House of Lords.
1 All E.R. 833.
February 23, 2000.
For the reasons given by my noble and learned friend, Lord Nicholls of Birkenhead, in his speech, which I have had the advantage of reading in draft, this appeal should be allowed.
I have had the advantage of reading in draft the speeches prepared by noble and learned friends Lord Nicholls of Birkenhead, Lord Steyn and Lord Hutton.
In the light of the authorities to which they refer I consider that a defendant is entitled to be acquitted of the offence of inciting a child under 14 to commit an act of gross indecency, contrary to section 1(1) of the Indecency with Children Act 1960, if he holds or may hold an honest belief that the child was aged 14 years or over, unless Parliament expressly or by necessary implication provided to the contrary. Clearly this has not been done expressly. For the reasons given by my noble and learned friends I consider that there is no sufficiently detailed legislative policy manifested by the Sexual Offences Act 1956 to which the Act of 1960 is an appendix to provide a basis for the necessary implication in respect of what was in 1960 a new offence. Accordingly this appeal should be allowed.
An indecent assault on a woman is a criminal offence. So is an indecent assault on a man. Neither a boy nor a girl under the age of sixteen can, in law, give any consent which would prevent an act being an assault. These offences have existed for many years. Currently they are to be found in sections 14 and 15 of the Sexual Offences Act 1956. They have their origins in sections 52 and 62 of the Offences against the Person Act 1861.
In the early 1950s a lacuna in this legislation became apparent. A man was charged with indecent assault on a girl aged nine. At the man's invitation the girl had committed an indecent act on the man. The Court of Criminal Appeal held that an invitation to another person to touch the invitor could not amount to an assault on the invitee. As the man had done nothing to the girl which, if done against her will, would have amounted to an assault on her, the man's conduct did not constitute an indecent assault on the girl. That was the case of Fairclough v. Whipp  2 A.E.R. 834. Two years later the same point arose and was similarly decided regarding a girl aged eleven: see Director of Public Prosecutions v. Rogers  1 W.L.R. 1017. Following a report of the Criminal Law Revision Committee in August 1959 (First Report: Indecency with Children (Cmnd. 835)), Parliament enacted the Indecency with Children Act 1960. Section 1(1) of this Act makes it a criminal offence to commit an act of gross indecency with or towards a child under the age of fourteen, or to incite a child under that age to such an act. The question raised by the appeal concerns the mental element in this offence so far as the age ingredient is concerned.
The answer to this question depends upon the proper interpretation of the section. There are, broadly, three possibilities. The first possible answer is that it matters not whether the accused honestly believed that the person with whom he was dealing was over fourteen. So far as the age element is concerned, the offence created by section 1 of the Indecency with Children Act 1960 is one of strict liability. The second possible answer is that a necessary element of this offence is the absence of a belief, held honestly and on reasonable grounds by the accused, that the person with whom he was dealing was over fourteen. The third possibility is that the existence or not of reasonable grounds for an honest belief is irrelevant. The necessary mental element is simply the absence of an honest belief by the accused that the other person was over fourteen.
The common law presumption
As habitually happens with statutory offences, when enacting this offence Parliament defined the prohibited conduct solely in terms of the proscribed physical acts. Section 1(1) says nothing about the mental element. In particular, the section says nothing about what shall be the position if the person who commits or incites the act of gross indecency honestly but mistakenly believed that the child was fourteen or over.
In these circumstances the starting point for a court is the established common law presumption that a mental element, traditionally labelled mens rea, is an essential ingredient unless Parliament has indicated a contrary intention either expressly or by necessary implication. The common law presumes that, unless Parliament indicated otherwise, the appropriate mental element is an unexpressed ingredient of every statutory offence. On this I need do no more than refer to Lord Reid's magisterial statement in the leading case of Sweet v. Parsley  A.C. 132, 148-149:
'. . . 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.'
