R v Brown (Northern Ireland)

Heard on 7 March 2013

Lord Kerr (with whom Lord Neuberger, Lady Hale, Lord WilsonandLord Reedagree)

On 6 August 2003 a young man of 17 and a young girl of 13 had sexual intercourse. Afterwards the young girl told her mother that this had occurred but she suggested that she had not been a willing participant. Understandably, her mother went to the police and the young man was arrested. Later her daughter retracted her account of not having consented to sexual relations. The young man was therefore charged with a less serious offence than that which he might have faced. It was, nonetheless, a serious charge. He was charged with having had unlawful carnal knowledge of a girl under the age of 14 years contrary to section 4 of the Criminal Law Amendment Acts (Northern Ireland) 1885–1923.

The young man pleaded guilty to that charge at Belfast Crown Court on 22 June 2004. That plea had been entered on the basis that the offence created by section 4 was one in which reasonable belief that the girl was over the age of 14 was not available to him as a defence. The defendant was sentenced to three years' detention in a Young Offenders' Centre. The sentence was suspended for two years. Later, having received different legal advice from that which had prompted his plea of guilty, the young man applied to the Court of Appeal in Northern Ireland for leave to appeal against his conviction. The issue before the Court of Appeal was whether section 4 of the 1885 Act created an offence in which proof that the defendant did not honestly believe that the girl was over the age of 14 was not required. That is also the issue with which this court has had to deal.

Traditionally, sexual offences (other than forced intercourse) against girls and young women have been dealt with in legislation according to age bands, with, in general, more grave offences reserved for and heavier penalties imposed for crimes involving younger females. A clearly discernible historical trend of increasing the age of the victim at which liability for more serious offences is incurred, while reducing the sentence to be imposed, can be detected. Thus, section 20 of the Offences against the Person (Ireland) Act 1829 provided that any person who had unlawful carnal knowledge of a girl under the age of ten years was guilty of a felony, punishable by death. By contrast, the same section provided that unlawful carnal knowledge of a girl between ten and 12 years was a misdemeanour punishable by a term of imprisonment at the discretion of the court.

Section 50 of the Offences against the Person Act 1861 reduced the sentence to be imposed for the felony of unlawful carnal knowledge of a girl under the age of ten to, at the discretion of the court, penal servitude for life or for a term of not less than three years or imprisonment for a term not exceeding two years with or without hard labour. For unlawful carnal knowledge of a girl between the ages of ten and 12, a defendant was guilty of a misdemeanour under section 51 of the same Act and liable to be sentenced to penal servitude for three years or to be imprisoned for up to two years with or without hard labour. Section 3 of the Offences against the Person Act 1875 made it a felony to "unlawfully and carnally know and abuse" any girl under the age of 12 years.

Section 4(3) of the Criminal Law Amendment Act (Northern Ireland) 1923 provided that the Criminal Law Amendment Acts (Northern Ireland) 1885–1912 and the Criminal Law Amendment Act (Northern Ireland) 1923 should, to the extent to which they applied to Northern Ireland, be cited together as the Criminal Law Amendment Acts (Northern Ireland) 1885–1923.

Section 2 of the 1885–1923 Acts provided for a procuration offence:

"Any person who-…procures or attempts to procure any girl or woman under 21 years of age…to have unlawful carnal connexion, either within or without the Queen's dominions, with any other person or persons…shall be guilty of a misdemeanour…"

Section 4, as amended, and in so far as is relevant to the present appeal, provided that "Any person who unlawfully and carnally knows any girl under the age of 14 years shall be guilty of felony, and being convicted thereof shall be liable to be imprisoned for life or to be fined or both". (As originally enacted, section 4 had stipulated an age of 13 years. This was increased to 14 by the Children and Young Persons Act (Northern Ireland) 1950).

