JTB, R v

Factual and Procedural Background

The Appellant, aged 12 at the time of the events, pleaded guilty in The Crown Court on 4 October 2007 to twelve counts of causing or inciting a child under 13 to engage in sexual activity, contrary to section 13(1) of the Sexual Offences Act 2003. During police interview the Appellant admitted the conduct but stated he did not realise it was wrong.

Before trial, the Appellant sought a ruling that he could rely on the common-law defence of doli incapax (lack of capacity to know the act was seriously wrong). The trial judge held the defence was no longer available following section 34 of the Crime and Disorder Act 1998. The Appellant pleaded guilty and later appealed that ruling.

The Court of Appeal dismissed the appeal ([2008] EWCA Crim 815). The present judgment concerns the further appeal to the House of Lords, which also dismissed the challenge.

Legal Issues Presented

1. Whether section 34 of the Crime and Disorder Act 1998 abolished only the rebuttable presumption that a child aged 10–13 is doli incapax, or whether it abolished both the presumption and the underlying defence itself.

Arguments of the Parties

Appellant's Arguments

• Section 34 merely removed the presumption; it did not prohibit a child from proving, as a substantive defence, that they lacked the capacity to appreciate the serious wrongfulness of their act.
• Parliament’s wording—referring only to the “rebuttable presumption”—left room for the defence to survive.

Respondent's Arguments

• Section 34 was intended to eliminate both the presumption and the defence, ending the anomaly that sometimes prevented prosecution of serious offences by children aged 10–13.
• Parliamentary materials, consultation papers, and ministerial statements show a clear legislative intention to abolish the doctrine in its entirety.

Table of Precedents Cited

Court's Reasoning and Analysis

The House analysed the historical development of criminal responsibility in children, noting the distinction between:

• a conclusive presumption of incapacity for children under 10;
• a rebuttable presumption for those aged 10–13; and
• full responsibility from age 14.

The judiciary and commentators increasingly criticised the rebuttable presumption as “anachronistic” and contrary to common sense. The parliamentary record confirmed that the Government intended to abolish the entire doctrine, not merely shift the burden of proof.

Applying the Pepper v Hart principle, the House examined consultation documents, the White Paper “No More Excuses,” ministerial statements, and two failed amendments proposed by Attorney Goodhart. These materials made it “quite clear” that Parliament chose abolition over reversal. The isolated statement by Judge Falconer suggesting otherwise was deemed inconsistent with the broader legislative purpose.

Consequently, section 34 must be construed as eliminating both the presumption and the defence. Because the defence was unavailable in law, the trial judge’s refusal to allow it was correct, and the guilty pleas remained valid.

Holding and Implications

APPEAL DISMISSED.

The House of Lords held that section 34 of the Crime and Disorder Act 1998 abolished the defence of doli incapax for children aged 10–13. Henceforth, the prosecution need not prove that such a defendant understood the serious wrongfulness of the act; ordinary criminal liability applies. The decision clarifies statutory interpretation but does not establish a new common-law principle beyond confirming the scope of section 34.