Reasonable belief or honest belief
The existence of the presumption is beyond dispute, but in one respect the traditional formulation of the presumption calls for re-examination. This respect concerns the position of a defendant who acted under a mistaken view of the facts. In this regard, the presumption is expressed traditionally to the effect that an honest mistake by a defendant does not avail him unless the mistake was made on reasonable grounds. Thus, in The Queen v. Tolson (1889) 23 Q.B.D. 168, 181, Cave J. observed:
'At common law an honest and reasonable belief in the existence of circumstances, which, if true, would make the act for which a prisoner is indicted an innocent act has always been held to be a good defence. This doctrine is embodied in the somewhat uncouth maxim 'actus non facit reum, nisi mens sit rea'. Honest and reasonable mistake stands on the same footing as absence of the reasoning faculty, as in infancy, or perversion of that faculty, as in lunacy. . . . So far as I am aware it has never been suggested that these exceptions do not equally apply in the case of statutory offences unless they are excluded expressly or by necessary implication.'
The other judges in that case expressed themselves to a similar effect. In Bank of New South Wales v. Piper  A.C. 383, 389-390, the Privy Council likewise espoused the 'reasonable belief' approach:
'. . . the absence of mens rea really consists in an honest and reasonable belief entertained by the accused of facts which, if true, would make the act charged against him innocent.'
In Sweet v. Parsley  A.C. 132, 163, Lord Diplock referred to a general principle of construction of statutes creating criminal offences, in similar terms:
'. . . a general principle of construction of any enactment, which creates a criminal offence, [is] 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.'
The 'reasonable belief' school of thought held unchallenged sway for many years. But over the last quarter of a century there have been several important cases where a defence of honest but mistaken belief was raised. In deciding these cases the courts have placed new, or renewed, emphasis on the subjective nature of the mental element in criminal offences. The courts have rejected the reasonable belief approach and preferred the honest belief approach. When mens rea is ousted by a mistaken belief, it is as well ousted by an unreasonable belief as by a reasonable belief. In the pithy phrase of Lawton L.J. in Regina v. Kimber  1 W.L.R. 1118, 1122, it is the defendant's belief, not the grounds on which it is based, which goes to negative the intent. This approach is well encapsulated in a passage in the judgment of Lord Lane C.J. in Regina v. Williams (Gladstone) (1983) 78 Cr.App. R. 276, 281:
'The reasonableness or unreasonableness of the defendant's belief is material to question of whether the belief was held by the defendant at all. If the belief was in fact held, its unreasonableness, so far as guilt or innocence is concerned, is neither here nor there. It is irrelevant. Were it otherwise, the defendant would be convicted because he was negligent in failing to recognise that the victim was not consenting . . . and so on.'
Considered as a matter of principle, the honest belief approach must be preferable. By definition the mental element in a crime is concerned with a subjective state of mind, such as intent or belief. To the extent that an overriding objective limit ('on reasonable grounds') is introduced, the subjective element is displaced. To that extent a person who lacks the necessary intent or belief may nevertheless commit the offence. When that occurs the defendant's 'fault' lies exclusively in falling short of an objective standard. His crime lies in his negligence. A statute may so provide expressly or by necessary implication. But this can have no place in a common law principle, of general application, which is concerned with the need for a mental element as an essential ingredient of a criminal offence.
The traditional formulation of the common law presumption, exemplified in Lord Diplock's famous exposition in Sweet v. Parsley, cited above, is out of step with this recent line of authority, in so far as it envisages that a mistaken belief must be based on reasonable grounds. This seems to be a relic from the days before a defendant in a criminal case could give evidence in his own defence. It is not surprising that in those times juries judged a defendant's state of mind by the conduct to be expected of a reasonable person.
I turn to the recent authorities. The decision which heralded this development in criminal law was the decision of your Lordships' House in Director of Public Prosecutions v. Morgan  A.C. 182. This was a case of rape. By a bare majority the House held that where a defendant had sexual intercourse with a woman without her consent but believing she did consent, he was not guilty of rape even though he had no reasonable grounds for his belief. The intent to commit rape involves an intention to have intercourse without the woman's consent or with a reckless indifference to whether she consents or not. It would be inconsistent with this definition if an honest belief that she did consent led to an acquittal only when it was based on reasonable grounds. One of the minority, Lord Edmund-Davies, would have taken a different view had he felt free to do so. In Regina v. Kimber  1 W.L.R. 1118, a case of indecent assault, the Court of Appeal applied the approach of the majority in Morgan's case. The guilty state of mind was the intent to use personal violence to a woman without her consent. If the defendant did not so intend, he was entitled to be found not guilty. If he did not so intend because he believed she was consenting, the prosecution will have failed to prove the charge, irrespective of the grounds for the defendant's belief. The court disapproved of the suggestion made in the earlier case of Regina v. Phekoo  1 W.L.R. 1117, 1127, that this House intended to confine the views expressed in Morgan's case to cases of rape.
