoring of pseudo-radiographs and three-dimensional (3D) volume-rendered reconstructions using Risser (1958) quantitative descriptors indicate discrepancies in age estimates, stage allocation, and conflicting morphological progression. To mitigate visualization limitations associated with two-dimensional radiographs, we provide and validate a modified 3D-MSCT scoring tier of ossification, demonstrating complete fusion between 17.3-19.2 and 17.1-20.1years in males and females. Legal demarcation for doli incapax presumption and age of majority (18years) can be achieved using probability estimates from a fitted cumulative probit model for apophyseal fusion using the recalibrated standards.

The common law influence over the age of criminal responsibility – Australia

This article explores how Australian jurisdictions came to have an approach to the age of criminal responsibility similar to that which existed in England and Wales until 1998. It discusses recent debates in Australia about reforming the minimum age of criminal responsibility and the presumption of doli incapax. This shows that while there has been criticism of the presumption of doli incapax within Australia no jurisdiction has taken the English step of abolishing it. It finds that a greater challenge to the presumption of doli incapax may, however, come from calls for an increase in the minimum age of criminal responsibility to the age of 12. While several common law countries have raised the minimum age level to 12 (as called for by the UN Committee on the Rights of the Child), they have also abolished the presumption of doli incapax, thus reducing protection for 12- and 13-year-olds. This article argues that unless the minimum age of criminal responsibility is raised to 14 or 16, as preferred by the UN Committee, there are good reasons to retain the presumption of doli incapax.

Reforming the age of criminal responsibility

This article discusses the age at which criminal responsibility should begin and whether there is still a need for the rebuttable presumption of doli incapax. It clarifies the various meanings given to the concept of the age of criminal responsibility and considers its importance. Some common law countries have moved away from the traditional position of a minimum age level of 7 years and a rebuttable presumption of doli incapax from 7 years until 14 years. In doing so, there has been a tendency to raise the minimum age of criminal responsibility to 12 years and abolish the rebuttable presumption of doli incapax. After analysising these changes, the article argues that there is still a place for this presumption unless and until the minimum age of criminal responsibility is raised to the level preferred by the United Nations Committee on the Right of the Child.

Protections for children before the law: An empirical analysis of the age of criminal responsibility, the abolition of doli incapax and the merits of a developmental immaturity defence in England and Wales

The law’s response to child offenders has long animated debate and sparked doctrinal law reform in England and Wales. The provision of legal protections for children in trouble with the law has been central to such debates, and questions surrounding the age at which a child should be held criminally responsible remain a contested area of law both domestically and internationally. In 1998 England and Wales abolished the presumption of doli incapax and retained the minimum age of criminal responsibility at 10 years old; two years below the United Nations’ recommended standard. This article examines the legal protections provided for child offenders under English criminal law with a focus on the adequacy of the age of criminal responsibility, the now abolished presumption of doli incapax and the merits of a developmental immaturity defence. Drawing on data obtained from interviews conducted with members of the English criminal justice system, this article analyses the extent to which legal practitioners perceive that the existing provisions are adequate and concludes by reinvigorating debate surrounding the need for future review and reform.

Deliberating the minimum age of criminal responsibility

The year 2015 marks 5 years since the implementation of the Child Justice Act No. 75 of 2008 in South Africa (Republic of South Africa, 2008). The Act was the country's first comprehensive legislation aimed at addressing children in conflict with the law. Among other provisions, this legislation raised the minimum age of criminal responsibility from 7 to 10 years, and included a rebuttable presumption of doli incapax (i.e., incapability of formulating criminal intent) for children between the ages of 10-14 years.

DETERMINATION OF CRIMINAL CAPACITY FOR CHILD OFFENDERS – INTERFACING THE PROCEDURAL REQUIREMENTS OF THE CHILD JUSTICE AND CRIMINAL PROCEDURE ACT

This submission considers the effect of the doli incapax presumption contained in the Child Justice Act on the procedural reality of South African child-justice process. We further consider Chapter 13 of the Criminal Procedure Act as it pertains to child offenders, both those considered rebuttably incapax, and those to whom the question of age-based capacity do not apply. We conclude that the doli incapax provisions, when interfaced with the tenets of the Criminal Procedure Act, that address mental pathology, are incompatible in so far as they pertain to child justice.

Assessing Serious Harm Under the Doctrine of Doli Incapax: A Case Study

The doctrine of doli incapax has become controversial in recent decades, with attempts to remove it in some countries, and with varying upper and lower limits in age applied. One construction of doli incapax refers to the accruing maturity of the child to the point where mens rea is achieved. This article explores the tension between developmental and legalistic notions of how children come to understand what is “seriously wrong” and refers to a case study in which a developmentally delayed young person was charged with a sexual offence. The tension between chronological and mental age, the impact of mental age on moral reasoning, and how to assess retrospectively what a child might or might not apprehend as seriously wrong is discussed. The argument concludes with a call to consider legislative change to incorporate mental age when considering age thresholds for the presumption of doli incapax in Australia.

Doli Incapax and Its Vicissitudes: Childhood and Criminal Responsibility in England, Germany and Australia

This paper examines the various ways in which the criminal responsibility of children has been understood in England, Australia and Germany, developed a comparative legal culture analysis of the legal construction of childhood and moral community. It examines whether we have been able to lay the social foundations for the political, moral and legal capacity to reflect on the normative complexities of crimes committed by children and what they mean for all of us as a moral community, rather then approaching them with an over-simplified model of full, isolated and individual legal subjectivity. It argues that the abolition of the doli incapax presumption and the reduction of the age of criminal incapacity simply makes particular children bear the full weight of the social disappointment in the disjunction between ideal and real children. Only a social order which promotes a considered engagement with the complexities of concepts such as doli incapax and Strafunmundigkeit within a changing social construction of childhood, one which allows us to disentangle societal concerns with the guilt and innocence of an abstract ‘childhood in general’ from the practical response to particular real children, will begin to provide a foundation for approaching it with some civilized integrity.

Naughty or bad? The role of expert evidence in rebuttal of the doli incapax presumption

An attempt to rebut the doli incapax presumption (that a child between 10 and 14 years is incapable of forming criminal intent) requires the court to consider the child defendant's understanding of the wrongfulness of his behaviour. At present there is no direct method of examining that understanding. The court instead relies on indirect evidence of the child's knowledge. Expert assessment of the child defendant can provide direct evidence of his or her understanding which, together with indirect evidence, may assist the court in determining whether the presumption is rebutted. Psychological and psychiatric literature is reviewed to provide criteria for that assessment.

Abolition of the Presumption of Doli Incapax and the Criminalisation of Children

The criminal responsibility of children is on the parliamentary agenda in the Crime and Disorder Bill which contains a provision to abolish the presumption of doli incapax for children aged 10 to 13. This article examines the operation of the presumption of doli incapax and considers issues raised by the proposal for its abolition. It is argued that rather than abolish it, it should be retained and taken seriously as recognition of the protection which the law should be affording to children.

Rebutting the Presumption of Doli Incapax

Rebutting the Presumption of Doli Incapax