|Judgments - Regina v. K
20. Neither in section 14 nor elsewhere in the 1956 Act is there any express exclusion of the need to prove an absence of genuine belief on the part of a defendant as to the age of an under-age victim. Had it been intended to exclude that element of mens rea it could very conveniently have been so provided in or following subsection (2)
21. For reasons already given, significance cannot be attached to the inclusion of grounds of exoneration in subsections (3) and (4) and the omission of such a ground from subsection (2), although subsections (3) and (4) do reflect parliamentary recognition that a defendant should not be criminally liable if he misapprehends a factual matter on which his criminal liability depends. There is nothing in the language of this statute which justifies, as a matter of necessary implication, the conclusion that Parliament must have intended to exclude this ingredient of mens rea in section 14 any more than in section 1. If the effect of the presumption is read into section 14, with reference to the defendant's belief as to the age of the victim, no absurdity results. With the wisdom of hindsight it can be seen that Avory J was right to hold, in R v Forde  2 KB 400, that the statutory defence in section 2 of the 1922 Act could not be read into section 1 of that Act, but he was wrong in failing to apply to section 1 of the 1922 Act the overriding presumption referred to in paragraph 17 above. He may, no doubt, have been misled by the now discredited authority of R v Prince (1875) LR 2 CCR 154, which although not apparently cited will have been very familiar to him.
22. I consider that Judge Thorpe reached the right conclusion. The Court of Appeal gave more weight to the re-enactment of the relevant provisions in 1956 than was appropriate for a consolidation Act.
23. I would accordingly give an affirmative answer to the first certified question. It is common ground that a negative answer should be given to the second question. In giving those answers I would make the following concluding points:
(1) Nothing in this opinion has any bearing on a case in which the victim does not in fact consent. While section 14(2) provides that a girl under the age of 16 cannot in law give any consent which would prevent an act being an assault, she may in fact (although not in law) consent. If it is shown that she did not consent, and that the defendant did not genuinely believe that she consented, any belief by the defendant concerning her age is irrelevant, since her age is relevant only to her capacity to consent.
(2) While a defendant's belief need not be reasonable provided it is honest and genuine, the reasonableness or unreasonableness of the belief is by no means irrelevant. The more unreasonable the belief, the less likely it is to be accepted as genuine: see R v Williams (Gladstone)  3 All ER 411, 415.
(3) Although properly applied to section 1 of the 1960 Act and section 14 of the 1956 Act, the presumption cannot be applied to sections 5 and 6 of the 1956 Act. Those sections as a pair derive directly from corresponding sections in the 1861 Act, as demonstrated above. The statutory or young man's defence was introduced into what is now section 6. Its omission from what is now section 5 is plainly deliberate. A genuine belief that a child three years under the age of consent was over that age would in any event defy credulity. Section 6(3) of the 1956 Act plainly defines the state of knowledge which will exonerate a defendant accused under that section, and this express provision necessarily excludes the more general presumption.(4)
Nothing in this opinion should be taken to minimise the potential seriousness of the offence of indecent assault. While some instances of the offence may be relatively minor, others may be scarcely less serious than rape itself. This is reflected in the maximum penalty, now increased to 10 years', and the mandatory requirement that those convicted be subject to the notification requirements of the Sex Offenders Act 1997. These considerations make it more rather than less important that, in any forthcoming recasting of the law on sexual offences, the mens rea requirement should be defined with extreme care and precision. Parliament is sovereign and has the responsibility to decide where the boundaries of criminal activity should be drawn. Consideration will no doubt be given to the Law Commission's draft criminal code (Law Com. No 177, HC299, April 1989) in clauses 114 and 115:
Clause 115 is to the same effect, save that the specified age is 16.
24. The rule of law is not well served if a crime is defined in terms wide enough to cover conduct which is not regarded as criminal and it is then left to the prosecuting authorities to exercise a blanket discretion not to prosecute to avoid injustice.
25. I find it unnecessary to consider an argument addressed to the House based on article 6 of the European Convention on Human Rights.
26. For these reasons, and also those given by my noble and learned friends Lord Steyn and Lord Hobhouse of Woodborough, I would allow this appeal.
LORD NICHOLLS OF BIRKENHEAD
27. I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Bingham of Cornhill. For the reasons he gives, and with which I agree, I too would allow this apeal.
28. The Court of Appeal certified the following points of law of general public importance:
If question (a) is answered in the affirmative, the Director of Public Prosecutions now accepts that (b) must be answered in the negative, ie it is not necessary that the belief must be held on reasonable grounds. Given the recent unanimous decision of the House on a similar point in B (A Minor) v Director of Public Prosecutions  2 AC 428 the concession was rightly made. Only the first question remains for consideration. I am in full agreement with the reasons given by Lord Bingham of Cornhill for answering this question in the affirmative. Given the importance of the point I will, however, summarise the considerations which have influenced my conclusion.
