Judgments - B (By His Mother and Next Friend) v. Director of Public Prosecutions

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The genesis of section 1(1) of the Act of 1960

    Before the enactment of the Act of 1960 there was already in existence a relatively comprehensive statute, the Sexual Offences Act 1956, which served to protect young children against sexual exploitation. In particular the Act of 1956 contained provisions making it an offence to commit an indecent assault on a man or a woman: sections 14 and 15. The statute provided that girls and boys under 16 cannot in law give consent which would prevent the act being an assault. These provisions were effective so far as they went but decided cases revealed a gap in the protective net of the Act of 1956: Fairclough v. Whipp [1951] 2 All E.R. 834 and Director of Public Prosecutions v. Rogers [1953] 1 W.L.R. 1017. The statute made no provision for cases where an adult invited a child to touch or handle him indecently: in such cases there was sometimes no ingredient of assault which could trigger the indecent assault provisions of the Act of 1956, namely sections 14 and 15. In 1959 the Home Secretary invited the Criminal Law Revision Committee to consider the point and to make recommendations for an amendment of the law. The Committee produced a clear and succinct report dated 18 June 1959: Cmnd 835. The Committee cautioned itself against recommending too broad a provision: instead it concentrated on the gap in the Act of 1956. It considered the appropriate age limit. The Committee recommended the creation of an entirely new offence in respect of acts of gross indecency towards children under the age of 14. The Committee annexed a Draft Bill to its Report. Clause 1(1) of the Bill was in due course enacted as section 1(1) of the Act of 1960. There is no discussion in the Report of the question whether the proposed new offence would be one of strict liability or not.

Section 1(1)

    The long title of the Act of 1960 describes it as an Act "to make further provision for the punishment of indecent conduct towards young children." Section 1(1) provides as follows:

    "Any person who commits an act of gross indecency with or towards a child under the age of fourteen, or who incites a child under that age to such an act with him or another, shall be liable on conviction on indictment to imprisonment for a term not exceeding two years, or on summary conviction to imprisonment for a term not exceeding six months, to a fine not exceeding the prescribed sum, or to both."

Section 1(1) creates an age-based offence. It is of the essence of the offence that the child is under the age of 14 years. The offence is an exception to the general law which does not make it an offence to commit or to incite another to commit an act of indecency or gross indecency. The only criminalisation of acts of gross indecency in the Act of 1956 is to be found in section 13 which makes acts of indecency between men an offence. This is, however, not an age-based offence. It is common ground that this link between the two Acts is neutral and throws no light on the problem before the House.

The Act of 1956

    In the Divisional Court Rougier J. described the Act of 1960 as an appendix to the Act of 1956 and I would adopt this description. At the hearing of the appeal to the House counsel for the appellant demonstrated how the Act of 1956 consists of a collection of disparate offences deriving from diverse earlier enactments. Leaving to one side procedural provisions in the Act of 1956 regarding the powers and procedure for dealing with offences and powers of arrest and search, and concentrating on the substantive provisions, the immediate precursors of the present day offences is to be found in legislation dating from 1861, 1885, 1889, 1912, 1913, 1922, 1929 and 1933. And the precursors of some of the sexual offences in the Act of 1861 go back to medieval times. The Crown accepts that it would be wrong to describe the Act of 1956 as the product of a legislative initiative designed to devise a more rational system. It would be more accurate to describe it as the bringing together in one statute of a range of offences pragmatically created at different times in response, no doubt, to the perceived demands of public interest at the time. But, as counsel for the Crown pointed out, there is nevertheless a strong theme running through the various provisions of the Act of 1956, namely the protection of young children from sexual depredations.

    For present purposes it is unnecessary to review all the detailed substantive provisions of the Act of 1956. But three matters need to be mentioned. First, sections 5 and 6 create a "pair" of offences, namely offences of having sexual intercourse with girls under 13 (section 5) and with girls under 16 (section 6). Under section 6(3) there is a so called "young man's defence." That is a defence available to men under the age of 24, who have not previously been charged with a like offence, who act in the belief that the girl is of the age of 16 or over and has reasonable cause for such a view. This defence is not available upon a charge under section 5 which plainly creates an offence of strict liability. Secondly, in the Statement of Facts and Issues and in oral argument counsel described sections 14 and 15 of the Act of 1956 as for present purposes the most relevant comparators in the Act of 1956. They provide as follows:

    "14. (1) It is an offence, subject to the exception mentioned in subsection (3) of this section, for a person to make an indecent assault on a woman.

