With the ever increasing volume of allegations of offences of an historic sexual nature, solicitors engaged in defending clients charged with such offences must have reliable knowledge of the current law relating to such offences and the manner in which it has developed from previous law.

This importance became apparent in a recent judgment handed down by the Court of Appeal when it considered the application of law as it stood prior to that which is now operative.

The Case Of PF [2017] EWCA Crim 983 | Kangs Sexual Offence Advisory Team

The Appellant had been convicted of indecently assaulting his younger sister between 1979 and 1983, at which time he was between ten and thirteen years old.

At that time, when the incidents occurred, there existed a legal presumption, known as doli incapax, that a child over the age of ten but under the age of fourteen was incapable of committing a crime.

This presumption would only fail if the prosecution was properly able to prove that:

  • the child committed the crime (involving the two legal requirements demanded by law) and
  • the child knew that the action was not just naughty or mischievous but seriously wrong.

This presumption was abolished by s.34 Crime and Disorder Act 1998.

However, the Act does not have retrospective effect i.e. it does not remove the presumption of doli incapax in respect of offences committed before it came into force.

The Appellant accepted that there had been a modest amount of sexual contact with his younger sister and the Trial Judge properly directed the jury that he must be treated as being under the age of fourteen with the consequence that the presumption applied, unless the prosecution could show that, at that time, he knew the activity to be seriously wrong.

However, whilst summing up, the Judge failed to direct the jury that for them to be satisfied that the Appellant knew at that time that the activity was seriously wrong, there had to be clear positive evidence to that effect distinct from the action itself.

This failure on the part of the Trial Judge was the Appellant’s single ground of appeal and the Court of Appeal accepted the argument and overturned the conviction.

How Can We Help? | Kangs National Sexual Offences Defence Team

Kangs Solicitors have a proven track record in representing those charged with sexual offences.

Please see links below for highlights of our recent cases:

If you have been arrested on suspicion of committing an historic sexual offence please contact us for a free initial consultation.

Hamraj Kang
07976 258171 | 020 7936 6396 | 0121 449 9888

John Veale
0121 449 9888 | 020 7936 6396

Helen Holder
0121 449 9888 | 020 7936 6396