9. Infancy and the remaining defences

A child, for this purpose, is a person under fourteen. A young person is fourteen or over and under seventeen. From seventeen, the person is neither.

Under seven the child is doli incapax. The presumption is irrebuttable. The court does not inquire whether the child understood. An adult who instigated the child is the principal, acting through an innocent agent. The same age appears in the definition of murder. A person of sound memory and discretion does not include a child under seven.

From seven to under fourteen there is a presumption of incapacity, and it can be rebutted. The prosecution must prove a mischievous disposition: that the child knew the act was gravely or seriously wrong. A confession, or running away to hide, can be the evidence. Gorrie, a boy of thirteen, was acquitted of manslaughter because the presumption was not rebutted. B v R, a child of eight who confessed to burglary, is the case where it was rebutted. At fourteen and over the person is fully responsible.

Boys under fourteen cannot be principals in the first degree to rape, because of the separate presumption that they are incapable of sexual intercourse. They can be charged as accomplices.

Marital coercion, also called conjugal subjection, is still common law in Sierra Leone. If a wife commits an ordinary felony in the actual presence of her husband, it is presumed that she acted under his compulsion, even if there is no proof that he intimidated her. The presumption does not apply if he was absent. Earlier orders or threats then have no more force than the orders of any other instigator. It does not apply to treason or to murder. It is only a prima facie presumption. It is rebutted if she took an active part that shows her will was her own. Section 1 of the Sexual Offences Act 1993 abolished the presumption in England. It did not abolish it here.

Three short answers follow. Reasonable chastisement, to promote the welfare of the person chastised, can justify force. Superior orders are not a defence in Sierra Leone. Entrapment is not a defence in Sierra Leone, and it is not a defence in England. Birchley and Brannan v Peek say so. Setting a trap, or even an officer committing an offence to obtain evidence, does not give the accused a defence. In the United States, entrapment can be a defence where the accused was coerced into the crime, and that account confines it to drugs cases.