    "(2) A girl under the age of sixteen cannot in law give any consent which would prevent an act being an assault for the purposes of this section.

    "(3) Where a marriage is invalid under section two of the Marriage Act 1949 or section one of the Age of Marriage Act 1929 (the wife being a girl under the age of sixteen), the invalidity does not make the husband guilty of any offence under this section by reason of her incapacity to consent while under that age, if he believes her to be his wife and has reasonable cause for the belief.

    "(4) A woman who is a defective cannot in law give any consent which would prevent an act being an assault for the purposes of this section, but a person is only to be treated as guilty of an indecent assault on a defective by reason of that incapacity to consent, if that person knew or had reason to suspect her to be a defective.

    "15. (1) It is an offence for a person to make an indecent assault on a man.

    "(2) A boy under the age of sixteen cannot in law give any consent which would prevent an act being an assault for the purposes of this section.

    "(3) A man who is a defective cannot in law give any consent which would prevent an act being an assault for the purposes of this section, but a person is only to be treated as guilty of an indecent assault on a defective by reason of that incapacity to consent, if that person knew or had reason to suspect him to be a defective.

    "(4) Section thirty-nine of this Act (which relates to the competence as a witness of the wife or husband of the accused) does not apply in the case of this section, except on a charge of indecent assault on a boy under the age of seventeen.

    "(5) For the purposes of the last foregoing subsection a person shall be presumed, unless the contrary is proved, to have been under the age of seventeen at the time of the offence charged if he is stated in the charge or indictment, and appears to the court, to have been so."

It has been held that it is no defence on charges under sections 14 and 15 that the defendant believed the girl or boy to be over 16 and to be consenting: Rex v. Forde [1923] 2 K.B. 400, C.A.; Rex v. Maughan (1934) 24 Cr.App.R. 130, C.C.A. Counsel for the appellant challenged the correctness of these decisions. The third point is a more general one. Counsel for the Crown submitted that a study of the Act of 1956 reveals a general legislative policy to protect young children under the age of 16 years from sexual abuse. This proposition is uncontroversial: the legislative policy described by counsel is evidenced by numerous provisions of the Act of 1956. In these circumstances it is unnecessary to refer to other provisions of the Act of 1956.

The correct approach

    My Lords, it will be convenient to turn to the approach to be adopted to the construction of section 1(1) of the Act of 1960. While broader considerations will ultimately have to be taken into account, the essential point of departure must be the words of section 1(1). The language is general and nothing on the face of section 1(1) indicates one way or the other whether section 1(1) creates an offence of strict liability. In enacting such a provision Parliament does not write on a blank sheet. The sovereignty of Parliament is the paramount principle of our constitution. But Parliament legislates against the background of the principle of legality. In Reg. v. Secretary of State for the Home Department, Ex parte Pierson [1998] A.C. 539 many illustrations of the application of the principle were given in the speech of Lord Browne-Wilkinson and in my speech: 573G-575D, 587C-590A. Recently, in Reg. v. Secretary of State for the Home Department, Ex parte Simms [1999] 3 W.L.R. 328 the House applied the principle to subordinate legislation: see in particular the speeches of Lord Hoffmann (at 341F-G), myself (at 340G-H) and Lord Browne-Wilkinson (at 330E). In Ex parte Simms Lord Hoffmann explained the principle as follows (at 341F-G):

    "But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual."

This passage admirably captures, if I may so, the rationale of the principle of legality. In successive editions of his classic work Professor Sir Rupert Cross cited as the paradigm of the principle the "'presumption' that mens rea is required in the case of statutory crimes": Statutory Interpretation 3 ed. (1995), p. 166. Sir Rupert explained that such presumptions are of general application and are not dependent on finding an ambiguity in the text. He said they "not only supplement the text, they also operate at a higher level as expressions of fundamental principles governing both civil liberties and the relations between Parliament, the executive and the courts. They operate as constitutional principles which are not easily displaced by a statutory text": ibid. In other words, in the absence of express words or a truly necessary implication, Parliament must be presumed to legislate on the assumption that the principle of legality will supplement the text. This is the theoretical framework against which section 1(1) must be interpreted.

