Evidence of Bad Character in cases of historic youth sexual offending – demonstrating a defunct moral compass or distracting the jury and evading the retrospective effect of the presumption of doli incapax?

Engleby, Emma and Arthur, Raymond (2018) Evidence of Bad Character in cases of historic youth sexual offending – demonstrating a defunct moral compass or distracting the jury and evading the retrospective effect of the presumption of doli incapax? Child and Family Law Quarterly, 30 (4). pp. 351-367. ISSN 1358-8184

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Abstract

In R v M the Court of Appeal circumvented the retrospective application of the presumption of doli incapax doctrine by allowing for the admission of behaviours as evidence rather than hearing them as a charge on indictment. This article will consider whether the safeguards contained within the Criminal Justice Act 2003 are sufficient to protect against the potential unfairness in a decision to admit childhood behaviours to show propensity. Further, we question whether the behaviour of children younger than 14 years old should be deemed capable of serving as a predictive base for future behaviour, particularly where these behaviours have not previously been established beyond a reasonable doubt during a criminal trial. This article will argue that the current safeguards are unsatisfactory and that, although using bad character evidence is probative in some situations, it is not necessarily a solid predictive base particularly in cases of youth offending and effectively denies children the right to a fair trial in which all protections (including the presumption of doli incapax) are available to the child accused of offending.

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