The Logic and Value of the Presumption of Doli Incapax (Failing That, an Incapacity Defence).

This article focuses on the legal principle of criminal capacity in children, specifically the presumption of doli incapax, which holds that children under a certain age lack the capacity to understand the serious wrongness of their actions and thus cannot be convicted unless proven otherwise beyond reasonable doubt. It outlines how common law traditionally sets the minimum age of criminal responsibility (MACR) at 10 in jurisdictions like Australia, England & Wales, and Northern Ireland, with Australia retaining the rebuttable presumption of incapacity up to age 14, while England & Wales and Northern Ireland have abolished it, assigning full capacity at age 10. Drawing on developmental neuroscience and international recommendations, the article argues for raising the MACR but emphasizes the importance of retaining and extending the rebuttable presumption to provide individualized justice, recognizing that children mature at different rates and that wrongful convictions can severely harm their life prospects. It further discusses the types of evidence relevant to proving a child's capacity and suggests that if reintroduction of the presumption is politically unfeasible, a reverse-burden incapacity defence could serve as an alternative to better protect children in the justice system.