House of Lords
| DOI | 10.1177/002201835802200406 |
| Published date | 01 October 1958 |
| Date | 01 October 1958 |
| Subject Matter | Article |
House of Lords
BURDEN OF PROOF: OFFENCE AGAINST MENTAL DEFECTIVE
Director
of
Public Prosecutions v.
Head
THE House of Lords has now upheld (1958, 2W.L.R. 617)
in this case
the
decision of the Court of Criminal Appeal
allowing an appeal against conviction on a charge of having
carnal knowledge of a mental defective, contrary to s. 56 (1)
(a) of
the
Mental Deficiency Act, 1913. Viscount Simonds
dissented from
the
opinion of
the
majority, namely,
Lords
Reid, Tucker, Somervell of Harrow and Denning.
At
the
time of the alleged offence the woman concerned
was on licence from an institution for defectives to which she
had
been sent as a
"moral
defective", pursuant to an order
made by
the
Secretary of State in July, 1947, in purported
exercise of powers under the Act.
This
order was produced in
evidence by the prosecution, as were also subsequent orders
transferring
her
to other institutions
and
finally to the one
from which she had been released on licence. At
the
trial
the
prosecution also produced the two medical certificates which
were before
the
Secretary of State when he made
the
order
and
on which he had to be satisfied that she was a defective,
but
neither certificate contained any evidence on which it
could be said
that
she was a
"moral
defective" within s. 1 (1)
(d) of
the
Act.
The
prosecution conceded
that
the
order of
1947 was defective and that on an application for a writ of
habeas corpus it could be successfully challenged
but
submitted
that
the arguments which found favour in
the
court below
would tend to result in a trial within a trial of issues more
suitable to proceedings by way of habeas corpus or certiorari
or in actions for false imprisonment,
and
that
the
necessity
for strict proof of documents made or facts having taken place
many years ago would in some cases render prosecutions
impossible. Lords Reid,
Tucker
and Somervell of Harrow
were not impressed by these difficulties.
301
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