Was the Abolition of the Doctrine of Doli Incapax Necessary 1 UK Law Students Review 2012-2013

About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

1 UK L. Students Rev. 50 (2012-2013)
Was the Abolition of the Doctrine of Doli Incapax Necessary

handle is hein.journals/uklwetrew1 and id is 159 raw text is: WAS THE ABOLITION OF THE DOCTRINE OF DOLT INCAPAX
NECESSARY?
Hannah Wishart, Manchester University
Abstract: This article considers how the 1997 New Labour election has changed what
it means to hold children criminally responsible in the criminal law. In order to do so,
this article will focus on examining New Labour's decision to abolish the
longstanding doctrinal defence of doli incapax via asking whether the abolition of the
doctrine of doli incapax was necessary and founded upon proper grounds given the
low age of criminal responsibility imposed. As a result of such an enquiry it will be
revealed legal academics are still questioning the doctrine's existence in the criminal
law more than 15 years after its abolition.
I - Introduction
Since New Labour succeeded as the new elected Government in 1997 the Youth
Justice System in England and Wales has been subjected to numerous changes.' One
of the biggest changes to the youth justice system came in the immediate aftermath of
the 1997 Government election when, the then Shadow Home Secretary, Jack Straw
MP, proposed a 'six point policy plan for juvenile crime and disorder'.2 In his speech,
Jack Straw proposed that the 'New Labour' Government were determined to
encapsulate a future where 'young offenders plans to promote better parenting in the
family home to tackling anti-social behaviour.3 It was the Government's decision to
endorse a 'No More Excuses'4 mentality through axing the common law defence of
doli incapax5 which is the focus of this article. The reason why this decision was
greeted with such widespread concern was because the Government was moving
away from thinking of children as victims in need of 'welfare' protection within the
law, for a political inspired conception of children which encompassed a promise:
'tough on crime, tough on the causes of crime'.6 Jack Straw presented the above
agenda through New Labour's fourth policy point as follows:
At present we have medieval law-doli incapax- which assumes that
youngsters 10-13 are incapable of evil unless the prosecution can
prove the reverse. This legal presumption makes it very difficult for
youth courts to convict young offenders and start the process of
changing their offending behaviour.7
When it was announced the doctrine of doli incapax would be removed from the remit
of the criminal law, as mentioned, it caused much widespread concern in the legal
1 The Independent Commission on Youth Crime and Antisocial Behaviour, Responding to Crime and
Antisocial Behaviour, 2010, pp.1 1-12
2 Home Office, Crime Justice and Protecting the Public, (HMSO, 1990) CM 965, at para 8.3
3 Supra note. 2
4 Home Office, No More Excuses, (HMSO, 1997a) p.1
5 House of Commons Debates 19th May, 1997, Column 387.
6 Home Office, No More Excuses, (HMSO, 1997a) p. 1
7 Supra note. 4