B. (A Minor) v DPP

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
Judgment Date31 July 1998
Judgment citation (vLex)[1998] EWHC J0731-13
Date31 July 1998
Docket NumberCO/1946/98

[1998] EWHC J0731-13



Royal Courts of Justice

The Strand


Lord Justice Brooke

Mr Justice Rougier

Mr Justice Tucker


The Director of Public Prosecutions

MR P O'CONNOR QC (Instructed by Thomas Cryan & Co., Harrow, Middlesex HA3 7AL) appeared on behalf of the Applicant.

MR A RADCLIFFE [MR B KELLY-JUDGMENT ONLY] (Instructed by Harrow Branch, Middlesex HA1 1YH) appeared on behalf of the Respondent.


Friday, 31st July 1998


At the time of the relevant events the applicant was aged 15. On 19th August 1997 he was sitting next to a 13 year old girl on a bus and requested her to give him what he described as "a shiner". This, in the language of today's gilded youth apparently means, not a black eye, but an act of oral sex. Despite the girl's refusal, he persisted in his request, although without success. As a result, information was laid that he had committed an offence by virtue of section 1(1) of the Indecency with Children Act 1960 in inciting a girl under the age of 14 to commit an act of gross indecency with him. He appeared before the Harrow Youth court on 27th January 1998 when the justices were asked to determine a preliminary point of law advanced on his behalf, namely whether, assuming for the sake of argument that the applicant genuinely believed the girl to be over 14 this would afford him a defence. The justices ruled that the terms of section 1(1) imposed strict liability and a mistaken belief as to the age of the victim could not amount to a defence. The sole question for the consideration of this Court, is whether that decision was correct.


The words of the subsection are as follows:-

"Any person who commits an act of gross indecency with or towards a child under the age of 14, 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."


There follow three other subsections, the first of which has subsequently been repealed, none of which are material. It is to be noted that there is no specific statutory provision for any defence based on a genuine misapprehension as to the age of the child. This will have to be contrasted with other sections in the preceding Act, the Sexual Offences Act 1956.


There is only one further section in the 1960 Act, whose effect is to increase the length of imprisonment for certain offences against young girls, hitherto provided for by the Sexual Offences Act 1956.


The kernel of the applicant's submissions is that what, for ease of reference, I propose to call the basic principle—namely that a genuine misapprehension or mistaken belief concerning material facts affords a defence—should apply to the subsection in question. That basic principle has been well established for many years, and has found expression in a number of cases; in Sweet v Parsley [1970] AC 132 at pp 148 and 149 Lord Reid said:-

"Our first duty is to consider the words of the Act: if they show a clear intention to create an absolute offence that is an end of the matter. But such cases are very rare. Sometimes the words of the section which creates a particular offence make it clear that mens rea is required in one form or another. Such cases are quite frequent. But in a very large number of cases there is no clear indication either way. In such cases 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."


And later:-

"It does not in the least follow that when one is dealing with a truly criminal act it is sufficient merely to have regard to the subject matter of the enactment. One must put oneself in the position of a legislator. It has long been the practice to recognise absolute offences in this class of quasi-criminal acts, and one can safely assume that, when Parliament is passing new legislation dealing with this class of offences, its silence as to mens rea means the old practice is to apply. But when one comes to acts of a truly criminal character, it appears to me that there are at least two other factors which any reasonable legislator would have in mind. In the first place a stigma still attaches to any person convicted of a truly criminal offence, and the more serious or more disgraceful the offence the greater the stigma. So he would have to consider whether, in a case of this gravity, the public interest really requires that an innocent person should be prevented from proving his innocence in order that fewer guilty men may escape."


The other factor concerned the vigilance of the press which in my opinion is of minimal relevance for present purposes. And Lord Diplock, analysing the rationale behind the basic principle, at p 163, having adverted to the well known case of R. v. Tolson [1889] 23 QBD 186 stated that the importance of the decision of the nine judges constituting the majority of the Court was:-

"That it laid down as 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 ….. this implication stems from the principle that it is contrary to a rational and civilised criminal code, such as Parliament must be presumed to have intended, to penalise one who has performed his duty as a citizen to ascertain what acts are prohibited by law and has taken all proper care to inform himself of any facts which would make his conduct lawful.

"Where penal provisions are of general application to the conduct of ordinary citizens in the course of their everyday life the presumption is that the standard of care required of them in informing themselves of facts which would make their conduct unlawful, is that of the familiar common law duty of care. But where the subject matter of a statute is the regulation of a particular activity involving potential danger to public health, safety or morals in which citizens have a choice as to whether they participate or not, the Court may feel driven to infer an intention of Parliament to impose by penal sanctions a higher duty of care on those who choose to participate and to place upon them an obligation to take whatever measures may be necessary to prevent the prohibited act without regard to those considerations of cost or business practicability which play a part in the determination of what would be required of them in the order to fulfil the ordinary common law duty of care. But such an inference is not lightly to be drawn."


The concluding passage of Lord Diplock's opinion was echoed by Lord Scarman, giving the opinion of the Privy Council in the case of Gammon v. A G Hong Kong [1985] 1 AC at p 14 when he said:-

"In their Lordships' opinion the law relevant to this appeal may be stated in the following propositions—

(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 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."


It will be observed that points 2 and 4 may often conflict, and seldom more so than where the protection of children is concerned. 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.


Mr O'Connor referred us to a long series of other cases which, for the most part, I do not think it necessary to repeat, since they are all to the same effect. Two cases, however, must be specially considered, since the applicant places a special reliance upon them because the relevant sections of the statutes under which the prosecutions took place contained, in one a provision for a defence based on an absence of mens rea in specific circumstances, and in the other a distinction in the same section between an offence where the prosecution had to prove knowledge on the part of the defendant, and one where the word "knowingly" was absent, despite which the Courts held that the basic presumption had not been ousted. The first of these was R v Tolson, already referred to. Therein the unfortunate lady was prosecuted for bigamy under the Offences Against the Person Act 1861, section 57 which provided; "Whoever, being married, shall marry any other person during the life of the former husband or wife shall be guilty of felony", but with the added proviso that;...

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