Unfitness to Plead and the Overlap with Doli Incapax: An Examination of the Law Commission's Proposals for a New Capacity Test

Abstract

The Law Commission published Consultation Paper No. 197 in October 2010 on unfitness to plead. This article will focus on the relationship between the proposed capacity test and the abolition of the defence of doli incapax for children aged 10 or above.

Lack of Capacity

“…65 Given the fact that the age of criminal responsibility stands at 10, and is one of the lowest in Europe, this is clearly a matter for concern. 66 If, and until, such reform is forthcoming, perhaps the new Bill will be the best solution for the developmentally immature child to be found unfit to plead. Certainly the Law Commission identifies a need to screen the capacity of children over the age of 14, appearing for the first time in the Youth Court.…”