29. The question before the House is one of the proper construction of section 14(1) of the Sexual Offences Act 1956. Counsel for the Director of Public Prosecutions invited the House to approach the question from a historical perspective. He started by emphasising the statutory precursors of section 14 of the 1956 Act, and dicta in R v Prince (1875) LR 2 CCR 154; in R v Forde  2 KB 400; and in R v Maughan (1934) 24 Cr App R 130. He said that Parliament, by which he meant the legislators making up the composite body, has consistently taken the view that in respect of age-based sexual offences, of which section 14 is an example, it is not a defence that the accused genuinely thought that the young person was over the prescribed age. This is another way of saying that there is a special rule of construction in respect of such offences under the 1956 Act. If this submission is correct, it follows that an accused's genuine belief that the girl was over 16 cannot be defence under section 14(1).
30. There are a number of interacting answers to this argument. First, as Lord Reid observed in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG  AC 591, 613-15:
The contextual meaning of the enacted text is controlling. It is unhelpful to inquire into the history of subjective views held by individual legislators or even a plurality of legislators from time to time. Secondly, the 1956 Act is an "always speaking statute": R v Ireland  AC 147, 158D-G. It must be interpreted in the world as it exists today, and in the light of the legal system as it exists today: Cross, Statutory Interpretation, 3rd ed (1995), pp 51-52; McCartan Turkington Breen v Times Newspapers Ltd  3 WLR 1670, 1684F-1685C. Specifically, section 14(1) must be so interpreted. Thirdly, as a matter of precedent, it is no longer possible to argue on the basis of Prince's case that there is a special rule of construction in respect of age-based sexual offences in the 1956 Act. That should have been clear from the decision of the House in Sweet v Parsley  AC 132, 148. But in B (A Minor) v Director of Public Prosecutions the House made explicit the rejection of such a special presumption. This made Prince's case a spent force and deprived R v Forde and R v Maughan of any convincing rationale. For these reasons I would reject the historical argument advanced on behalf of the Director of Public Prosecutions.
31. That brings me to the more formidable argument on behalf of the Director of Public Prosecutions based on the language of section 14(1). In B (A Minor) v Director of Public Prosecutions the House held that the 1956 Act is not the product of a legislative initiative designed to devise a more rational system. Except to point out that there is a strong theme running through the provisions of the 1956 Act of protection of young children from sexual depredations, there is little direct assistance to be gained from a review of other sections. It is necessary to concentrate on the language of section 14(1). It reads:
Section 15 makes corresponding provision for indecent assaults on a man. The maximum penalty for offences under sections 14 and 15 is a term of 10 years' imprisonment.
32. It is well established that there is a constitutional principle of general application 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": Sweet v Parsley  AC 132, 148; B (A Minor) v Director of Public Prosecutions  2 AC 428, 470A-472C. The applicability of this presumption is not dependent on finding an ambiguity in the text. It operates to supplement the text. It can only be displaced by specific language, ie an express provision or a necessary implication. In the present case there is no express provision displacing the presumption. The question is whether it is ruled out by a necessary implication. In B (A Minor) v Director of Public Prosecutions Lord Nicholls of Birkenhead stated, at p 464A, that a necessary implication "connotes an implication which is compellingly clear". That is how I will approach the matter.
33. It is now possible to face directly the question whether section 14(1) makes it compellingly clear that the supplementation of the text by the presumption is ruled out. The actual decision of the House in B (A Minor) v Director of Public Prosecutions  2 AC 428 on the meaning of section 1(1) of the Indecency with Children Act 1960 springs to mind. The House concluded that on the statutory provision involved in that case the presumption was not displaced. But the particular wording of section 14(1) gives greater scope for the Crown's argument in the present case. Thus it is noteworthy that subsection (4) of section 14 but not subsection (2), makes specific provision, in the context of consent, for a defence of absence of mens rea. Nevertheless, I would hold that in the present case a compellingly clear implication can only be established if the supplementation of the text by reading in words appropriate to require mens rea results in an internal inconsistency of the text. Approaching the problem in this way, one can readily accept that section 14(2) could naturally have provided that a genuine belief by the accused that the girl was over 16 was no defence. Conversely, section 14(2) could have provided that a genuine belief that the girl was under 16 was a defence. In my view a provision of the latter type would not have been conceptually inconsistent with any part of section 14. By contrast, the terms of sections 5 and 6 of the 1956 Act namely offences of having sexual intercourse with girls under 13 (section 5) and with girls under 16 (section 6) are inconsistent with the application of the presumption. The "young man's defence" under section 6(3) makes clear that it is not available to anybody else. The linked provision in section 5, dealing with intercourse with younger girls, must therefore also impose absolute liability. There is nothing in section 14(1) as clearly indicative of the displacement of the presumption. In these circumstances it cannot in my view be said that there is a compellingly clear implication ruling out the application of the presumption.
