CAPACITY
Capacity
AIMS AND OBJECTIVES
After reading this chapter you should be able to:
Understand the limitations on liability of children in criminal law
Understand the effects a person’s mental state may have on their criminal liability
Understand the concept and basic principles of vicarious liability in the criminal law
Analyse critically the concept of vicarious liability
Understand the basic principles of corporate liability in the criminal law
Analyse critically the need for corporate liability and the tests used in establishing it
There are some circumstances in which the law rules that a person is not capable of committing a crime. The main limitations are on:
children under the age of 10
mentally ill persons
corporations
On the other hand, there are some circumstances in which a person may be liable for the actions of another under the principle of vicarious liability.
Capacity to commit a crime is important, as one of the principles of justice is that only those who are blameworthy should be liable for their crimes. Without capacity to understand or be responsible for his actions, a person has no moral blame. For this reason English law recognises categories of those without capacity and they are generally not held to be criminally responsible for their actions. This means that if, for example, a five-year-old child takes some sweets from a counter in a shop, he cannot be guilty of theft. He has done the actus reus of theft (appropriation of property belonging to another), but the law automatically assumes that he is not capable of forming the necessary mens rea.
7.1 Children
7.1.1 Children under the age of 10
The age of criminal responsibility in England and Wales is 10. This age was set by the Children and Young Persons Act 1933, which states in s 50 that:
SECTION
‘50 It shall be conclusively presumed that no child under the age of ten years can be guilty of any offence.’
This is known as the doli incapax presumption. Children under the age of 10 cannot be criminally liable for their acts. This conclusive presumption that a child under 10 cannot commit a crime means that those who use children to do the act of an offence are liable as principals, rather than as secondary participants in the offence. For example, if two teenage boys get a child aged eight to enter into a house through a small window and bring out to them money or other valuables, the eight-year-old cannot be guilty of burglary. Normally anyone who waited outside during a burglary would be a secondary participant in the offence, but in this case the teenagers are guilty as principal offenders.
Prior to the Children and Young Persons Act 1933 the age of criminal responsibility in England and Wales was eight. This was thought to be too low. The age of 10 is now the lowest age of criminal responsibility in any Western European country, and many critics think that it should be increased to 12. In fact as long ago as 1960 the Ingelby Committee, Cmnd 1911 (1960) recommended that it should be increased to 12 in England and Wales.
Recently Heather Keeting has itemised criticism of the age made by major bodies in her article ‘Reckless children’ [2007] Crim LR 547:
QUOTATION
‘The Government has increasingly come under fire both internationally and domestically in relation to this low age of criminal responsibility: the United Nations Committee on the Rights of the Child; the European Committee on Social Rights which stated in 2005 that the age of criminal responsibility “is manifestly too low and … not in conformity with Article 17 of the [Social] Charter” which assures the right of children to social and economic protection.’
She also points out that the low age of responsibility is in breach of human rights. In 2003 the Parliamentary Joint Committee on Human Rights criticised the age in their Tenth Report of Session 2002–03 HL1 17/High Court 81 at paras 35 to 38. Also, in 2006, the Council of Europe Commissioner for Human Rights commented on the low age in a speech, ‘The Human Rights Dimension of Juvenile Justice’.
Interestingly, Scotland used to have an even lower age of criminal responsibility at eight years of age. However, in 2010 the Scottish Executive passed the Criminal Justice and Licensing (Scotland) Act in the Scottish Parliament which raised the age to 12 in Scotland.
Care orders
Children under 10 who have committed criminal-type behaviour can be dealt with in other ways. The local authority can bring proceedings in the family court under s 31 of the Children Act 1989 asking for an order that the child be placed in the care of the local authority or for an order placing the child under the supervision of the local authority or a probation officer. Such an order will only be made if it is in the interests of the child’s welfare and the court is satisfied under s 31(2) of the Children Act 1989:
SECTION
‘31(2)(a) that the child concerned is suffering, or is likely to suffer, significant harm; and
(b) that harm, or the likelihood of harm, is attributable to —
(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
(ii) the child’s being beyond parental control.’
7.1.2 Child safety orders
The other area where the law allows orders to be made in respect of children under 10 is in respect of child safety orders under s 11 of the Crime and Disorder Act 1998. This focuses on behavioural problems of the child and an order can be made if:
the child has committed an act which, if he had been aged 10 or over, would be an offence or
a child safety order is necessary to prevent the child committing an act which, if he had been aged ten or over, would be an offence.
