Doli Incapax: an Issue for All to Discuss

Doli incapax is a Latin term which refers to the incapability of children to commit crimes (Dally et al: 244, 2006). Doli incapax is greatly important for criminal cases of Children and Young People, as it is a right specifically associated with this group. The literal meaning is “incapable of crime”. However it cannot be interpreted to mean that children of a certain age are physically incapable of committing crime. Neither does the term insinuate that children act irrationally, as many interpret. However, this term refers to the children having the understanding that an action which they take is legally a crime.

Doli incapax was first introduced as part of English Common law, recorded in the book “Countrey Justice” by Dalton Blackstone in 1619 (Crofts:Murdoch University, 2008). During the colonial era in Britain, however, the overworked magistrates often ignored the law, as it was easier and more politic to transport the “snotty nosed street lads”. A main reason for this was the overcrowded prisons in Britain and there were no real provisions for juvenile reform. Up until the Twentieth Century, children and young people in Britain and Australia had few rights that were separate from adults. Many children as young as eight, for instance, were convicted of, and transported to Australia for crimes as petty as theft of bread. The first time an age was set by statute was in the Children and Young Persons Act of British Parliament in 1932. This set the age of criminal responsibility to seven, which was amended to eight in 1933 by another Act bearing the same title (British Parliament: 2008).

In Australia, the Commonwealth Government’s Crimes Act 1914, in section 4M, it states; “A child under 10 years old cannot be liable for an offence against a law of the Commonwealth.” In subsequent section 4N, the Act states; “(1) A child aged 10 years or more but under 14 years old can only be liable for an offence against a law of the Commonwealth if the child knows that his or her conduct is wrong. (2) The question whether a child knows that his or her conduct is wrong is one of fact. The burden of proving this is on the prosecution.” In the amendment to the 1914 Crimes Act, The Criminal Code Act 1995, no changes were made to these two sections (Australian Government:2008).

The most important element of controversy in both the legal profession and the wider community, is the fact that doli incapax is an irrebuttable presumption for children ten years and under. This means that criminal innocence is assured, evidence cannot be presented, and conviction is impossible, in all cases. For children between the ages of ten and fourteen, doli incapax is a rebuttable presumption, meaning that innocence will not be held if the prosecution can produce evidence contrary to the presumption of innocence. This means that the prosecution has the burden of proof, and if evidence is not produced to back up the accusations, the court will dismiss the charge.