DPP v Morgan, ; DPP v McDonald, ; DPP v McLarty, ; DPP v Parker,
| Jurisdiction | England & Wales |
| Judge | Lord Cross of Chelsea,Lord Hailsham of St. Marylebone,Lord Simon of Glaisdale,Lord Edmund-Davies,Lord Fraser of Tullybelton |
| Judgment Date | 30 April 1975 |
| Judgment citation (vLex) | [1975] UKHL J0430-1 |
| Date | 30 April 1975 |
| Court | House of Lords |
[1975] UKHL J0430-1
House of Lords
Lord Cross of Chelsea
Lord Hailsham of St. Marylebone
Lord Simon of Glaisdale
Lord Edmund-Davies
Lord Fraser of Tullybelton
Upon Report from the Appellate Committee, to whom was referred the Cause Director of Public Prosecutions (Respondent) against William Anthony Morgan (Appellant), Director of Public Prosecutions (Respondent) against Robert Alan Michael McDonald (Appellant), Director of Public Prosecutions (Respondent) against Robert McLarty (Appellant), and Director of Public Prosecutions (Respondent) against Michael Andrew Parker (Appellant) [Consolidated Appeals] (on Appeal from the Court of Appeal (Criminal Division)), That the Committee had heard Counsel, as well on Tuesday the 28th, as on Wednesday the 29th, and Thursday the 30th days of January last, as on Monday the 3d, and Tuesday the 4th, days of February last, upon the Petition and Appeal of William Anthony Morgan praying, That the matter of the Order set forth in the Schedules thereto, namely, an Order of Her Majesty's Court of Appeal (Criminal Division) of the 14th of October 1974, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament, might seem meet; as also upon the Petition and Appeal of Robert Alan Michael McDonald praying, That the matter of the Order set forth in the Schedules thereto, namely, an Order of Her Majesty's Court of Appeal (Criminal Division) of the 14th of October 1974, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament, might seem meet; as also upon the Petition and Appeal of Robert McLarty praying, That the matter of the Order set forth in the Schedules thereto, namely, an Order of Her Majesty's Court of Appeal (Criminal Division) of the 14th of October 1974, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament, might seem meet; and also upon the Petition and Appeal of Michael Andrew Parker praying, That the matter of the Order set forth in the Schedules thereto, namely, an Order of Her Majesty's Court of Appeal (Criminal Division) of the 14th of October 1974, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament, might seem meet; (which said Appeals were, by an Order of this House of the 21st day of January 1975, ordered to be consolidated); and Counsel having been heard on behalf of the Director of Public Prosecutions, the Respondent to the said Appeals; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Orders of Her Majesty's Court of Appeal (Criminal Division), of the 14th day of October 1974, complained of in the said Appeals, be, and the same are hereby, Affirmed, and that the said Petitions and Appeals be, and the same are hereby, dismissed this House.
My Lords,
The facts of this case are set out in the speeches of my noble and learned friends, Lord Hailsham of St. Marylebone and Lord Edmund-Davies. The question of law which is raised by the appeal is whether the judge was right in telling the jury that, if they came to the conclusion that Mrs. Morgan had not consented to the intercourse in question but that the defendants believed or may have believed that she was consenting to it, they must nevertheless find the defendants guilty of rape if they were satisfied that they had no reasonable grounds for so believing. If the direction given by the judge was wrong in law, the further question arises whether the case is one in which the conviction should stand notwithstanding the misdirection by virtue of the proviso to section 2(1) of the Criminal Appeal Act 1968. The Sexual Offences Act 1956 which provides by section 1(1) that it is an offence "for a man to rape a woman" contains no definition of the word "rape". No one suggests that rape is an "absolute" offence to the commission of which the state of mind of the defendant with regard to the woman's consent is wholly irrelevant. The point in dispute is as to the quality of belief which entitles the defendant to be acquitted and as to the "evidential" burden of proof with regard to it.
The submissions of counsel for the appellants can be summarised as follows: —
"When it is said—as it was for example by Stephen J. in R. v. Tolson 23 Q.B.D. 168 at 185—that the mental element in rape is an intention to have intercourse without the woman's consent that means not simply an intention to have intercourse with a woman who is not in fact consenting to it but an intention to have non-consensual intercourse, not, of course, in the sense that it must be shown that the defendant would have been unwilling to have had intercourse with the woman if he had thought that she was consenting to it, but in the sense that he was either aware that she was not consenting or did not care whether or not she consented. That does not mean that the Crown is obliged to adduce positive evidence as to the defendant's state of mind. If it adduces evidence to show that intercourse took place and that the woman did not consent to it then in the absence of any evidence from the defendant the jury will certainly draw the inference that he was aware that she was not consenting. So as a practical matter he is bound—if he wishes to raise the point—to give evidence to the effect that he believed that she was consenting and as to his reasons for that belief; and the weaker those reasons are the more likely the jury is to conclude that he had no such belief. But the issue as to the accused's belief in the woman's consent is before the jury from the beginning, and is an issue in respect of which the evidential burden is on the Crown from first to last. There is never any question of any evidential burden with regard to it being on the accused or of the judge withdrawing it from the jury."
The submissions of counsel for the Director can be summarised as follows: —
"When it is said that the" mens rea" in rape means an intention to have intercourse without consent that means no more than that the intercourse must be intentional. Rape is in fact analogous to bigamy where the offence is defined as going through a ceremony of marriage when you are in fact married to someone else. But though the Crown discharges the evidential burden which is on it when it adduces, in a case of rape, evidence of intercourse and lack of consent, or, in a case of bigamy, evidence of marriage during the subsistence of an earlier marriage, R. v. Tolson shows that it is open to the defendant on general principles of criminal liability, not in any way confined to rape or bigamy, to raise the defence that he had reasonable grounds for believing that the woman was consenting or that his earlier marriage was no longer subsisting, as the case may be. If he raises such a defence then since the evidential burden of establishing it is on him the judge must rule whether the evidence of belief on reasonable grounds is sufficient to justify the defence being put to the jury. If he rules that it is then the onus is on the Crown to satisfy the jury that the defendant in fact either had no such belief or had no reasonable grounds for entertaining it."
Before I turn to consider which of these rival contentions is to be preferred there are three matters to which I would refer. The first relates to the judgment of the Court of Appeal. I am not, I believe, alone among your Lordships in finding that judgment hard to follow. I have no doubt that the Court rejected the submissions of the appellants but whether they accepted the contention advanced by the respondent that rape consists simply in intentionally having intercourse with a woman who does not in fact consent, or whether they were putting forward some other definition of the offence, and, if so, what that other definition was, I really do not know.
Secondly, I would say something as to how far—if at all—the decision in R. v. Tolson, which was, of course, a case of bigamy, has a bearing on this case. The statute there provided that "who ever being married shall marry any other person during the life of the former husband or wife shall be guilty of felony" with a proviso that:—
"nothing in this section contained shall extend to any person marrying a second time whose husband or wife shall have been continually absent from such person for the space of seven years then last past, and shall not have been known by such person to be living within that time."
The defendant who was found by the jury to have had reasonable grounds for believing that her husband was then dead—though in fact he was not— went through a ceremony of marriage with another man within seven years of the time when she last knew of his being alive. She therefore fell within the very words of the statute....
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