Mistake of Fact No Defence
| Author | Ruth Harrison |
| DOI | http://doi.org/10.1177/002201839906300613 |
| Published date | 01 December 1999 |
| Date | 01 December 1999 |
| Subject Matter | Article |
The
Journal
of
Criminal
Law
Commission to say in advance
what
it thinks the court will say.
It
has no
further judicial power than to declare its forecast, by granting or refusing
to refer .the case. As it has no further powers, that decision can never
usurp the court's function.
If
the case is referred to the court, the court
proceeds as it would in a case
under
It
ought to be no more embarrassed by a reference by the Commission
than by a
grant
of leave to appeal by the trial judge or
the
single
judge.
Professor
JA
Coutts
Mistake of Fact No Defence
B (A
Minor)
v
Director
of
Public
Prosecutions
[1999] 3 WLR 116
The defendant was charged with inciting a girl
under
the age of 14 years
to commit an act of gross indecency with him contrary to s 1 (1) of the
Indecency with Children Act 1960. The defendant pleaded
not
guilty,
contending that, as he honestly believed that the girl was over
the
age of
14, he had made a mistake of fact for which he should not be liable. The
justices were of the opinion
that
the
offence was one of strict liability
and amistaken belief in the age of the victim was no defence, where-
upon
the defendant changed his plea to guilty and was made the subject
of a supervision order for 18 months. He appealed to
the
Divisional
Court.
HELD,
DISMISSING
TIlE
APPEALr
the justices were correct,
and
there is
no defence founded on mistaken belief or lack of knowledge of the
victim's age on a charge
under
s1of
the
Act of 1960.
COMMENTARY
Rougier Jnoted that there is no specific statutory provision in s 1of the
Indecency with Children Act 1960 for
any
defence based on a genuine
misapprehension of the age of
the
child, which contrasts with the
other
section in the preceding Act,
the
Sexual Offences Act 1956. The
defendant's submission was based on the assertion that there is a basic
principle, namely that agenuine misapprehension or mistaken belief
concerning material facts affords a defence, which should apply to such
provisions, and in support cited a
number
of cases such as
Sweet
v
Parsley
Gammon
(Hong
Kong)
Ltd v
Attorney-General
of
Hong
Kong
Tolson
(1889) 23
'QBD 168 and
Sherras
v
De
Rutzen
[1895] 1QB 918,
but
the
court held
that these could be distinguished for a number of reasons, in particular
that in neither case was a statute being considered wherein the specific
defence which was sought to be advanced had been provided for in
certain sections but pointedly omitted in others.
In
this case, the inclu-
sion of the specific statutory defence in sections of the Sexual Offences
536
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