Ivan Ray May’26

doli incapax’, all sounds too cute by half. Still, this legal principle from over 400 years ago is nothing but an embarrassment for any government that supports it, let alone the judiciary.

The doctrine of doli incapax (Latin for “incapable of wrongdoing”) was not introduced at a single fixed date in the way modern statutes are. Instead, it developed gradually in the early stages of the common law.

Doli incapax, emerged in English common law by at least the 17th century (1600s), and was already well‑established by the 18th century. [mylawquestions.com], [legalclarity.org]

The idea comes from ancient legal traditions, influenced by Roman law and early medieval English law. [researchpo…bria.ac.uk] from an era referred to by academics as the’ Dark Ages’.

With that pedigree, the concept of Doli incapax should have been relegated to History decades ago.

• It developed into a clear doctrine in English common law, where:
  • Children under 7 were completely incapable of committing a crime
  • Children aged 7–14 were presumed incapable unless proven otherwise [legalclarity.org], [en.wikipedia.org]
• By the time of Blackstone’s Commentaries (1760s), this structure was already firmly recognised in law. [legalclarity.org]

That means the doctrine was effectively part of the legal system centuries before modern legislation, rather than being “introduced” by a single Act. In the 17^th Century.

So here we are, some 400 years later,  applying this antiquated legal principle to a feckless thirteen-year-old girl, that even in those dark ages would have at least been required to prove that she didn’t know she was doing wrong.

In the 17^th century, there were no State schools for the lower classes. Moral and legal education of children was in the hands of mostly illiterate parents.  That is no longer the case, and if schools are not filling the void, we need to ask ‘Why’?

Whilst we like to feel that our legal system is current and can be relied upon to deliver Justice, by and large successfully, this ancient hangover drags the Justice system backwards.

The emotional argument that locking up kids is somehow immoral has many flaws.

The flawed argument promoted is that it’s aimed at saving children from themselves.

How does putting children who are addicted to crime back on the streets to reoffend, save them from themselves?

Committing a serious crime is inherently very dangerous to the perpetrators as it is to the victim.

Will it take the death of a child to make legislators realise the dangers to the children, let alone the community?

It is worth remembering that when Doli incapax evolved, cars and access to technology and a range of other innovations had not been considered, let alone developed.

To provide legislation to remove the defence of Doli incapax may seem an overreach, but the example of the 13-year-old committing 109 offences, of a serious nature, is a case that highlights the folly of persistence with this ancient concept.

What is overlooked is that this principle is applied prior to any evidence being tested, so the evidence of the allegations is never tested.

• The many victims of the child will continue to live in fear and without closure.
• No action to change the behaviour of the child is mandated.
• The impact on this case on any young person with aspirations for criminal notoriety, is manna from heaven.

It is noteworthy that when Doli incapax was created around 460 years ago there was no social media for young people to communicate. That didn’t happen until the 2000’s, some 400 years later, so the adverse impact on the deterrent factor of this public information has only started to be felt.

This phenomenon will increase as the young people see the outcome of the criminality and know that their age entitles them to do what they like, as they aspire to be like their role models in the criminal sphere. One of the preeminent driving forces for Juvenile crime.

It is not unreasonable to predict that applying the Doli incapax rule will have a severe and lasting adverse impact on the young accused.

These include.

• Without consequences for their actions, the likelihood of making the child bulletproof to the impact of the law will promote further and escalating lawless activity.
• The child will continue to be exposed to extremely dangerous behaviours likely to have disastrous consequences for the well-being of the child as well as the victims.
• The risks to the community from this child’s behaviour are unacceptable.
• This 13-year-old will be highly regarded by her peers, who are also on the cusp of lawlessness.
• She has been handed the ability to recruit and lead other children down her criminal path.

The sentence of Doli incapax imposed on this child by the ‘Justice’ system will ensure she never makes old bones.

That a criminal is young should only impact the sentence, and that is a matter for the courts and can only be applied if they are convicted.

Furthermore, to compare the mental acuity of a child of the 1600’s to children of today is disingenuous at the very least.

From their physical development through nutrition to their mental development through education and access to social media, they are light-years ahead of their early peers.

The community, however, is well attuned to the development of young people, and anyone who has experience with young people will attest to their knowledge of right from wrong and what is criminal is well entrenched.

We call on all politicians to make the necessary legislative changes to consign this antiquated principle to history where it belongs.

Leave the matters of adjudicating evidence-based justice to the Jurists, not legal bureaucrats.

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