The local authority has to apply to a Magistrates’ Family Proceedings Court for an order. If it is granted the magistrates can place the child under the supervision of a social worker or a member of a youth offending team for a period of up to three months. This period can be extended to 12 months if the court is satisfied that the circumstances of the case are exceptional. The magistrates can also add on other conditions.
Child safety orders are aimed at preventing children from becoming criminal offenders when they are older.
7.1.3 Children aged 10 and over
In the legal system there are different terms for different age groups. These are the following:
Those aged 10 but under 14 are known as ‘children’.
Those aged 14 but under 17 are known as ‘young persons’.
Those offenders aged 14 but under 21 are known as ‘young offenders’.
Until 1998 there was a rebuttable presumption that those aged 10 to 13 inclusive were doli incapax. This meant that they were presumed not to be capable of committing an offence but the prosecution could rebut this presumption by bringing evidence that the child knew that what he did was seriously wrong. The need for such a presumption was challenged by the Queen’s Bench Divisional Court in C v DPP (1995) 2 All ER 43.
CASE EXAMPLE
C v DPP (1995) 2 All ER 43
D, a boy aged 12, was seen tampering with a motorcycle and, when challenged, ran away. The prosecution relied on the fact that he had run away as evidence that he knew that what he was doing was seriously wrong. The Divisional Court held that this was insufficient to rebut the presumption of doli incapax, as it could show mere naughtiness rather than a realisation that what he was doing was seriously wrong.
However, the judges in the Divisional Court thought that the presumption was out of date and should no longer be part of our law. Mann LJ said:
JUDGMENT
‘Whatever may have been the position in any earlier age, when there was no system of universal compulsory education and when perhaps children did not grow up as quickly as they do nowadays, this presumption at the present time is a serious disservice to our law … it is unreal and contrary to common sense.’
When the case was appealed to the House of Lords, they held that it was not the judges’ role to abolish such a long-standing law. If the Government thought it should be abolished, then the Government could do so democratically through Parliament. The Government did take action and s 34 Crime and Disorder Act 1998 abolished the rebuttable presumption that a child aged 10 to 13 is incapable of committing an offence.
Doubts were raised as to whether s 34 completely abolished the doli incapax rule or whether only the presumption had been abolished. Professor Walker in ‘The End of an Old Song’ (1999) 149 NLJ 64 put forward the view that all that had been abolished was the presumption that a child aged 10 to 13 did not know that his act was seriously wrong. The abolition of the presumption did not mean that the ‘defence’ of ‘ignorance of serious wrong’ had been abolished. In DPP v P (2007) EWHC 946 Admin, Smith LJ thought that it was possibly still open to a child defendant to prove that he did not know his act was seriously wrong.
However, the issue was finally settled by the House of Lords in JTB (2009) UKHL 20.
CASE EXAMPLE
JTB (2009) UKHL 20
D, aged 12 at the time of the offences, was charged under s 13(1) of the Sexual Offences Act 2003 with causing or inciting children under 13 to engage in sexual activity. When interviewed by police, D admitted the activity but said that he had not thought that what he was doing was wrong.
D wished to rely on the defence of doli incapax. The trial judge ruled that this defence was not available to him. On appeal, both the Court of Appeal and the House of Lords upheld D’s conviction. In their judgment, the House of Lords looked at the wording and the background of s 34 of the Crime and Disorder Act 1998.
Following consultation, a White Paper was issued, No More Excuses: A new approach to tackling youth crime in England and Wales (1997), which made it plain that the Government intended to abolish the defence. The Crime and Disorder Bill was then introduced into Parliament. During the passage of this Bill through Parliament amendments were proposed to reverse the presumption rather than completely abolish it. These amendments were defeated.
The Law Lords held that this legislative background showed that showed that Parliament had clearly intended the presumption to be completely abolished.
Not everyone agreed that the presumption should have been abolished. One view is that the abolition means that a child aged 10 and over is considered to be ‘as responsible for his actions as if he were 40’. This was particularly so for offences in which the concept of objective recklessness used to apply the standards of the reasonable adult and the fact that the defendant was a child was ignored. However, since G and another (2003) UKHL 50, in which the House of Lords effectively abolished the concept of objective recklessness at least as far as criminal damage is concerned, this objection is no longer valid.
In any case the normal burden of proof applies, so the prosecution has to prove the relevant mens rea for the offence charged and a child defendant, like any other defendant, will only be found guilty if he or she is proved to have had the necessary intent.
