B. (A Minor) v DPP

JurisdictionUK Non-devolved
JudgeLORD IRVINE OF LAIRG L.C.,LORD MACKAY OF CLASHFERN,LORD NICHOLLS OF BIRKENHEAD,LORD STEYN
Judgment Date23 February 2000
Judgment citation (vLex)[2000] UKHL J0223-1
Date23 February 2000
CourtHouse of Lords
B

(By his Mother and Next Friend)

(Appellant)
and
Director of Public Prosecutions
(Respondent)

[2000] UKHL J0223-1

Lord Chancellor

Lord Mackay of Clashfern

Lord Nicholls of Birkenhead

Lord Steyn Lord Hutton

HOUSE OF LORDS

LORD IRVINE OF LAIRG L.C.

My Lords,

1

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.

LORD MACKAY OF CLASHFERN

My Lords,

2

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.

3

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.

LORD NICHOLLS OF BIRKENHEAD

My Lords,

4

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.

5

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 [1951] 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 [1953] 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.

6

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.

7

The common law presumption

8

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.

9

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 [1970] 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.'

10

Reasonable belief or honest belief

11

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.'

12

The other judges in that case expressed themselves to a similar effect. In Bank of New South Wales v. Piper [1897] 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.'

13

In Sweet v. Parsley [1970] 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.'

14

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 [1983] 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.'

15

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...

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