    It is now necessary to examine the practical application of the principle as explained by the House in Sweet v. Parsley [1970] A.C. 132. The decision is of great importance not for the actual decision but for the clear statement of general principle in the speeches. Lord Reid observed (at 148G-149E):

    "Our first duty is to consider the words of the Act: if they show a clear intention to create an absolute offence that is an end of the matter. But such cases are very rare. Sometimes the words of the section which creates a particular offence make it clear that mens rea is required in one form or another. Such cases are quite frequent. But in a very large number of cases there is no clear indication either way. In such cases there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did. That means that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea. . . . it is firmly established by a host of authorities that mens rea is an essential ingredient of every offence unless some reason can be found for holding that that is not necessary.

"It is also firmly established that the fact that other sections of the Act expressly require mens rea, for example because they contain the word "knowingly," is not in itself sufficient to justify a decision that a section which is silent as to mens rea creates an absolute offence. In the absence of a clear indication in the Act that an offence is intended to be an absolute offence, it is necessary to go outside the Act and examine all relevant circumstances in order to establish that this must have been the intention of Parliament. I say "must have been" because it is a universal principle that if a penal provision is reasonably capable of two interpretations, that interpretation which is most favourable to the accused must be adopted."

Lord Reid drew a distinction between "a truly criminal act" and acts which are not truly criminal in any real real sense, but are "acts which in the public interest are prohibited under a penalty": at 149F. He reaffirmed his observations in Reg. v. Warner [1969] A.C. 256 where he gave examples of the latter category of offences. In Sweet v. Parsley he said that in cases of truly criminal acts it is wrong to take into account "no more than the wording of the Act and the character and seriousness of the mischief which constitutes the offence": at 150A. Lord Morris of Borth-y-Gest and Lord Pearce delivered concurring speeches which do not differ in any material way from the approach outlined by Lord Reid. Lord Wilberforce dealt with the case on a narrower basis. Subject to one qualification the speech of Lord Diplock is to the same effect as the speech of Lord Reid. Lord Diplock invoked (at 163A-B):

    "a general principle of construction of any enactment, which creates a criminal offence, that, even where the words used to describe the prohibited conduct would not in any other context connote the necessity for any particular mental element, they are nevertheless to be read as subject to the implication that a necessary element in the offence is the absence of a belief, held honestly and upon reasonable grounds, in the existence of facts which, if true, would make the act innocent." (my emphasis).

The qualification is contained in the underlined words. It is not to be found in the other speeches in Sweet v. Parsley. It is a point to which I will return later in this judgment. Counsel for the Crown accepted that the approach as outlined in Sweet v. Parsley, and in particular in the speech of Lord Reid, is an authoritative and accurate statement of the law. It is only necessary to refer one further decision. In Lim Chin Aik v. The Queen [1963] A.C. 160, at 174, the Privy Council observed that in considering how the presumption can be displaced "it is not enough in their Lordships' opinions merely to label the statute as one dealing with a grave social evil and from that to infer that strict liability was intended." Their Lordships no doubt had in mind that the prevalence of even a grave social evil does not necessarily throw light on the question of what technique was adopted to combat the evil, viz. the creation of an offence of strict liability or an offence of which mens rea is an ingredient.

    Concentrating still on the wording of section 1(1) of the Act of 1960, I now address directly the question whether the presumption is prima facie applicable. Two distinctive features of section 1(1) must be taken in to account. First, the actus reus is widely defined. Unlike the position under sections 14 and 15 of the Act of 1956, an assault is not an ingredient of the offence under section 1(1). Any act of gross indecency with or towards a child under the age of 14, or incitement to such an act, whether committed in public or private, is within its scope. The subsection is apt to cover acts of paedophilia and all responsible citizens will welcome effective legislation in respect of such a great social evil. But it also covers any heterosexual or homosexual contact between teenagers if one of them is under 14. And the actus reus extends to incitement of a child under 14: words are enough. The subsection therefore extends to any verbal sexual overtures between teenagers if one of them is under 14: see the telling examples given by Brooke L.J. in the instant case: at 128H-129C. For the law to criminalise such conduct of teenagers by offences of strict liability would be far reaching and controversial. The second factor is that section 1(1) creates an offence of a truly criminal character. It was initially punishable on indictment by a custodial term of up to two years and by subsequent amendment the maximum term has been increased to ten years' imprisonment. Moreover, as Lord Reid observed in Sweet v. Parsley (at 146H) "a stigma still attaches to any person convicted of a truly criminal offence, and the more serious or more disgraceful the offence the greater the stigma." Taking into account the cumulative effect of these two factors, I am persuaded that, if one concentrates on the language of section 1(1), the presumption is prima facie applicable. It is, however, now necessary to examine weighty contrary arguments based on the broader context in which section 1(1) must be seen. Since counsel for the Crown adopted as part of his argument the reasoning of the Divisional Court, and in particular the reasoning of Rougier J., it is unnecessary to summarise the judgments. Instead I propose to examine directly the major planks of the reasoning contained in the judgments of the Divisional Court and in the submissions of counsel for the Crown. But I would respectfully record my tribute to the careful and elegant judgments in the Divisional Court.

