| The presumption of doli incapax is one of the most distinctive and worldinfluenced rules in the field of British criminal responsibility capability.Through its emergence and evolution,we can see the British view on punishment,social history and children.Furthermore,the praise and criticism it received,as well as the end of its abolition,affected the change of the British juvenile justice position and the reform of the criminal responsibility policy.Based on the presumption’s theoretical connotation and its origin,and combined with the changes in British society’s attitude towards child crime,this article attempts to analyze the history how the presumption was gradually abolished.Also,the passage tries to explore the direction of the future reform of the British criminal responsibility system.Because Britain emphasized substantive justice,doli incapax was born.However,because it’s high requirements for substantive judgments and it’s protection and welfare attitude towards children could not be compatible with the traditional British juvenile justice environment,doli incapax was abolished.The changes of British children’s criminal responsibility can be regarded as an accident of the legislative parties seeking the support of voters,but it’s more an inevitable result of the harsh concept of child punishment in the society.Taking the historical process as a clue,the article is divided into four chapters:The first chapter is about the the historical basis of the presumption of doli incapax.According to Children and Young Persons Act 1933 which was regarded as a watershed,the history of the age of criminal responsibility system in Britain could be compartmentalized into two stages.One is the evolution of rule of presumption of doli incapax under common law before 20 th century.Another is the birth of the modern age system of criminal responsibility under the enactment law after that.This chapter first interprets the connotation and related concepts as the presumption of doli incapax.By analysing the name word by word,this article figures out that a conceptual deviation definitely exists between the rule of malice supplies the age in Chinese academic circles and the presumption of doli incapax in Britain.To make it apprehensible,this article divides the presumption of doli incapax into two presumptions based on age—absolute presumption and relative presumption,or two rules divided by steps of procedure—general rules and exception rules.It analyzes the legal and procedural requirements of the prosecution’s burden of proof,explains the meaning of key concepts such as “distinguishing” and “malice”.It also appreciates the attribute of presumption to protect substantive justice and its inherent flaws that increase judicial burdens.Chronologically,the following two sections sort out the build of British criminal responsibility age’s architecture and its evolution history.On one hand,the passage explores presumption rules’ birth and development from common law before 20 th century.Seek resource from some other ancient laws like Roman law,canon law and Germanic law.Inspect evolution of the treatment of children’s criminal responsibility in early Britain from a unique perspective of combining British social history and children.On the other hand,the article sorts out the historical procedures in establishing the age system criminal responsibility in the enactment of the law since the 20 th century.Since Beccaria proposed the concept of capacity for criminal responsibility and Bentham rationalized the criminal law with the Children Act 1908 as the symbol and the three Children and Young Persons Acts as the process,the age of criminal responsibility in the modern sense of England began to establish and gradually perfect.In the following half a century,under the comprehensive domestic and international influence,the United Kingdom continued to make attempts to reform the age system.The second chapter explores the circumstances and reasons why doli incapax has been violently attacked since the 20 th century.Different from the past centuries when the presumption played a silent role as a potential rule,since the industrial revolution,the problem of child crime has been regarded as a major social crisis by the British public,thus,the presumption rule that seems to protect children excessively has not only attracted unprecedented attention from the society,but also received huge pressure from public opinion.This chapter,firstly,takes the Coulburn case in 1988 as an example to show the British people’s theoretical value evaluation and practical emphasis on the presumption of doli incapax during this period,to show that the presumption rule is inevitably abolished.In the context of British social changes in the 20 th century,people’s attitudes towards child crimes have also undergone drastic and repeated changes.With the intensification of social conflicts and the promotion of public opinion,the government’s original policy of firmly upholding the presumption of doli incapax has quietly changed.Secondly,it examines how the emergence of the Bulger case in 1993 detonated all the anger in British society against the presumption of doli incapax.Although it was only an individual case,this case sent a strong signal: at this time,the children in the eyes of the people have changed from innocent angels to demons that threaten social stability.This direction of opinion suggests that the time has come for a fundamental change in the age of criminal responsibility system in Britain.The C v.DPP case of 1994 introduced in the third part is the first attempt of this kind of reform.Taking the case as an opportunity,the House of Lords,while affirming that the legal status of the doli incapax remains intact,publicly called for a parliamentary review of the merits of the rule’s existence.The third chapter focuses on the procedure of the presumption of doli incapax being completely abolished at the legislative and judicial levels.The process which lasted for over ten years illustrated that presumption of doli incapax is not only a single legal rule existing in Criminal Law,but also a defense in the Criminal Procedure Law.Chronologically,this chapter first explore the background of the abolition of presumption rules at the legislative level.Since the 1990 s,the New Labor Party made major adjustments to its policy of juvenile delinquency and issued a series of programmatic documents and work plans to show the society that its position of dealing with juvenile delinquency has made a transition from the traditional welfarism to severe punishment and control of child crime.This led to the enactment of The Crime and Disorder Act 1998,in which Article 34 of the Act officially abolished the presumption of incapacity.However,this statute suffered mixed,and immediately sparked huge controversy society.The second part of this chapter selects the largest focus of many disputes for discussion: represented by the 2007 CPS v.P case,some legal persons argue that Article34 only abolishes the presumption of doli incapax,but children still have the right to use it as a defense.On the other hand,in the 2009 R v.JTB judgment,the House of Lords made it clear that Article 34 of the Crimes and Obstruction of Order Act of 1998 had abolished the presumption of doli incapax and its qualifications as a defense.the decision has the effect of a tuning hammer.The fourth chapter tries to make a proper assessment base on the abolition of the presumption of doli incapax.On one hand,from the perspective of the overall process of Britain juvenile justice,abolition of the presumption might be an ordinary sublation in Britain criminal law while adapting to many changes in society.The inherent complexity of the presumption rule at the theoretical level has made it difficult to be understood and applied by the majority of basic-level judges,lawyers and other legal workers in the past history,which has led to injustices in judicial practice;its adequate protection of children is also considered to be unsuitable for today’s society of premature children,so it is not conducive to the warning and correction of children who commit crimes.On the other hand,the decision to abolish the presumption seems to be counted as a victim of politics and a manifestation of civilization regression,because reasons for abolishing rules given by government are not convinced enough.Also,losing presumption of incapacity means that the minimum age of criminal responsibility in Britain has been drastically reduced by 10 years old,and young children are exposed to tedious criminal procedures and harsh penal sanctions.On every account,given that the presumption of doli incapax wes abolished,the age of criminal responsibility system in Britain is now facing some brand new revolution and challenges.Britain could take several aspects of reformation into consideration,such as restoring the presumption of doli incapax under the precondition of repairing the defects to the utmost extent,raising the minimum age of criminal responsibility to some degree,promoting supporting criminal procedures and penal measures,making full use of civil methods such as the family litigation court and so on.However,the most important thing is to purify the environment for children’s growth in family,school and society,and prevent children’s crimes from the root while protecting their healthy growth. |