This reasoning was taken a step further in Reg. v. Williams (Gladstone) (1983) 78 Cr. App. R. 276. There the Court of Appeal, presided over by Lord Lane C.J., adopted the same approach in a case of assault occasioning actual bodily harm. The context was a defence that the defendant believed that the person whom he assaulted was unlawfully assaulting a third party. In Beckford v. The Queen  A.C. 130 a similar issue came before the Privy Council on an appeal from Jamaica in a case involving a defence of self-defence to a charge of murder. The Privy Council applied the decisions in Morgan's case and Williams' case. Lord Griffiths said, at page 144:
'If then a genuine belief, albeit without reasonable grounds, is a defence to rape because it negatives the necessary intention, so also must a genuine belief in facts which if true would justify self-defence be a defence to a crime of personal violence because the belief negatives the intent to act unlawfully.'
Lord Griffiths also observed, at a practical level, that where there are no reasonable grounds to hold a belief it will surely only be in exceptional circumstances that a jury will conclude that such a belief was or might have been held. Finally in this summary, in Blackburn v. Bowering  1 W.L.R. 1324, the Court of Appeal, presided over by Sir Thomas Bingham M.R., applied the same approach to the exercise by the court of its contempt jurisdiction in respect of an alleged assault on officers of the court while in the execution of their duty.
The Crown advanced no suggestion to your Lordships that any of these recent cases was wrongly decided. This is not surprising, because the reasoning in these cases is compelling. Thus, the traditional formulation of the common law presumption must now be modified appropriately. Otherwise the formulation would not be an accurate reflection of the current state of the criminal law regarding mistakes of fact. Lord Diplock's dictum in Sweet v. Parsley  A.C. 132, 163, must in future be read as though the reference to reasonable grounds were omitted.
I add one further general observation. In principle, an age-related ingredient of a statutory offence stands on no different footing from any other ingredient. If a man genuinely believes that the girl with whom he is committing a grossly indecent act is over fourteen, he is not intending to commit such an act with a girl under fourteen. Whether such an intention is an essential ingredient of the offence depends upon a proper construction of section 1 of the 1960 Act. I turn next to that question.
The construction of section 1 of the Indecency with Children Act 1960
In section 1(1) of the Indecency with Children Act 1960 Parliament has not expressly negatived the need for a mental element in respect of the age element of the offence. The question, therefore, is whether, although not expressly negatived, the need for a mental element is negatived by necessary implication. 'Necessary implication' connotes an implication which is compellingly clear. Such an implication may be found in the language used, the nature of the offence, the mischief sought to be prevented and any other circumstances which may assist in determining what intention is properly to be attributed to Parliament when creating the offence.
I venture to think that, leaving aside the statutory context of section 1, there is no great difficulty in this case. The section created an entirely new criminal offence, in simple unadorned language. The offence so created is a serious offence. The more serious the offence, the greater is the weight to be attached to the presumption, because the more severe is the punishment and the graver the stigma which accompany a conviction. Under section 1 conviction originally attracted a punishment of up to two years' imprisonment. This has since been increased to a maximum of ten years' imprisonment. The notification requirements under Part I of the Sex Offenders Act 1997 now apply, no matter what the age of the offender: see Schedule 1, paragraph 1(1)(b). Further, in addition to being a serious offence, the offence is drawn broadly ('an act of gross indecency'). It can embrace conduct ranging from predatory approaches by a much older paedophile to consensual sexual experimentation between precocious teenagers of whom the offender may be the younger of the two. The conduct may be depraved by any acceptable standard, or it may be relatively innocuous behaviour in private between two young people. These factors reinforce, rather than negative, the application of the presumption in this case.