The Acts of 1960 and 1956 are a code

    Counsel for the Crown submitted that the Acts of 1960 and 1956 are a code of sexual offences. He said that the two Acts should be read as one always speaking statute to be interpreted in the world of today: Reg. v. Ireland [1998] A.C. 147, at 158D-G. I regard this approach as sound but by itself it constitutes no positive reason in favour of the displacement of the presumption. If the Act of 1956 is to impress a particular meaning on the Act of 1960 it must be on the basis that its concrete terms provide a consistency of theme.

    Counsel for the Crown was faced with the immediate difficulty that the weight to be attached to a comparison of the language of the two statutes is materially diminished by the history of the evolution of the legislation, which I have already described. The point can be illustrated from a citation in Reg. v. Ireland, supra. The context was an argument based on differences in the wording of sections 18, 20 and 47 of the Offences Against the Person Act 1861. Observing that the difference in language was not a significant factor, I quoted in Ireland from the commentary of Greaves, the draftsman: The Criminal Law Consolidation and Amendment Acts (1861). The passage is at page 159E-F of my judgment which was given with the approval of all members of the Appellate Committee. For convenience I set it out:

    "If any question should arise in which any comparison may be instituted between different sections of any one or several of these Acts, it must be carefully borne in mind in what manner these Acts were framed. None of them was rewritten; on the contrary, each contains enactments taken from different Acts passed at different times and with different views, and frequently varying from each other in phraseology, and . . . these enactments, for the most part, stand in these Acts with little or no variation in their phraseology, and, consequently, their differences in that respect will be found generally to remain in these Acts. It follows, therefore, from hence, that any argument as to a difference in the intention of the legislature, which may be drawn from a difference in the terms of one clause from those in another, will be entitled to no weight in the construction of such clauses; for that argument can only apply with force where an Act is framed from beginning to end with one and the same view, and with the intention of making it thoroughly consistent throughout."

This explanation led to the description of the Act of 1861 (a precursor of the Act of 1956) as containing "a rag-bag of offences brought together from a variety of sources with no attempt, as the draftsman frankly acknowledged, to introduce consistency as to substance or as to form": Reg. v. Parmenter [1992] 1 A.C. 699, at 752, per Lord Ackner, quoting Sir John Smith Q.C. [1991] Cr. L.R. 43. Counsel for the Crown accepted that this is an accurate characterisation of the genesis of the Acts of 1960 and 1956 read together.

The express provision in the Act of 1956

    Adopting the reasoning of Rougier J. counsel for the Crown laid stress on express provisions in the Act of 1956 allowing a defence of mistake. The argument is that where the legislature has been silent on mistake the offence must be one of strict liability. Counsel drew attention to the following provisions. Section 6(3) permits a statutory defence for young men who believe on reasonable grounds a girl to be aged 16 or over. Section 7(2) provides for proof of knowledge in the case of intercourse with an idiot or imbecile. The same applies to procurement of a defective: section 9(2). It also applies to indecent assault on a female defective: section 14(4). Finally, there is such a defence in respect of the offence of permitting a defective to use premises for intercourse: section 27(2). This argument fails to make adequate allowance for the haphazard way in which the Act of 1956 evolved. It is not the product of a rational scheme. The appeal to its diverse provisions enacted in response to the felt necessities of different times does not deserve the weight which the Divisional Court and counsel for the Crown put on it. Moreover, it fails to take account of the force of the presumption, and in particular Lord Reid's observation in Sweet v. Parsley, supra, at 149D that it is "firmly established that the fact that other sections of the Act expressly require mens rea, for example because they contain the word "knowingly," is not in itself sufficient to justify a decision that a section which is silent as to mens rea creates an absolute offence." In my view the express references to knowledge in the Act of 1956 does not sufficiently clearly displace the presumption.

Sections 14 and 15 of the Act of 1956.

