(back to preceding text)

    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 [1976] 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 [1976] A.C. 182; Williams (1984) 78 Cr.App.R. 276; Beckford v. R. [1988] 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.

Practical difficulties

    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.

Conclusion

    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:

(a) Must the belief be held on reasonable grounds?

(b) On whom does the burden of proof lie?

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 [1976] 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 [1988] 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. [1935] 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.

Conclusion

    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.

LORD HUTTON

My Lords,

    The governing principle on the issue of strict liability in a statutory offence was stated by Lord Reid in Sweet v. Parsley [1970] A.C. 132, 148H:

"… 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."

And at page 163B Lord Diplock said:

". . . [it is] 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. As was said by the Privy Council in Bank of New South Wales v. Piper [1897] A.C. 383, 389, 390, the absence of mens rea really consists in such a belief by the accused."

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 [1946] 175 L.T. 306, 307 Lord Goddard C.J. said:

"It is of the utmost importance for the protection of the liberty of the subject that a court should always bear in mind that, unless a statute, either clearly or by necessary implication, rules out mens rea as a constituent part of a crime, the court should not find a man guilty of an offence against the criminal law unless he has a guilty mind."

And in Gammon (Hong Kong) Ltd. v. Attorney-General of Hong Kong [1985] A.C. 1, 14, in delivering the judgment of the Board Lord Scarman referred to "necessary implication" in the third proposition:

"In their Lordships' opinion, the law relevant to this appeal may be stated in the following propositions (the formulation of which follows closely the written submission of the appellants' counsel, which their Lordships gratefully acknowledge): (1) there is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence; (2) the presumption is particularly strong where the offence is 'truly criminal' in character; (3) the presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute; (4) the only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern, and public safety is such an issue; (5) even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act."

    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:

"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."

    Therefore I recognise the force of the approach taken by Rougier J. in the Divisional Court at page 120G:

"Though any violation of a child's innocence attracts very grave stigma, yet the protection of children from sexual abuse is a social and moral imperative."

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:

"It is not sought to deny that the liberal ideals mentioned in the last paragraph have a central place in criminal law doctrine, but they should not be presented as if they stand alone as absolutes. It was suggested above that some judges derive their motivation directly from a conception of the aim of criminal law as penalising those who cause major harms. One of the policies derived from this perspective is the 'thin ice' principle, discussed above; whilst there is a tendency to use a broad phrase such as 'public policy' or 'social defence' to encompass these policies, it is necessary to look more closely at distinct policies and the ends they are claimed to serve. It would not stretch the truth too far to suggest that the typical academic approach has been to emphasise liberal values and the traditional judicial approach to emphasise what they regard as social values in these matters. The first step is to recognise that values of both kinds do and should form part of criminal law doctrine. The next step is to recognise that they will frequently conflict and that, whilst careful discussion of the principles and policies will give some indication as to how conflicts should be resolved, situations will occur in which the courts must make that choice. This makes it crucial that the policies and principles are openly discussed, rather than concealed behind high-sounding phrases about 'legislative intent', 'public policy' or 'the principle of legality'."

    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:

"I deduce from all these statutory provisions that it is the clear intention of Parliament to protect young children and to make it an offence to commit offences against children under a certain age whether or not the defendant knows of the age of the victim, and that it was intended that, save where expressly provided, a mistaken or honest belief in the victim's age should not afford a defence."

    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 [1992] 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:

"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."

    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.