Lawmakers, Law Lords and Legal Fault: Two Tales from the (Thames) River Bank: Sexual Offences Act 2003; R v G and Another
| DOI | 10.1177/0032258X9506800207 |
| Date | 01 April 1995 |
| Author | Mitchell Davies |
| Published date | 01 April 1995 |
| Subject Matter | Article |
Lawmakers, Law
Lords
and
Legal
Fault:
Two
Tales
from
the
(Thames)
River
Bank:
Sexual
Offences
Act 2003; R vGand
Another
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 Gand
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
apurely 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
G is 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
Rv G
and
Another
(hereafter'
G')Iawelcome degree of consistency has in
recent
years issued from
their
Lordships' House,? in
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 mistake? or 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 [20031 UKHL 50, [2003] 4 All ER 765, (2004) 68 JCL 31.
2 DPPvMorgan [1976] AC 182 set
the
modern
tone
of
the
House of Lords,
with
the
Morgan principle having since
been
applied by
their
Lordships in BvDPP[2000] 2
WLR 452
and
RvK[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: DPPvMorgan [1976] AC
182, or
indecent
assault: RvKimber [1983] 1 WLR 1118; or as to
the
victim's age
in
the
context
of age-based sexual offences: Bv
DPP
[2000] 2 WLR 452; RvK
[2001] 3 WLR 471. RvFernandez, The
Times
(26
June
2002), (2002) 66 JCL 475;
as to a belief in
the
need
to resort to self-defence:
Beckford
vR[1988] AC 130, or a
belief in
the
need
to act in
the
prevention
of crime: RvWilliams
(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.
130
Lawmakers,
Law
Lords and Legal
Fault
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."
Accordingly, in
the
context of
both
s. 1 of
the
Indecency
with
Children
Act
1960
5
and
s.
14(2)
of
the
Sexual Offences Act 1956,6
the
House of
Lords has held, respectively in BvDPp7
and
RvK,8
that
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.?
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, interalia,
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
acourageous piece of legislation
...
that
...
provides laws
...
that
are
fit for
the
21st
century'.
In its
expanded
definition of rape,
II
the
creation
of a range of
new
sexual offences including offences of assault by
penetration.'?
causing a
person
to engage in sexual activity
without
4 B vDPP [2000] 2 WLR 452 at 456, per Lord Nicholls.
5Committing 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 BvDPP [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
vR[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 LBCvShah [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.
131
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