(Queen's Bench Division; Smith and Gross LJ; 27 April 2007)
The Crown Prosecution Service (CPS) appealed by way of case stated against a decision of a youth court to stay proceedings against a boy aged 13 as an abuse of process, the district judge having been persuaded on the evidence before him that the child was not able to participate effectively to the extent required for a fair trial.
In the case stated the district judge sought the guidance of the court on specific issues. The court was also asked to give guidance to youth courts faced with the kinds of problems arising in P's case, including whether a child might be entitled to a finding of not guilty on the grounds of doli incapax as opposed to a mere stay on the grounds of lack of capacity. There was no authority on whether the effect of s 34 Crime and Disorder Act 1998 was to abolish the defence of doli incapax, or simply the presumption. In Smith LJ's necessarily obiter view, the defence remained available and the burden of proof should remain on the Crown to prove that the child had the requisite understanding. Evidence of incapacity which would justify a stay would also likely form the basis of a doli incapax defence: if the defence remained available therefore it would be better for the defendant to have the chance of an acquittal rather than a stay. The need for the issue to be determined by a court which was fully seized of it was flagged up.
The district judge had erred in law and the appeal would be allowed, although the stay would remain in place. The district judge should not have stayed the proceedings at the outset without considering the alternative of allowing the trial to proceed while keeping the child's situation under constant review. The issue of a child's ability to participate effectively in a trial must always be decided afresh; where the court decides to proceed to find whether the defendant did the acts alleged the proceedings were not a criminal trial; the court may consider switching to a fact-finding inquiry at any stage; if the court switches to a fact-finding inquiry the fact that the defendant cannot take part in the proceedings does not make them unfair: the defendant's Art 6 rights are not engaged in any way.
In the absence of a statutory procedure to guide youth courts in their approach to capacity issues the court suggested the procedure that should be followed.