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?

In R v M the Court of Appeal circumvented the retrospective application of the presumption of doli incapax doctrine by allowing for the admission of behaviours as evidence rather than hearing them as a charge on indictment. This article will consider whether the safeguards contained within the Criminal Justice Act 2003 are sufficient to protect against the potential unfairness in a decision to admit childhood behaviours to show propensity. Further, we question whether the behaviour of children younger than 14 years old should be deemed capable of serving as a predictive base for future behaviour, particularly where these behaviours have not previously been established beyond a reasonable doubt during a criminal trial. This article will argue that the current safeguards are unsatisfactory and that, although using bad character evidence is probative in some situations, it is not necessarily a solid predictive base particularly in cases of youth offending and effectively denies children the right to a fair trial in which all protections (including the presumption of doli incapax) are available to the child accused of offending.