34. This is a result which serves the public interest. It would have been a strange result to conclude that Parliament created by section 14(1) offences of strict liability where any heterosexual or homosexual contact takes place between two teenagers of whom one is under 16. Fortunately, the strong presumption of mens rea enabled the House to avoid such a result.
35. For these reasons, as well as the reasons given by Lord Bingham of Cornhill, I would allow the appeal.LORD HOBHOUSE
36. I agree that the appeal should be allowed for the reasons which my noble and learned friend Lord Bingham of Cornhill has given. I wholly agree with his speech and only add some further observations since I consider that the issue raised has effectively been determined by the decision of the Court of Appeal in R v Kimber  1 WLR 1118 and that of your Lordships' House in B v DPP  2 AC 428 .
37. Lord Bingham has provided a valuable review of the regrettable legislative history and the judicial and other comments that have, over the years, been cogently made about this surprising state of affairs. Section 14 of the Sexual Offences Act 1956 enacts a single criminal offence, that of indecently assaulting a woman. Conduct which would otherwise constitute an assault is not an assault if done with the free and lawful consent of the other person. The actus reus is the doing of the indecent act without the consent of the other. The prosecution must prove the absence of consent. In Kimber it had been ruled that it was irrelevant that the defendant honestly believed that in fact the other person was consenting. On this basis, the honest mistake of fact would be no defence; the prosecution would not have to satisfy the jury that the defendant was acting under such a mistake. The Court of Appeal in the passage already quoted by Lord Bingham rejected this proposition. The prosecution must prove mens rea; it must prove the intention of the defendant to assault.
38. Section 14(2) provides a fact-based legal rule which, given the stated factual situation, qualifies the requirement that the indecent act be done without the actual consent of the other person. The additional fact is that the other person is under the age of sixteen years. The result is that the actus reus becomes an indecent act done either without the consent of the other person or with or without the consent of the other person being a person under the age of sixteen years. The prosecution must therefore prove as regards the actus reus either the fact of the absence of consent or the fact of an age of less than sixteen years. It follows from the decision in Kimber that, unless some special legal rule is introduced, the prosecution must, as regards the defendant's mens rea, be prepared to prove that the defendant did not have an honest belief that the other person was in fact consenting and not under sixteen years of age.
39. The argument is that there is such an age-based special rule. This was one of the points which your Lordships' House had to consider in B v DPP. The argument was rejected. Lord Nicholls said at p.463:
Lord Steyn said at p.476:
As a matter of statutory construction, there is, as explained by Lord Bingham, no adequate reason for distinguishing between the provisions relating to the offence of gross indecency and sections 14 and 15 of the 1956 Act. These statements in B v DPP are equally applicable in the present case.
40. I gave had the advantage of reading in draft the speech of my noble and learned friend Lord Bingham of Cornhill, with which I agree. For the reasons he gives I would allow the appeal and answer the certified questions as he proposes.
41. I do so without reluctance but with some misgiving, for I have little doubt that we shall be failing to give effect to the intention of Parliament and will reduce Section 14 of the Sexual Offences Act 1956 to incoherence. The Section creates a single offence of indecent assault. It is intended for the protection of women. Subsection (2) and the first part of subsection (4) extend the scope of the Section. They are intended to protect women who are particularly vulnerable and who by reason of age or mental infirmity may be prevailed upon to give their consent to what would otherwise be an indecent assault. Subsection (3) and the proviso to subsection (4) afford the defendant a limited defence based on the defendant's state of mind.
42. The need for such a defence in the case of a woman with impaired mental faculties is obvious. Her mental state may well not be apparent, and it would be manifestly unjust to deny a defence where the defendant believed that she was normal and had no reason so suspect that she was not. The absence of a similar proviso to subsection (2), while suggesting that no similar defence is intended in the case of under-age girls, does not lead inevitably to that conclusion. But subsection (3) is a different matter. Introduced when the age of marriage was raised to 16, its policy is self-evident. There is no need to extend the scope of the section, designed to protect women from assault and young girls from exploitation, to a girl whom the defendant believes he has married. In such a case the defendant has not taken advantage of her age for his own sexual gratification. On the contrary, he is labouring under the belief that he has undertaken a life-long responsibility towards her.
43. Yet subsection (3) requires the defendant's mistaken belief in the subsistence of a valid marriage to be reasonable as well as honest. To afford a defendant who has not married the girl a more generous defence than one who believes he has is grotesque. It cannot have been the intention of Parliament, either in 1929 when it introduced the subsection (3) defence, or when it consolidated the law in 1956. Parliament must have known that it was a commonplace for men to be convicted of the offence despite their genuine belief that the girl was over 16, a matter which went to mitigation but not defence. Parliament not only viewed this state of affairs with equanimity, but on the earlier occasion at least legislated on a basis which made no sense unless this was the law.