PF v REGINA

Factual and Procedural Background

The case concerns an appellant convicted of sexual offences committed against two sisters, referred to as X and Y, during the period between May 1979 and July 1983. The appellant and the siblings grew up in a family with a father in the RAF and a mother with mental health and alcohol issues. The family moved between RAF bases in Germany and Norfolk. Final care orders were made for three of the children in August 1983, marking the end of the indictment period. The appellant was convicted at trial in the Crown Court at Norwich on one count of indecent assault and one count of indecency with a girl under 14 years of age, both relating to sister X. He was acquitted of offences relating to sister Y. The appellant was sentenced to a concurrent Community Order with curfew conditions and subsequently appealed against the convictions on counts 4 and 6 by leave of the Single Judge.

Legal Issues Presented

1. Whether the trial judge misdirected the jury on the issue of the common law presumption of doli incapax, specifically by failing to direct that the jury must be satisfied by clear positive evidence, independent of the act itself, that the appellant knew his conduct was seriously wrong and not merely naughty or mischievous.
2. Whether the convictions on counts 4 and 6 are safe in light of the alleged misdirection regarding the rebuttal of the presumption of doli incapax.

Arguments of the Parties

Appellant's Arguments

• The trial judge’s directions were deficient because they did not require the jury to find clear positive evidence, distinct from the commission of the act itself, that the appellant knew his conduct was seriously wrong.
• The jury may have convicted based solely on the commission of the acts without properly considering the independent evidence necessary to rebut the presumption of doli incapax.
• The jury were not directed to decide whether the alleged bullying or coercion, which could constitute independent evidence of guilty knowledge, actually occurred.
• In the absence of proper directions, the convictions on counts 4 and 6 are unsafe and should be quashed.

Crown's Arguments

• The judge gave extensive directions about the appellant’s coercive and bullying behaviour towards his siblings, which was evidence capable of rebutting the presumption of doli incapax.
• The jury were reminded of evidence beyond the mere sexual acts, including coercion, bribery, and controlling behaviour, which they could properly consider as independent evidence of the appellant’s guilty knowledge.
• This evidence was sufficient to satisfy the jury that the appellant knew his conduct was seriously wrong, effectively providing the required direction despite the omission of explicit language regarding independent evidence.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the trial judge’s directions in light of established legal principles concerning the presumption of doli incapax. It noted that the judge directed the jury that they must be sure the appellant committed the acts and knew they were seriously wrong. However, the judge failed to instruct the jury that the prosecution must prove this guilty knowledge by clear positive evidence independent of the acts themselves. This omission was a material defect, as clarified in the recent authoritative decision in R v M (D), which had not been brought to the trial court’s attention.

The court acknowledged the Crown’s argument that the jury were reminded of evidence of coercive and bullying behaviour, which could constitute the independent evidence required. Nonetheless, the court found that the jury were not directed to assess whether such behaviour was proven or to treat it as the basis for rebutting the presumption of doli incapax. This was particularly significant because the appellant admitted some sexual contact with sister X but denied coercion, and the jury acquitted him on the count related to sister Y where there was no admitted sexual activity.

Drawing on RP v The Queen, the court emphasised the importance of distinguishing between mere childish sexual experimentation and conduct known to be seriously wrong. The absence of a clear direction to the jury on the need to find independent evidence of guilty knowledge rendered the convictions unsafe.

Holding and Implications

The court ALLOWED the appeal and quashed the convictions on counts 4 and 6.

The decision directly affects the appellant by overturning the convictions due to defective jury directions on the rebuttal of doli incapax. No new legal precedent was established, but the ruling reinforces the necessity for trial judges to give complete and precise directions on the requirement for clear positive evidence, independent of the act itself, to rebut the presumption that a child is incapable of criminal intent.