The purpose of the section is, of course, to protect children. An age ingredient was therefore an essential ingredient of the offence. This factor in itself does not assist greatly. Without more, this does not lead to the conclusion that liability was intended to be strict so far as the age element is concerned, so that the offence is committed irrespective of the alleged offender's belief about the age of the 'victim' and irrespective of how the offender came to hold this belief.
Nor can I attach much weight to a fear that it may be difficult sometimes for the prosecution to prove that the defendant knew the child was under fourteen or was recklessly indifferent about the child's age. A well known passage from a judgment of that great jurist, Sir Owen Dixon, in Thomas v. The King (1937) 59 C.L.R. 279, 309, bears repetition:
'The truth appears to be that a reluctance on the part of courts has repeatedly appeared to allow a prisoner to avail himself of a defence depending simply on his own state of knowledge and belief. The reluctance is due in great measure, if not entirely, to a mistrust of the tribunal of fact - the jury. Through a feeling that, if the law allows such a defence to be submitted to the jury, prisoners may too readily escape by deposing to conditions of mind and describing sources of information, matters upon which their evidence cannot be adequately tested and contradicted, judges have been misled into a failure steadily to adhere to principle. It is not difficult to understand such tendencies, but a lack of confidence in the ability of a tribunal correctly to estimate evidence of states of mind and the like can never be sufficient ground for excluding from inquiry the most fundamental element in a rational and humane criminal code.'
Similarly, it is far from clear that strict liability regarding the age ingredient of the offence would further the purpose of section 1 more effectively than would be the case if a mental element were read into this ingredient. There is no general agreement that strict liability is necessary to the enforcement of the law protecting children in sexual matters. For instance, the draft criminal code bill prepared by the Law Commission in 1989 proposed a compromise solution. Clauses 114 and 115 of the bill provided for committing or inciting acts of gross indecency with children aged under thirteen or under sixteen. Belief that the child is over sixteen would be a defence in each case: see the Law Commission, Criminal Law, A Criminal Code for England and Wales, vol 1, Report and draft Criminal Code Bill, p. 81 (Law Com. No. 177).
Is there here a compellingly clear implication that Parliament should be taken to have intended that the ordinary common law requirement of a mental element should be excluded in respect of the age ingredient of this new offence? Thus far, having regard especially to the breadth of the offence and the gravity of the stigma and penal consequences which a conviction brings, I see no sufficient ground for so concluding.
Indeed, the Crown's argument before your Lordships did not place much reliance on any of the matters just mentioned. The thrust of the Crown's argument lay in a different direction: the statutory context. This is understandable, because the statutory background is undoubtedly the Crown's strongest point. The Crown submitted that the law in this field has been regarded as settled for well over one hundred years, ever since the decision in Reg v. Prince (1875) L.R. 2 C.C.R. 154. That well known case concerned the unlawful abduction of a girl under the age of sixteen. The defendant honestly believed she was over sixteen, and he had reasonable grounds for believing this. No fewer than fifteen judges held that this provided no defence. Subsequently, in R. v. Maughan (1934) 24 Cr.App.R. 130 the Court of Criminal Appeal (Lord Hewart C.J., Avory and Roche JJ.) held that a reasonable and honest belief that a girl was over sixteen could never be a defence to a charge of indecent assault. The court held that this point had been decided in Rex v. Forde (1923) 17 Cr.App.R. 99. The court also observed that in any event the answer was to be found in Prince's case. Building on this foundation Mr. Scrivener Q.C. submitted that the Sexual Offences Act 1956 was not intended to change this established law, and that section 1 of the Indecency with Children Act 1960 was to be read with the 1956 Act. The preamble to the 1960 Act stated that its purpose was to make 'further' provision for the punishment of indecent conduct towards young people. In this field, where Parliament intended belief as to age to be a defence, this was stated expressly: see, for instance, the 'young man's defence' in section 6(3) of the 1956 Act.
