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?

Abstract

In R v M(D)1 the appellant was charged with three offences of indecent assault against his younger half-sister (C) when he was aged between 14 and 16 years including digitally penetrating her vagina and simulating sexual intercourse with her when she was aged between 10 and 12 years. In addition to the evidence provided by his younger half-sister, the prosecution relied on bad character evidence (BCE) of two unindicted incidents of sexual misconduct by the defendant when he was between 10 and 14 years old to demonstrate the appellant's propensity to sexually assault his younger sister. These two unindicted incidents occurred prior to the coming into force of the Crime and Disorder Act 1998 and the abolition of the presumption of doli incapax. The prosecution believed that these incidents established a propensity to commit offences of the type the defendant was charged with, and demonstrated a steady progression from the defendant’s ‘wild behaviours’ as a child towards sexual experimentation involving C.2 The Court of Appeal ruled that the behaviour the defendant engaged in between the ages of 10 and 14 years could be relied on by the jury as evidence of a predictive base for future behaviour. As the appellant was not facing a criminal charge in relation to this behaviour the court ruled that the presumption of doli incapax had no application and consequently did not need to be rebutted.