As also originally enacted, section 5 of the 1885 Act provided for an offence of unlawful carnal knowledge of a girl between 13 and 15. The age limit was increased by section 13 of the 1950 Act so that in its amended form it provided as follows:

"Any person who…unlawfully and carnally knows or attempts to have unlawful carnal knowledge of any girl under the age of 17 years; shall be guilty of a misdemeanor…"

Section 6, as amended by section 13 of the 1950 Act, provided for an offence of permitting defilement on premises:

"Any person who, being the owner or occupier of any premises, or having, or acting or assisting in, the management or control thereof -induces or knowingly suffers any girl…to resort to or be in or upon such premises for the purpose of being unlawfully and carnally known by any man, whether such carnal knowledge is intended to be with any particular man or generally, shall…if such girl is under the age of 17 years be guilty of a misdemeanour…"

Section 7 provided for an offence of abduction:

"Any person who —with intent that any unmarried girl under the age of 18 years should be unlawfully and carnally known by any man, whether such carnal knowledge is intended to be with any particular man, or generally —takes or causes to be taken such girl out of the possession and against the will of her father or mother, or any other person having the lawful care or charge of her, shall be guilty of a misdemeanour, and being convicted thereof shall be liable at the discretion of the court to be imprisoned for any term not exceeding two years or to be fined or both.

Provided that it shall be a sufficient defence to any charge under this section if it shall be made to appear to the court or jury that the person so charged had reasonable cause to believe that the girl was of or above the age of 18 years."

Provisos of a similar nature to that contained in the latter part of section 7 were included in sections 5 and 6 of the 1885 Act as originally enacted. These were removed by section 2 of the 1923 Act, as amended by section 13 of the 1950 Act:

"Reasonable cause to believe that a girl was of or above the age of 17 years shall not be a defence to a charge under sub-section (1) of section five or under section six of the Criminal Law Amendment Act 1885…"

In August 2003, therefore, the Criminal Law Amendment Acts (Northern Ireland) 1885–1923 included five offences in which age was an essential component of the actus reus, of which two (sections 2 and 4) were silent as to the effect, if any, of reasonable belief as to the age of the girl; two (sections 5 and 6) were subject to an express exclusion of a defence of reasonable belief as to age; and one (section 7) was subject to a defence of reasonable belief as to age.

Thus, from 1885 until 1923, unlawful carnal knowledge of a girl of 13 years or more was not an offence under section 4. During the same period such an offence was committed under section 5 of the 1885 Act if the girl was between the ages of 13 and 15 but a defence of reasonable belief that the girl was 16 years or more was available. From 1923 until 1950 unlawful carnal knowledge of a girl of 13 or more continued not to be an offence under section 4. During that time, however, unlawful carnal knowledge of a girl between 13 and 15 years did not require proof under section 5 that the defendant did not believe that the girl was over the age of 16. From 1950 onwards sexual intercourse with a girl under the age of 14 became an offence under section 4.

The appellant argued that the approach to the interpretation of section 4 of the 1885–1923 Acts must be informed by a fundamental common law principle. This was that there should be a mental element, commonly referred to as mens rea, for criminal liability unless a clear intention was evinced by the words of a statute that a particular criminal offence should be one of strict liability. The presumption that mens rea was required could only be displaced, it was suggested, where it could be shown that this was the unmistakable intention of Parliament. Such an intention was less readily found to exist where the offence was a serious one. In this regard, reliance was placed on the judgment in R v Muhamad [2003] QB 1031 where, at para 19, Dyson LJ said:

"The offences where no mental element is specified, for the most part, attract considerably lower maximum sentences than those where a mental element is specified."

Since section 4 was silent on the question of whether proof of mens rea was required, the appellant submitted that the offence specified in the provision could only be regarded as not requiring such proof if that had to be unavoidably and necessarily implied. The suggestion that a particular provision imposed strict liability had to be considered, the appellant argued, in its statutory and social contexts. The Criminal Law Amendment Acts (Northern Ireland) 1885–1923 fell to be interpreted as they...