House of Lords
|Session 2001- 02
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|Judgments - Regina v. K
HOUSE OF LORDS
Lord Bingham of Cornhill Lord Nicholls of Birkenhead Lord Steyn Lord Hobhouse of Wood-borough Lord Millett
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL DIVISION))
ON 25 JULY 2001
 UKHL 41
LORD BINGHAM OF CORNHILL
1. The appellant K was indicted on a single count of indecent assault committed against a girl C who at the time was aged 14, contrary to section 14(1) of the Sexual Offences Act 1956. His defence was to be that the sexual activity between him and C was consensual, that she had told him she was 16 and that he had had no reason to disbelieve her. He is a man of good character, aged 26 at the date of the offence charged against him. Before the trial a preliminary issue was raised on behalf of K: whether, to establish K's guilt under the section, the prosecution had to prove that at the time of the incident K did not honestly believe that C was 16 or over. Argument on this issue was heard by his Honour Judge Thorpe at the Chichester Crown Court. He ruled, in favour of K, that the prosecution did have to prove an absence of genuine belief on the part of the accused that the victim was aged 16 or over. In so ruling the judge relied on the recent decision of the House of Lords in B (A Minor) v Director of Public Prosecutions  2 AC 428. The prosecution appealed against that ruling under section 35 of the Criminal Procedure and Investigations Act 1996. The Court of Appeal (Criminal Division) (Roch LJ, Rougier and Gray JJ) allowed the appeal and held that such absence of genuine belief did not have to be proved. The court certified the following point of law of general public importance:
Leave to appeal was refused by the Court of Appeal but granted by the House.
2. Section 14 of the 1956 Act is in these terms:
This section is matched by a parallel section, section 15, which makes it an offence for a person to make an indecent assault on a man. Subsections (2) and (3) of section 15 are to the same effect, in relation to men, as subsections (2) and (4) in relation to women.
3. If the provisions of section 14 were part of a single, coherent legislative scheme and were read without reference to any overriding presumption of statutory interpretation, there would be great force in the simple submission which Mr Scrivener, resisting this appeal on behalf of the crown, based upon them: subsections (3) and (4) define circumstances in which a defendant's belief, knowledge or suspicion exonerate a defendant from liability for what would otherwise be an indecent assault; if it had been intended to exonerate a defendant who believed a complainant to be 16 or over, this ground of exoneration would have been expressed in subsection (2); the omission of such a provision makes plain that no such ground of exoneration was intended.
4. It is, however, plain that section 14 was not part of a single, coherent legislative scheme. The 1956 Act was a consolidation Act. Its provisions derived from diverse sources. The rag-bag nature of the 1956 Act and its predecessor statutes has been the subject of repeated comment: see, for example, the observations of the draftsman of the 1861 Act quoted in B (A Minor) v Director of Public Prosecutions  2 AC 428, 473D; the criticisms of Lord Nicholls of Birkenhead in the same case, at p 465G; the description of the Act by Professor Lacey as "a patchwork of pre-existing offences" in  Crim LR 3, at p 3; the recognition of the Home Office in "Setting the Boundaries, Reforming the law on sex offences" (July 2000, vol 1, para 3.2.3) that the present legislation "does not form a coherent code".
5. Section 14(1) derives from section 52 of the Offences against the Person Act 1861. At common law there was no offence of indecent assault. Section 52 of the 1861 Act criminalised "any indecent assault upon any female". The maximum penalty was two years' imprisonment. Since conduct is not generally an assault in law if done with the consent of the alleged victim, it seems clear that the consent of the victim, whatever her age, defeated a charge under this section as originally enacted.
6. Plainly this provision gave inadequate protection to children, whose inherent immaturity was understandably regarded as impairing any consent they might give. There was legitimate public concern when a defendant accused of indecently assaulting a child of 6 years relied successfully on the consent of the child. There could have been no belief on the defendant's part that the child was over the age of consent, so that issue did not arise. In the Criminal Law Amendment Act 1880 (43 & 44 Vict, c45) it was provided that it should be no defence to a charge of indecent assault on a young person under the age of 13 to prove that he or she consented to the act of indecency. This provision was re-enacted in section 1 of the Criminal Law Amendment Act 1922 (with an increase of the age to 16). It is the source of section 14(2).
7. Until 1929 England and Wales adhered to the old canon law rule that boys could be married at 14 and girls at 12. The Age of Marriage Act of that year provided that a marriage between persons either of whom was under the age of 16 should be void. This enactment was subject to a proviso that in any proceedings against a person charged under section 5(1) of the Criminal Law Amendment Act 1885 (48 & 49 Vict, c69) or with indecent assault it should be a sufficient defence to prove that at the time when the offence was alleged to have been committed he had reason to believe that the alleged victim was his wife. This proviso was repealed by the Marriage Act 1949 (which re-enacted the age limit) but the repeal was itself repealed in 1953. Section 14(3) thus derives from sources quite different from the other provisions of the 1956 Act with which the House is concerned.
