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Doli Incapax under common law In the early days of common law, there was no definite rule whether

to hold a child criminally responsible. Records shown that different treatment was given to children of age seven or younger depending on the discretion of the judge to decide whether or not the children were considered able to differentiate right from wrong. According to A. D. Photis, in the article Criminal Responsibility of Infants, during the Anglo-Saxon times, a child cannot be convicted of a crime if he had not attained the age of 12. However, the age limit was reduced to seven during the reign of King Edward I. This is the time where children below age seven enjoyed full immunity from criminal prosecution notwithstanding any evidence speak otherwise. However, the Register of Writs refers to a precedent of a pardon to a child under seven, and so implies that children under that age were still on occasions prosecuted.1 The rule as to the minimum age of criminal responsibility varied from seven to eight years of age and subsequently rises to ten years of age. The rebuttable presumption under common law that children between age seven and fourteen were Doli Incapax continued to apply until recently, in the case of C v DPP [1994] 3 WLR 888, the court concluded that the presumption mentioned above was out dated and should treated as no longer good law. In addition, following the case of Jamie Bulger, whereby two ten year old boys kidnapped a two-year-old child from a shopping centre, tortured and brutally killed him. The House of Lords ruled that the doctrine of Doli Incapax still applies and that decision leads to the respond from the British Government. As a result, Crime and Disorder Act 1998 was enacted and through section 34 of the Crime and Disorder Act 1998 where the provision stated clearly the rebuttable presumption of criminal law that a child of ten years or older is incapable of committing an offence is abolished. In the case of R v BP & SW, the issue in dispute was Doli Incapax whereby the appellant appeal against the conviction of aggravated sexual assault on a sixteen year old

Peter K B Sit, Report On The Age Of Criminal Responsibility In Hong Kong

girl by one boy aged eleven and twelve for another. Eventually, the Court of Criminal Appeal dismissed the appeal and uphold the conviction of the two boys. Doli Incapax under Hong Kong Jurisdiction In Hong Kong, the minimum age of criminal responsibility is statute based.2 Under Section 3 of the Juvenile Offenders Ordinance, it was stated conclusively that no child under the age of seven can be guilty of an offence. Thus, it creates a final and irrebuttable presumption that a childis Doli Incapax and any child under the age of seven will have full immunity from criminal responsibility albeit the existence of conclusive evidence which unequivocally testifies to the childs criminal activity. As mentioned above, the minimum age of criminal responsibility in United Kingdom has been adjusted a few times and similar attempts was made by Hong Kong Government to reform the law but nothing come to fruition. In 1973, the attempt to raise the minimum age of criminal responsibility of children from seven to ten was made through the Juvenile Offenders (Amendment) Bill 1973 but the bill was not passed. In the case for children aged between seven and fourteen, Hong Kong applies the rebuttable presumption of Doli Incapax. If the prosecution managed to prove, beyond reasonable doubt that at the time during the commission of crime, the child was conscious and aware that his or her act was not of naughty or mischievous acts, and was in the nature of seriously wrong, the presumption of Doli Incapax will be rebutted and full criminal responsibility shall be imposed on the child alleged. The principles governing the Hong Kong doctrine of rebuttable presumption can be found in the case of R v Gorrie. The court in that case, gives the following explanation, the jury should first of all consider whether it would be their duty to find him guilty if he were over fourteen, and then consider whether mischievous discretion deprived him of the shelter which he would otherwise have. If it was an assault and not an accident - if, however little he might have meant to do him any harm, he did in fact intentionally stab the other boy with the penknife and thereby caused his death, that was manslaughter .

Then they came to the second point. The boy was under fourteen, and the law presumed that he was not responsible criminally; and if the prosecution sought to show that he was responsible although under fourteen, they must give them very clear and complete evidence of what was called mischievous discretion: that meant that they must satisfy the jury that when the boy did this he knew that he was doing what was wrong - not merely what was wrong, but what was gravely wrong, seriously wrong.3 Doli Icapax Under South African Jurisdiction South Africa is among the lowest minimum age of criminal capacity in the world at seven years old. The criminal capacity of children in South Africa was governed by two presumptions whereby children below the age of seven is Doli Incapax and thus can never be prosecuted whereas children age between seven to fourteen can be prosecuted but the onus rested on the Prosecution to prove, beyond reasonable doubt that the child was able to, Appreciate the wrongfulness of his or her actions; and Conduct himself or herself in accordance with this appreciation of the wrongfulness of such actions.4 However, it is insufficient by just proving the child could distinguish right from wrong was insufficient to rebut the presumption as it had to be clear that the child was aware that their commission was wrong within the context of the facts of the case.5 Further developments to protect children against the rebuttable presumption of Doli Incapax were made. The criminal capacity under the common law principle was amended in the Child Justice Act 75 of 2008 through raising the minimum age of criminal capacity to ten years old. The rebuttable presumption of Doli Incapax was retained and only the presumption was amended from seven to ten years old.

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