|Judgments - B (By His Mother and Next Friend) v. Director of Public Prosecutions
Eventually the distinction between felonies and misdemeanours was abolished and the drafting flaw in the earlier legislation no longer exists. The principal ground of the decision of Blackburn J. has disappeared. It is true that Bramwell B. gave a separate judgment in which seven judges concurred. This judgment is largely based on the view that the defendant was guilty in law because if the facts had been as he supposed he would have acted immorally. For the further reasons given by Sir Rupert Cross in his article one can be confident that the reasoning of Bramwell B., if tested in a modern court, would not be upheld: see also DPP v. Morgan  A.C. 182, at 238, per Lord Fraser of Tullybelton; and the valuable discussion by Brooke L.J. of the context of Prince's case: at 130B-132B. Significantly, Prince's case was cited in Sweet v. Parsley but was not mentioned in any of the judgments. The view may have prevailed that it was not necessary to overrule it because its basis had gone and that the principle laid down in Sweet v. Parsley would in future be the controlling one. In any event, I would reject the contention that there is a special rule of construction in respect of age- based sexual offences which is untouched by the presumption as explained in Sweet v. Parsley. Moreover, Prince's case is out of line with the modern trend in criminal law which is that a defendant should be judged on the facts as he believes them to be: D.P.P. v. Morgan  A.C. 182; Williams (1984) 78 Cr.App.R. 276; Beckford v. R.  A.C. 130. This development has led the Criminal Law Revision Committee to recommend that the rules be harmonised and that the prosecution should prove that the man realised that the girl was under 16: Fifteenth Report, 1984, paras. 5.5-5.15. Its recommendation was repeated by Brooke L.J. in the instant case: at 136B-E. For all these reasons I would reject counsel's attempt to reinvigorate Prince's case: it is a relic from an age dead and gone. It is no longer possible to extract from Prince's case a special principle of construction applicable only to age-based sexual offences.
Counsel for the Crown finally submitted that it would in practice be difficult for the Crown to disprove defences of lack of knowledge of the age of the victim. In my view counsel has overstated the difficulties. After all, the legislature expressly made available such an excuse in the case of the so-called "young man's defence" under section 6(3). Moreover, as Brooke L.J. pointed out in the Divisional Court recklessness or indifference as to the existence of the prohibited circumstance would be sufficient for guilt: at 129B. And in practice the Crown would only have to shoulder the burden of proving that the defendant was aware of the age of the victim if there was some evidential material before the jury or magistrates suggesting the possibility of an honest belief that the child was over 14. In these circumstances the suggested evidential difficulties ought not to divert the House from a principled approach to the problem.
My Lords, for these reasons, as well as reasons given by Lord Hutton, I would answer the principal certified question in the affirmative.
The supplementary certified questions:
Given my conclusion on the first certified question the following supplementary certified questions arise:
Counsel for the Crown did not argue, in the alternative, that the belief must be held on reasonable grounds. Nevertheless, I initially regarded such a requirement as an acceptable solution. A basis for this view would be Lord Diplock's observation in Sweet v. Parsley. This view is however contrary to the way in which our criminal law has subsequently developed. In D.P.P. v. Morgan  A.C. 182 the House of Lords held by a majority of three to two that when a defendant had sexual intercourse with a woman without her consent, genuinely believing that she did consent, he was not guilty of rape, even if he had no reasonable grounds for his belief. The importance of this decision for the coherent development of English law was not immediately appreciated. The next stage in the development was the decision of the Court of Appeal in Reg. v. Williams (1983) 78 Cr.App.R. 276. The charge was assault. The defendant argued that he used force in the honest belief that he was protecting somebody else from an unlawful assault. Holding that the jury had been materially misdirected, the Court of Appeal, applying the logic of Morgan, held that if the defendant believed, reasonably or not, in the existence of facts which would justify the force used in self- defence, he did not intend to use unlawful force. The decision in Williams was followed and approved and applied by the Privy Council in Beckford v. The Queen  A.C. 130. It was held that if the defendant honestly believed the circumstances to be such as would, if true, justify his use of force to defend himself from attack and the force was no more than reasonable to resist the attack, he was entitled to be acquitted of murder; since the intent to act unlawfully would be negatived by his belief, however mistaken or unreasonable. Morgan was described as the "a landmark decision in the development of the common law": Beckford v. R. supra, at 145C. There has been a general shift from objectivism to subjectivism in this branch of the law. It is now settled as a matter of general principle that mistake, whether reasonable or not, is a defence where it prevents the defendant from having the mens rea which the law requires for the crime with which he is charged. It would be in disharmony with this development now to rule that in respect of a defence under subsection 1(1) of the Act of 1960 the belief must be based on reasonable grounds. Moreover, if such a special solution were to be adopted, it would almost certainly create uncertainty in other parts of the criminal law. It would be difficult to confine it on a principled basis to subsection 1(1). I would answer question (a) in the negative.
That leaves question (b). In Woolmington v. D.P.P.  A.C. 462, at 481, Viscount Sankey L.C. observed that "throughout the web of the English criminal law one golden thread is to be seen, that it is the duty of the prosecution to prove the prisoner's guilt." It provides the answer to question (b). There is no legally sound basis on which it would be possible to rule that the burden is on the defendant to prove an honest belief that the victim was over 14 years.
My Lords, I am in general agreement with the speech of Lord Hutton. For the reasons I have given, as well as for reasons given by Lord Hutton, I would allow the appeal and quash the conviction of the appellant.