8. Section 14(4) derives from section 56(3) of the Mental Deficiency Act 1913 which provided that no consent should be any defence in any proceedings for an indecent assault upon any defective, if the accused knew or had reason to suspect that the person in respect of whom the offence was committed was a defective.
9. Since the 1956 Act was a consolidation Act, with corrections and improvements to the expression but not to the substance of existing provisions (see generally Halsbury's Laws of England, 4th ed reissue, vol 44(1) (1995), para 1247), it is not surprising that the terms of section 14 reflected their miscellaneous origins. But that section cannot properly be considered in isolation. Section 50 of the 1861 Act made unlawful carnal knowledge of a girl under the age of 10 a felony punishable by penal servitude for life. Section 51 made unlawful carnal knowledge of a girl aged 10 or 11 a misdemeanour punishable by up to three years' penal servitude. It was these sections to which Blackburn J, with the concurrence of nine other judges, referred in the course of his ruling in R v Prince (1875) LR 2 CCR 154, 171-172 that for purposes of section 55 of the 1861 Act it was no defence for a defendant charged with taking an unmarried girl under the age of 16 out of the possession of her father to establish a reasonable belief that she was over 16:
10. But the law did not rest there. By section 5 of the Criminal Law Amendment Act 1885 it was provided that:
A similar provision based on reasonable belief that a girl was of or above the age of 16 was included in section 6 of this Act. Thus, despite the view of the strong majority in R v Prince, a potential defence based upon belief as to age was expressly introduced. This defence was significantly modified by section 2 of the Criminal Law Amendment Act 1922, which provided:
Thus was introduced what came to be known as the statutory or young man's defence. The slipshod drafting of the section is evident from its closing words since section 2 created no offence with which any defendant could ever be charged. But the section gave rise to a much more fundamental anomaly. If a defendant was charged under section 5(1) with the very serious offence of having unlawful carnal knowledge of a girl aged between 13 and 16, the statutory defence was potentially open to a man of 23 or under charged for the first time. If, however, the man was charged with the lesser offence of indecently assaulting a child or young person under the age of 16 (an offence inevitably committed if he had intercourse with her), there was no express provision enabling the defendant to rely on an honest belief that the child or young person was over the age of 16.
11. It was not long before this anomaly became apparent. In R v Forde  2 KB 400 a young man, under the age of 23, had intercourse with a 15 year-old girl. He was charged with offences against section 5(1) of the 1885 Act and section 52 of the 1861 Act, both offences relating to the same act of intercourse. He pleaded not guilty to the first (more serious) offence but guilty to the second and was bound over. It was found as a fact that he had had reasonable cause to believe that the girl was over 16 and the charge under section 5 was not proceeded with. He appealed by leave of the trial judge, and it was argued that, to avoid absurdity, the statutory defence should be available in relation to the indecent assault charge as well as the carnal knowledge charge, where the indecent assault was the act of carnal knowledge. Counsel for the crown did not contend that the result of the statute was not absurd but said the law was clear. The Court of Criminal Appeal upheld the conviction. Giving the judgment of the court Avory J said, at p 404:
12. In R v Laws (1928) 21 Cr App R 45 the defendant had intercourse with a girl aged 15 years and 9 months. He was about a year older. He could rely on the statutory defence to a charge laid against him under section 5 of the 1885 Act, but pleaded guilty to a count of indecent assault arising out of the same incident. Lord Hewart CJ, at p 46, described it as "a grotesque state of affairs that the law offers a defence upon the major charge, but excludes that defence if the minor charge is preferred". But the conviction was upheld. The defendant's sentence of four months' imprisonment was reduced to a nominal sentence of one day.
13. The defendant in R v Keech (1929) 21 Cr App R 125 was aged 21 at the relevant time. He had intercourse with a girl under the age of 16 and faced counts of unlawful carnal knowledge and indecent assault, the facts relied on in relation to both sets of counts being the same. The mother of the victim gave evidence that at the time of the relevant events the girl looked 18, and but for the recent increase in the minimum age of marriage the two would have been married. The defendant was acquitted on the carnal knowledge count, no doubt in reliance on the statutory defence, but was convicted on the indecent assault count. The 1922 Act was again described as "grotesque" (at p 128) and the legislation was described by Lord Hewart CJ as "amazing" (p 131). But the conviction was upheld and the sentence of one month's imprisonment reduced to one day, which permitted the immediate discharge of the defendant.14.
R v Maughan (1934) 24 Cr App R 130 repeated the story. The defendant was aged 22, the child between 13 and 16. There were six counts, three of carnal knowledge, three of indecent assault, arising from the same facts. He was acquitted on the carnal knowledge counts, plainly because he made good the statutory defence. He was convicted on the three counts of indecent assault. On appeal, with the certificate of the trial judge, it was argued that the defendant could rely on a defence of mistaken fact based on the child's age. Despite the "apparent absurdity resulting from this state of legislation" (at p 133) the appeal was dismissed. But the trial judge had passed a nominal sentence of two days' imprisonment to run from the first day of the assizes and this resulted in the immediate discharge of the defendant.