    Counsel for the Crown also put forward a narrower but more formidable argument. Section 13 of the Act of 1956, which deals with acts of gross indecency between men, is the closest comparator to section 1(1) of the Act of 1960. But, it does not involve an age-based offence. In these circumstances he described section 14 and 15 as the most significant comparators in the present context. He relied on the fact that it had been held in the cases of Forde and Maughan that an honest belief that the girl or boy is over 16 is no defence. On that basis he rhetorically asked: Why should the same not apply to section 1(1) of the Act of 1960? As I have already pointed out counsel for the appellant challenged the correctness of these decisions. For my part it is not necessary to examine the legal position under section 14 and 15. While I accept that the matter is finely balanced, I am persuaded that the balance of arguments point to a rejection of this submission. The scope of sections 14 and 15 is markedly narrower than section 1(1) with which this case is concerned. Under sections 14 and 15 an assault is an ingredient of the offence. And an assault necessarily requires an intentional act: an accidental contact would not be an assault. To that extent at least mens rea is an ingredient. By contrast section 1(1) does not require an assault. It criminalises a far wider spectrum of acts. And the age of the victim is of the essence of the offence. Absent the age factor, such conduct is not criminal. By contrast any indecent assault has been a crime for centuries. In my view a comparison of the language of sections 14 and 15 and section 1(1) does not point towards the displacement of the presumption. It is not a solid basis for a necessary implication rendering the principle enunciated in Sweet v. Parsley inapplicable.

The legislative policy of the Act of 1956.

    Counsel for the Crown next submitted that a necessary implication negativing mens rea as an ingredient of the offence is to be found in the general legislative policy of the Act of 1956 to protect girls under the age of 16: see section 5, 6, 14, 15, 26 and 28. It is undoubtedly right that there is a clear legislative policy prohibiting the sexual exploitation of girls. It is unquestionably a great social evil as Lord Hutton has so clearly explained. Whatever can be done sensibly and justly to stamp it out ought to be done. The real question is: what does this policy tell us about the critical question whether section 1(1) is an offence of strict liability or not? It is not enough to label the statute as one dealing with a grave social evil and from that to infer that strict liability was intended: see Lim Chin Aik v. The Queen, supra, at 174. Moreover, upon analysis the argument is far from compelling. It infers from the premise of the legislative policy directed against the mischief a conclusion that the legislature gave clear expression to a choice of the solution of creating an offence of strict liability rather than an offence containing mens rea as an ingredient. The cardinal principle of construction described by Lord Reid in Sweet v. Parsley is not to be displaced by such speculative considerations as to the chosen legislative technique. I would reject this argument.

Prince's case

    Counsel for the Crown also relied on what he described as a principle of construction established in Reg. v. Prince (1875) L.R. 2 C.C.R. 154. In Prince the defendant was convicted under a Victorian statute of unlawfully taking an unmarried girl under the age of 16 out the possession of her father. The defendant bona fide and on reasonable grounds believed that the girl was over 16. The judge referred the question of the availability of the defence to the Court for Crown Cases Reserved. The court consisted of 16 judges. The prisoner was not represented. By a majority of 15 to 1 the court held that there was no such defence. The leading judgment was given by Blackburn J. with the concurrence of nine other judges. Blackburn J. relied strongly on a drafting flaw in sections 50 and 51 of the Offences Against the Person Act 1861. The two sections respectively provided for offences of sexual intercourse with a girl under ten (section 50) and above the age of ten years and under the age of twelve years (section 51). The first was a felony and the latter a misdemeanour. Blackburn J. produced what Professor Sir Rupert Cross in a magisterial article described as a "knock-out" argument: Centenary Reflections on Prince's case (1975) 91 L.Q.R. 540. The passage in Blackburn's J. judgment reads as follows.

    "It seems impossible to suppose that the intention of the legislature in those two sections could have been to make the crime depend upon the knowledge of the prisoner of the girl's actual age. It would produce the monstrous result that a man who had carnal connection with a girl, in reality not quite ten years old, but whom he on reasonable grounds believed to be a little more than ten, was to escape altogether. He could not, in that view of the statute, be convicted of the felony, for he did not know her to be under ten. He could not be convicted of the misdemeanour, because she was in fact not above the age of ten. It seems to us that the intention of the legislature was to punish those who had connection with young girls, though with their consent, unless the girl was in fact old enough to give a valid consent. The man who has connection with a child, relying on her consent, does it at his peril, if she is below the statutable age. The 55th section, on which the present case arises, uses precisely the same words as those in sections 50 and 51, and must be construed in the same way."

 
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