The governing principle on the issue of strict liability in a statutory offence was stated by Lord Reid in Sweet v. Parsley  A.C. 132, 148H:
And at page 163B Lord Diplock said:
The principle has also been formulated by stating that the requirement for mens rea is only ruled out if by necessary implication this is the effect of the statute. In Brend v. Wood  175 L.T. 306, 307 Lord Goddard C.J. said:
And in Gammon (Hong Kong) Ltd. v. Attorney-General of Hong Kong  A.C. 1, 14, in delivering the judgment of the Board Lord Scarman referred to "necessary implication" in the third proposition:
Section 1(1) of the 1960 Act does not clearly rule out mens rea as a constituent part of an offence, and therefore the crucial question is whether it rules it out by necessary implication. On this issue I consider the arguments for the appellant and the Crown to be almost evenly balanced. In my opinion the points advanced by the Crown carry considerable weight. The purpose of Section 1(1) is clearly to protect children under the age of fourteen from sexual corruption: to protect their "sexual integrity" (to employ the term used by Professor Ashworth in his illuminating article on "Interpreting Criminal Statutes: A Crisis of Legality?" 107 L.Q.R. 419, 446). This purpose may be impeded if the happiness and stability of a child under fourteen is harmed by the violation of his or her innocence by some act of gross indecency or incitement to gross indecency committed by a person who honestly believes that the child is older than fourteen. Although more than a century has passed since the judgments in Regina v. Prince (1875) L.R. 2 C.C.R. 154, and although his reasoning was strongly influenced by the drafting error in Sections 50 and 51 of the Offences Against the Person Act 1861, I consider that there is still force in the view of Blackburn J., at page 171 which, although stated in relation to carnal knowledge of a girl under the age of ten or under the age of twelve, is also applicable to indecent conduct towards a child under fourteen:
Therefore I recognise the force of the approach taken by Rougier J. in the Divisional Court at page 120G:
This approach recognises, rightly in my opinion, that in a criminal statute intended to protect children the courts should not focus solely on the rights of the accused but should also take into account the right of children to be protected. In the article to which I have referred Professor Ashworth states at page 446 that most English writers on criminal law "have laid emphasis on liberal ideals such as the principle of legality (in terms of non-retroactivity, maximum certainty and restrictive construction), the presumption of innocence, the principle of autonomy and subjective principles of liability, the doctrine of fair opportunity and so forth".
In the next paragraph Professor Ashworth says:
Two further interrelated points support the argument of the Crown. One is that, as Rougier J. states, the Act of 1960 is an appendix to the Act of 1956, and the wording of Sections 5 and 6 of the 1956 Act relating respectively to intercourse with a girl under thirteen and to intercourse with a girl under sixteen, but with the latter section providing in subsection (3) for "the young man's defence", makes it plain that the offence under Section 5 is an offence of strict liability. Therefore it is clear that in the Act of 1956 Parliament intended that there should be strict liability when a man had sexual intercourse with a girl under thirteen, and accordingly it can be argued that it is in accordance with the intention of Parliament that there should be strict liability when a person is guilty of gross indecency towards a child under fourteen. The second point is that in addition to Section 6(3) there are a number of sections in the Act of 1956 which expressly provide for a defence of mistake. In the case of intercourse with a woman who is a defective Section 7(2) provides a defence if the man does not know and has no reason to suspect the woman to be a defective. The same applies to the offence of procurement of a defective: see Section 9(2). The same defence applies to indecent assault on a woman defective: see Section 14(4). The same defence is available in respect of permitting a defective to use premises for intercourse or causing or encouraging the prostitution of a defective: see Section 27(2) and Section 29(2). Therefore the Crown can argue with considerable force that when Parliament intends that there should be a defence of mistake it makes express provision for this defence, so that where there is no express provision for such a defence the statute by implication intends that the defence will not be available. This point is well stated by Tucker J. in his judgment at page 127H:
Therefore I consider that it would be reasonable to infer that it was the intention of Parliament that liability under Section 1(1) of the Act of 1960 should be strict so that an honest belief as to the age of the child would not be a defence. But the test is not whether it is a reasonable implication that the statute rules out mens rea as a constituent part of the crime - the test is whether it is a necessary implication. Applying this test, I am of opinion that there are considerations which point to the conclusion that it is not a necessary implication. One is that the various provisions of the Act of 1956 have not been drafted to give effect to a consistent scheme but are a collection of diverse provisions derived from a variety of sources: see the description of the Offences Against the Person Act 1861, a precursor of the Act of 1956, by Lord Ackner in Regina v. Savage  1 A.C. 699, 752, quoting Sir John Smith Q.C. (1991) Cr. L.R. 43. A further consideration is that in Sweet v. Parsley Lord Reid stated at page 149D:
Whilst, as I have stated, I think there is force in the view expressed by Blackburn J. at page 171-2 of Regina v. Prince, I am of opinion that to the extent that Prince's case can be viewed as establishing a general rule that mistake as to age does not afford a defence in age-based sexual offences, that rule cannot prevail over the presumption stated by this House in Sweet v. Parsley.
Therefore, for the reasons which I have stated, I would allow this appeal and I would answer the first certified question in the negative. For the reasons which have been stated by my noble and learned friend Lord Steyn, and with which I agree, I would answer part (a) of the second certified question in the affirmative, and I would answer part (b) by stating that the burden of proof rests on the Crown once the defendant has raised some evidence before the jury or magistrates that he or she honestly believed the child was over fourteen.