This is a formidable argument, but I cannot accept it. I leave on one side Mr. O'Connor Q.C.'s sustained criticisms of the reasoning in Prince's case and Maughan's case. Where the Crown's argument breaks down is that the motley collection of offences, of diverse origins, gathered into the Sexual Offences Act 1956 displays no satisfactorily clear or coherent pattern. If the interpretation of section 1 of the Act of 1960 is to be gleaned from the contents of another statute, that other statute must give compelling guidance. The Act of 1956 as a whole falls short of this standard. So do the two sections, sections 14 and 15, which were the genesis of section 1 of the Act of 1960.
Accordingly, I cannot find, either in the statutory context or otherwise, any indication of sufficient cogency to displace the application of the common law presumption. In my view the necessary mental element regarding the age ingredient in section 1 of the Act of 1960 is the absence of a genuine belief by the accused that the victim was fourteen years of age or above. The burden of proof of this rests upon the prosecution in the usual way. If Parliament considers that the position should be otherwise regarding this serious social problem, Parliament must itself confront the difficulties and express its will in clear terms. I would allow this appeal.
I add a final observation. As just mentioned, in reaching my conclusion I have left on one side the criticisms made of Prince's case and Maughan's case. Those cases concerned different offences and different statutory provisions. The correctness of the decisions in those cases does not call for decision on the present appeal. But, without expressing a view on the correctness of the actual decisions in those cases, I must observe that some of the reasoning in Prince's case is at variance with the common law presumption regarding mens rea as discussed above. To that extent, the reasoning must be regarded as unsound. For instance, Bramwell B. (at p. 174) seems to have regarded the common law presumption as ousted because the act forbidden was 'wrong in itself'. Denman J. (at p. 178) appears to have considered it was 'reasonably clear' that the Act of 1861 was an Act of strict liability so far as the age element was concerned. On its face this is a lesser standard than necessary implication. And in the majority judgment, Blackburn J. reached his conclusion by inference from the intention Parliament must have had when enacting two other, ineptly drawn, sections of the Act. But clumsy parliamentary drafting is an insecure basis for finding a necessary implication elsewhere, even in the same statute. Prince's case, and later decisions based on it, must now be read in the light of this decision of your Lordships' House on the nature and weight of the common law presumption.
The first certified question is whether a defendant is entitled to be acquitted of the offence of inciting a child under 14 to commit an act of gross indecency, contrary to section 1(1) of the Indecency with Children Act 1960, if he holds or may hold an honest belief that the child was 14 years or over. In other words, the question of statutory interpretation before the House is whether mens rea is an ingredient of the offence or whether the subsection creates an offence of strict liability.
The charge and proceedings below
On 19 August 1997 a girl aged 13 years was a passenger on a bus in Harrow. The appellant, who was aged 15 years, sat next to her. The appellant asked the girl several times to perform oral sex with him. She repeatedly refused. The appellant was charged with inciting a girl under 14 to commit an act of gross indecency contrary to section 1(1) of the Indecency with Children Act 1960. In January 1998 the appellant stood trial at the Harrow Youth Court. Initially, the appellant pleaded not guilty. The primary facts, as well as the fact that the appellant honestly believed that the girl was over 14 years, were admitted. The defence argued that on the admitted facts the appellant was entitled to be acquitted. The prosecution submitted that the offence was one of strict liability. The justices were asked to rule whether the appellant's state of mind could constitute a defence to the charge. They ruled that it could not. As a result of this ruling the appellant changed his plea to guilty. In law his plea of guilty constituted a conviction. The justices imposed a supervision order on the appellant for 18 months.
The justices were asked to state a case, and they did so. The case stated set out the primary facts. The admitted facts did not cover the question whether the appellant had reasonable grounds for his belief. And there was no finding on this point. The case stated raised the question of law of the correct interpretation of section 1(1) of the Act of 1960. The appellant appealed by way of case stated to the Divisional Court. In three separate judgments the Divisional Court (Brooke L.J., Tucker and Rougier J.J.) affirmed the ruling of the justices and dismissed the appeal; R. v. B (A Minor) v. Director of Public Prosecutions  3 W.L.R. 116.
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  2 All E.R. 834 and Director of Public Prosecutions v. Rogers  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.
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.'