Lawmakers, Law Lords and Legal Fault: Two Tales from the (Thames) River Bank: Sexual Offences Act 2003; R v G and Another

AuthorMitchell Davies
Published date01 March 2004
Date01 March 2004
Subject MatterArticle
Lawmakers, Law Lords and
Legal Fault: Two Tales from the
(Thames) River Bank: Sexual
Offences Act 2003; R v G and
Mitchell Davies*
Abstract This article examines the conflicting approaches of Parliament
and the senior courts to the need for mens rea in relation to those offences
which are seriously criminal in character. Prompted by the imminent
enactment of the Sexual Offences Act 2003 and the recent decision of the
House of Lords in Rv G and Another, the conclusion is reached that whilst
the senior courts have become ever more sensitive to the need for true
mens rea to be insisted upon as a precursor to liability for any serious crime,
Parliament, in enacting the Sexual Offences Act 2003, has shown itself, in
this context at least, to have priorities of a very different order. In applying
a purely subjective meaning to the term reckless it is argued however that
their Lordships in Ghave gone too far and have made prosecutions under
the Criminal Damage Act 1971 for unintentionally caused criminal dam-
age potentially unwinnable as well as having thereby perpetuated the
definitional plurality of this much litigated mens rea term. The reader is
accordingly guided to the conclusion that Gis far from being the last word
on the meaning of recklessness in English criminal law.
With the publication of the unanimous decision of the House of Lords in
R v G and Another (hereafter ‘G’)1a welcome degree of consistency has in
recent years issued from their Lordships’ House,2in the identification of
subjective legal fault as being the only acceptable gauge of liability in
relation to any offence which is seriously criminal in character. Thus,
whether the accused’s liability is dependent upon an assessment of his
defence of factual mistake3or lack of foresight of consequences, the
common law gauge of mens rea is necessarily subjective.
* Director of Legal Studies, Cayman Islands Law School. The author is grateful to
Kiron Reid of the Liverpool University Law School and Alan Sprince of the
Cayman Islands Law School for their comments on an earlier draft of this article.
1 [2003] UKHL 50, [2003] 4 All ER 765, (2004) 68 JCL 31.
2DPP v Morgan [1976] AC 182 set the modern tone of the House of Lords, with the
Morgan principle having since been applied by their Lordships in Bv DPP [2000] 2
WLR 452 and Rv K [2001] 3 WLR 471, and by the Privy Council in Beckford vR
[1988] AC 130.
3 As to the victim’s lack of consent in the context of rape: DPP v Morgan [1976] AC
182, or indecent assault: Rv Kimber [1983] 1 WLR 1118; or as to the victim’s age
in the context of age-based sexual offences: B v DPP [2000] 2 WLR 452; Rv K
[2001] 3 WLR 471, Rv Fernandez, The Times (26 June 2002), (2002) 66 JCL 475;
as to a belief in the need to resort to self-defence: Beckford v R[1988] AC 130, or a
belief in the need to act in the prevention of crime: Rv Williams (Gladstone) (1983)
78 Cr App Rep 276. This principle is soon to be statutorily reversed in relation to
all sexual offences by the Sexual Offences Act 2003 (effective May 2004),
discussed in the text below.
In relation to the mistake cases, the House of Lords has on two recent
occasions affirmed its determination to ensure that, insofar as the statu-
tory language permits, age-based sexual offences are dependent upon
proof of genuine culpability. There is compelling logic to the principle
being applied that: ‘When mens rea is ousted by a mistaken belief, it is as
well ousted by an unreasonable belief as by a reasonable belief.’4
Accordingly, in the context of both s. 1 of the Indecency with Children
Act 19605and s. 14(2) of the Sexual Offences Act 1956,6the House of
Lords has held, respectively in Bv DPP7and Rv K,8that convictions for
each offence depend upon the prosecution being able to establish the
absence of a genuinely held belief by the accused that the victim was at
or above the statutorily protected age.9
Sexual Offences Act 2003: re-evaluating the gauge of
mistaken beliefs
It is therefore much to be regretted that such a pattern of judicial
consistency, rarely found in English criminal law, is about to be turned
on its head by the enactment of the Sexual Offences Act 2003,10 which
has an expected commencement date of May 2004. The new Act abol-
ishes, inter alia, the Indecency with Children Act 1960 in its entirety, the
Sexual Offences Act 1956 for all practical purposes and the
homosexuality-specific offences contained in the 1967 Act of the same
name. As a consequence, the legislation marks the most comprehensive
and radical law reform in the area of sexual offences in nearly 50 years
and in many instances lives up to the Home Secretary’s boast that, ‘It is
a courageous piece of legislation . . . that . . . provides laws . . . that are
fit for the 21st century’. In its expanded definition of rape,11 the creation
of a range of new sexual offences including offences of assault by
penetration,12 causing a person to engage in sexual activity without
4Bv DPP [2000] 2 WLR 452 at 456, per Lord Nicholls.
5 Committing or inciting an act of gross indecency with a child under the age of 14.
6 Indecent assault on a [factually consenting] girl under the age of 16.
7 [2000] 2 WLR 452.
8 [2001] 3 WLR 471.
9 The ruling in Bv DPP [2000] 2 WLR 452 was predicated upon the principle (at
459, per Lord Nicholls) that: ‘There is no general agreement strict liability is
necessary to the enforcement of the law protecting children in sexual matters.’
The same reasoning, with regard to matters of immigration law, had laid the
foundations for the opinion of Lord Evershed and the Privy Council in Lim Chin
Aik v R[1963] AC 160 in interpreting s. 6(2) of the Singapore Immigration
Ordinance 1952. In the context of less serious crimes, such as the control of
underage gambling, it has been found necessary to impose strict liability. This
approach is likely to continue: Harrow LBC v Shah [1999] 3 All ER 302.
10 Royal Assent 20 November 2003.
11 Rape includes non-consensual penile penetration of the mouth (Sexual Offences
Act 2003, s. 1) and penile penetration of the victim’s vagina, anus or mouth
where the victim is under the age of 13 (ibid. s. 5).
12 Sexual Offences Act 2003, s. 2, with the separate offence provided for by s. 6 of
assault of a child under the age of 13 by penetration. The need to establish an
absence of consent is a requirement of the s. 2 but not the s. 6 offence. In each
case, the maximum punishment is life imprisonment.
Lawmakers, Law Lords and Legal Fault

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