Rape cases
There also used to be an irrebuttable presumption that boys under the age of 14 were incapable of having sexual intercourse and therefore incapable of committing as principal the offence of rape or any other offence requiring proof of sexual penetration. This presumption was felt to be out of date due to the fact that physical development can be much earlier and it seemed unjust to have a rule which prevented prosecution for such serious offences. The presumption was eventually abolished by s 1 of the Sexual Offences Act 1993 and since then there have been a number of convictions for rape by boys between the ages of 10 and 13.
Trial
One way in which child defendants are dealt with differently to older offenders is that, for all but the most serious offences, children and young persons are tried in the Youth Court. The procedure here is more informal and in private. For some very serious offences, including murder, manslaughter and rape, a child defendant must be tried in the Crown Court. It is also possible for them to be sent for trial at the Crown Court where the offence would, if the defendant was an adult, carry a maximum penalty of 14 years’ imprisonment. Where a child or young person is being tried in the Crown Court, special arrangements must be made to allow him to participate effectively in the trial. In T v UK; V v UK (1999) 7 EHRR 659 it was held that if this is not done, there may be a breach of art 6 of the European Convention on Human Rights.
There are also different sentencing powers for child offenders and young offenders compared to those for adults. Most sentences for children are aimed at reforming their behaviour. However, for serious offences or for repeat offenders, custodial sentences can be imposed.
KEY FACTS
Key facts on the liability of children for criminal offences
| Age | Law | Comment |
| Under 10 | They are doli incapax, that is deemed incapable of committing a crime (s 50 Children and Young Persons Act 1933). | Is 10 the right age? Should it be raised to 12? |
| Liable to a child safety order (s 11 Crime and Disorder Act 1998) | Is the use of a child safety order merely a way round the doli incapax rule? | |
| Or does it serve a useful purpose in preventing young children from becoming criminal offenders when they are older? | ||
| 10–13 inclusive | Now fully responsible for their actions (s 34 Crime and Disorder Act 1998) and JTB (2009). | Is it right that the level of responsibility for their actions be the same as for an adult? |
| Previously there was a rebuttable presumption that they were doli incapax. | Should the rebuttable presumption have been abolished? | |
| 14–17 inclusive | Fully responsible for their actions. | Allowance for their age can be made in sentencing. |
7.2 Mentally ill persons
The defendant’s mental capacity is relevant at three different stages in the criminal justice process. These are:
at the point of the commission of the offence
at the time of trial
when the defendant is sentenced
There is also a special defence to murder of diminished responsibility, where the defendant’s mental state may provide a partial defence so that the offence is reduced to manslaughter.
7.2.1 Unfitness to plead
Even before the trial, there are procedures for dealing with mentally ill defendants. Under the Mental Health Act 1983 it is possible for a defendant who has been refused bail to be detained in a mental hospital, instead of on remand in prison. This can only occur where the Home Secretary has reports from at least two medical practitioners and is satisfied that the defendant is suffering from mental illness or severe mental impairment. The Home Secretary will only exercise this power.
QUOTATION
‘where the prisoner’s condition is such that immediate removal to a mental hospital is necessary, that it would not be practicable to bring him before a court, or that the trial is likely to have an injurious effect on his mental state.’
Report of the Royal Commission on Capital Punishment, Cmd 8932 (1953)
If the Home Secretary uses this power, then the defendant will still be brought to trial when he is well enough.
At the trial
When the defendant is brought up for trial the court may consider the question of whether he is fit to plead. This can occur whether or not the accused has been sent to a mental hospital under the power above.
The criteria for deciding whether D is unfit to plead originate from the case of Pritchard (1836) 7 Car & P 303 in which the defendant was a deaf mute. The ruling was made when there was very limited knowledge about mental illness and the effect it might have on a defendant.
The criteria set by Pritchard were restated in John M (2003) EWCA Crim 3452. They set out that D must have sufficient ability in the following six matters:
to understand the charges
to understand the plea
to challenge jurors
to instruct counsel and his solicitor
to understand the course of the trial
to give evidence if he so wishes
Where he is unable to defend himself properly because of his mental state the Criminal Procedure (Insanity) Act 1964, as amended by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 and the Domestic Violence, Crime and Victims Act 2004, allows him to be found unfit to plead.
The issue is decided by a judge without a jury. There must be evidence of at least two medical practitioners, at least one of whom is approved by the Home Office as having special experience in the field of mental disorder.
Burden of proof
If the defence raises the issue that the defendant is unfit to plead, then the burden of proof is on the defence, but it need only prove it to the civil standard of the balance of probabilities (see Chapter 1, section 1.8.2). If the prosecution raises the issue then it must prove it beyond reasonable doubt.