15. Since the 1956 Act was a consolidation Act, there was no opportunity to correct this apparent absurdity. Section 5 of this Act again made it a felony to have unlawful sexual intercourse with a girl under the age of 13. Section 6 as enacted again made it an offence, subject to the exceptions in the section, for a man to have unlawful sexual intercourse with a girl not under the age of 13 but under the age of 16. One of the exceptions, in subsection (2), corresponded to the invalid marriage exception in section 14(3). The second exception, in subsection (3), reproduced the statutory or young man's defence. Thus the anomaly highlighted by the cases cited above was perpetuated. Asked to suggest any reason why it could rationally have been intended to provide the statutory defence where full intercourse took place and no defence based on belief as to the child's age when intercourse was charged as indecent assault, leading counsel for the crown in the present appeal was unable to assist, as his predecessor in R v Forde had been in 1923.
16. Even before enactment of the 1956 Act, a lacuna in the existing legislation had come to light. In both Fairclough v Whipp  2 All ER 834 and Director of Public Prosecutions v Rogers  1 WLR 1017 there had been objectionable acts of indecency, in the first case involving an adult man and a child of nine, in the second a father and his eleven year-old daughter. But in neither case had there been an assault since the child had, at the adult's invitation, touched him, albeit indecently. Following a report of the Criminal Law Revision Committee in 1959 (Cmnd 835) Parliament enacted the Indecency with Children Act 1960 which in section 1(1) provided:
In B (a Minor) v Director of Public Prosecutions  2 AC 428 the issue was whether, under that section, it was necessary for the prosecution to prove the absence of a genuine belief on the part of the defendant that the child was over the specified age of 14. The House (Lord Irvine of Lairg LC, Lord Mackay of Clashfern, Lord Nicholls of Birkenhead, Lord Steyn and Lord Hutton) unanimously held that it was.
17. In reaching this conclusion the House relied on
Lord Steyn, at p 470F, quoting from Professor Sir Rupert Cross, referred to the presumption that mens rea is required in the case of all statutory crimes, a presumption operating as a constitutional principle and not easily displaced by a statutory text. Crucial to the conclusion of the House was the now classic statement of principle in the speech of Lord Reid in Sweet v Parsley  AC 132, 148-150. The speech is too well known to require extensive citation; brief extracts will suffice:
The general rule that a crime involves a guilty mind as well as a forbidden act is, as the Latin version of the rule makes clear and as Lord Reid emphasised, of very long standing. Brett J in his dissenting judgment in R v Prince (1875) LR 2 CCR 154 referred to it at pp 159-169, concluding, at p169:
In R v Tolson (1889) 23 QBD 168 Stephen J, an authority on the criminal law without rival in his time, observed, at p 187:
In Sherras v De Rutzen  1 QB 918, 921 Wright J held:
He then went on to give examples of regulatory provisions which excluded the presumption of mens rea. In Brend v Wood (1946) 62 TLR 462 Lord Goddard CJ re-stated the rule, at p 463:
Although in a minority, Lord Reid in R v Warner  2 AC 256 anticipated much of what he was to say, authoritatively, in Sweet v Parsley. Later, expression was given to the presumption by, among others, Lord Scarman in Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong  AC 1, 14. Thus the rule is not of recent growth, although it has at times been neglected. As Lord Reid observed in Sweet v Parsley, at p 150:
18. The rule that a person under the age of 16 could not in law consent to what would otherwise be an indecent assault led to the description of an offence under section 14(1) or 15(1) against a victim under the age of 16 as an absolute offence or an offence of strict liability. These descriptions were a misnomer. There always had to be such deliberation in the conduct of the defendant as would be necessary to prove an assault. But the need for mens rea in a fuller sense was made clear by the Court of Appeal (Criminal Division) (Lawton LJ, Michael Davies and Sheldon JJ) in R v Kimber  1 WLR 1118. In that case the charge was one of indecent assault contrary to section 14(1) of the 1956 Act and the victim was an adult. The recorder directed the jury that the sole issue for their consideration was whether the victim had given her real and genuine consent, adding that it did not matter whether the defendant believed or thought she was consenting. This was held to be a misdirection, at pp 1121E-1122A:
19. In B (A Minor) v Director of Public Prosecutions  2 AC 428 the House considered section 1(1) of the 1960 Act in the light of the presumption that guilty knowledge is an essential ingredient of a statutory offence unless it is shown to be excluded by express words or necessary implication. It found no express words and no necessary implication having that effect. It was accordingly necessary for the prosecution to prove the absence of a genuine belief on the part of the defendant, whether reasonable or not, that the victim had been 14 or over. The House was invited in that case (see pp 457G, 473A) to treat the Acts of 1956 and 1960 as part of a single code, and that approach seems to me to be plainly correct. It is at once obvious that if an absence of genuine belief as to the age of an under-age victim must be proved against a defendant under section 1 of the 1960 Act but not against a defendant under section 14 of the 1956 Act, another glaring anomaly would be introduced into this legislation. But that conclusion does not relieve the House of the need to carry out, in relation to section 14, the task that it carried out in relation to section 1.