Finding of unfitness to plead
If the defendant is found unfit to plead then a jury must be sworn in to decide whether the defendant ‘did the act or made the omission charged against him’. This provision is in the Criminal Procedure (Insanity) Act 1964 as amended. In Antoine (2000) 2 All ER 208 it was decided that the words ‘did the act or made the omission’ mean that the jury only have to consider the actus reus of the offence. It is not necessary for the jury to consider the mental element of the crime. If the jury find that the defendant did not do the actus reus, then the defendant cannot be held under any criminal law provision, though he may still be detained in a mental hospital if his condition warrants this under the Mental Health Act 1983.
When a defendant is found unfit to plead and the jury decide that he or she did do the relevant actus reus, the judge has the power to make one of the following orders:
a hospital order (with or without a restriction order)
a supervision order
an absolute discharge
If the offence is one for which the sentence is fixed by law, for example murder, where there is a mandatory sentence of life imprisonment, and the court have the power to make a hospital order, then the judge must make a hospital order with a restriction order.
The defendant has a right to appeal to the Court of Appeal against a finding of unfitness to plead.
The Law Commission’s proposals
In October 2010 the Law Commission issued a consultation paper, Unfitness to Plead (2010) CP 197. In this they pointed out the problems in the existing law. The main problem the Commission highlighted is that the Pritchard criteria were formulated in 1836 at a time when mental illness and its effects on a defendant’s ability were not properly understood. As the Law Commission point out at paragraph 2.47:
QUOTATION
‘The Pritchard test really only addresses extreme cases of a particular type (usually bearing on cognitive deficiency) and … it continues to set a high threshold for finding an accused unfit to plead.’
The Law Commission’s main proposal is to replace the Pritchard test with a new test based on whether the accused has decision-making capacity for the trial. The test should take into account all the requirements for meaningful participation in the criminal proceedings.
Where a defendant is found unfit to plead, the Law Commission propose that on the trial of the facts, the prosecution should have to prove not only that D has done the act or made the omission charged but also that there are no grounds for an acquittal.
7.2.2 Insanity at time of offence
Where a person is fit to plead but is found to be insane at the time he committed the offence, a special verdict of ‘Not guilty by reason of insanity’ is given by the jury. The rules on insanity come from the M’Naghten Rules (see Chapter 8). Where the verdict is ‘Not guilty by reason of insanity’, the judge has the same powers of disposal under the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 as set out above in section 7.2.1.
7.2.3 Diminished responsibility
This is a partial defence which is only available on a charge of murder. It is set out in s 2 Homicide Act 1957 and operates where a person suffers from an abnormality of mental functioning, arising from a recognised medical condition which substantially impaired D’s ability to:
understand the nature of his conduct; or
form a rational judgment; or
exercise self-control
and which provides an explanation for D’s acts and omissions. (see Chapter 10 for full discussion of the defence). If the defence is successful the charge of murder is reduced to manslaughter.
7.2.4 Sentencing mentally ill offenders
As well as the normal range of custodial and community penalties there are also special powers available to the courts when dealing with mentally ill people who have been convicted of an offence. The aim is to provide treatment and help for such people while at the same time balancing the need for society to be protected from any danger posed by the person. The main additional powers available to the courts are:
a community sentence with a treatment requirement
a hospital order
a restriction order under s 41 of the Mental Health Act 1983
This last order can only be made in the Crown Court when the offender is considered to be a danger to the community. The order means that the offender is sent to a secure hospital for a set period or, where necessary, for an indefinite period.
ACTIVITY
Self-test questions
1. What is the doli incapax presumption and at what age does it cease to apply in England and Wales?
2. What other differences are there in the way children and young people are dealt with in the criminal justice system?
3. What is the purpose of the unfitness to plead procedure?
4. What safeguards are there for defendants when the unfitness to plead procedure is used?
5. Apart from the unfitness to plead procedure when is the mental health of the defendant a relevant matter in criminal proceedings?
7.3 Vicarious liability
There is a rule in the law of torts that one person can be liable for the torts committed by another. This is known as vicarious liability. It usually occurs in the employer/employee relationship where the employer is liable for any torts committed by an employee in the course of his employment. However, in criminal law the normal rule is that one person is not liable for crimes committed by another. This was illustrated nearly 300 years ago in Huggins (1730) 2 Strange 883, where the warden of Fleet prison was acquitted of the murder of a prisoner who had been placed in an unhealthy cell by one of the turnkeys (gaolers). The warden did not know that this had been done. Raymond CJ in this 1730 case pointed out the difference between civil and criminal law when he said:
JUDGMENT
‘It is a point not to be disputed but that in criminal cases the principal is not answerable for the act of the deputy as he is in civil cases; they must each answer for their own acts and stand or fall by their own behaviour. All the authors that treat of criminal proceedings proceed on the foundation of this distinction; that to affect the superior by the act of the deputy there must be command of the superior which is not found in this case.’
common law crimes of public nuisance and criminal libel
statutory offences where a statute imposes vicarious liability
At common law the principle expressed in Huggins nearly always applies. The only exceptions are the offences of public nuisance and criminal libel where the actions of an employee can make his employer vicariously liable. Causing a public nuisance on the highway can be disruptive to the general public and a reason for having vicarious liability for public nuisance is that it is likely to encourage employers to take steps to prevent their employees from creating the nuisance.
In statute law Parliament can make any offence it thinks appropriate one of vicarious liability by including such words as ‘person, himself or by his servant or agent’ in the offence. As well as having clear wording imposing vicarious liability it also imposed in two other ways. These are:
through the extended meanings of words
under the principle of delegation
Who can be vicariously liable?
The main categories of people who can be vicariously liable are:
principals, including corporations, for acts of their agents
employers, including corporations, for acts of their employees
licensees for acts of others employed in the business for which the licensee holds the licence where they have delegated control of the business. This is so even though the licensee may himself be an employee of the brewer or other owner of the premises which are licensed.
Vicarious liability can make principals responsible for the actions of their agents. In Duke of Leinster (1924) 1 KB 311 the Duke was bankrupt. He was convicted of obtaining credit without disclosing his bankrupt status. In fact it was his agent who, contrary to the Duke’s instructions, had obtained the credit without disclosing the facts. The Duke was guilty because he was vicariously liable for his agent’s failure to disclose the bankruptcy.
The main area in which vicarious liability exists is where employers are liable for the actions of their employees.
7.3.1 Extended meaning of words
Words such as ‘sell’ and ‘use’ are usually taken to include the employer (or principal or licensee), even though the actual sale or use is by an employee. These are strict liability offences where there is no need to prove any mental element. In such a case the act of the employee (selling, using etc) is the act of the employer. However, vicarious liability can only occur where an employee is doing an act which he is employed or authorised to do. Where the employee is not authorised to carry out the act then the employer is not liable. In Adams v Camfoni (1929) 1 KB 95, D was a licensee who was charged with selling alcohol outside the hours permitted by the licence. The sale had been made by a messenger boy who had no authority to sell anything. D was held to be not guilty.
If the employee is carrying out an authorised act then the employer will be liable even though the employee does it in a way which has not been authorised. This was seen in Coppen v Moore (No 2) (1898) 2 QB 306 where a sales assistant sold ham which she wrongly described as ‘Scotch ham’ against instruction of the employer. The employer was liable because the assistant was authorised to sell the item.
Vicarious liability still exists even where the employer has taken steps to ensure that such an offence is not committed. In Harrow LBC v Shah and Shah (1999) 3 All ER 302 the Shahs were newsagents who were convicted of selling a lottery ticket to a boy under 16. They had instructed their staff not to sell tickets to underage children and also told the staff that if they were not sure, they should ask the Shahs to check that it was all right to sell a ticket. An employee sold a ticket to a boy whom he reasonably thought was 16 or over, when the boy was in fact under 16. One of the Shahs was on the premises, though not in the shop when the sale was made. Despite these facts the Shahs were still held to be vicariously liable for the sale.
7.3.2 Delegation principle
Where an offence requires proof of mens rea then vicarious liability can only exist if the principal has delegated responsibility. In such instances the acts and intention of the person to whom responsibility has been delegated are imputed to the principal. This was demonstrated in Allen v Whitehead (1930) 1 KB 211.
CASE EXAMPLE
Allen v Whitehead (1930) 1 KB 211
The defendant owned a café which was run by a manager. He was charged under s 44 of the Metropolitan Police Act 1839 with the offence of knowingly permitting or suffering prostitutes to meet together and remain in a place where refreshments are sold and consumed. D had been warned by the police that prostitutes were meeting in his café and had instructed his manager not to allow this. D also had a notice displayed on the wall of the café forbidding prostitutes to meet at the café. He visited the café once or twice a week and there was no evidence that there had been any breach of the 1839 Act while he was on the premises. However, the manager allowed prostitutes to stay at the café for several hours on eight consecutive days. D was charged and it was held by the Divisional Court that both the acts and knowledge of his manager were to be imputed to D. The fact that he did not know of the breach was not a defence. He had delegated the management of the cafe to the manager and this made D liable.
In Linnett v Metropolitan Police Commissioner