R v Courtie
| Jurisdiction | UK Non-devolved |
| Judge | Lord Diplock,Lord Fraser of Tullybelton,Lord Scarman,Lord Roskill,Lord Bridge of Harwich |
| Judgment Date | 01 March 1984 |
| Judgment citation (vLex) | [1984] UKHL J0301-2 |
| Date | 01 March 1984 |
| Court | House of Lords |
[1984] UKHL J0301-2
Lord Diplock
Lord Fraser of Tullybelton
Lord Scarman
Lord Roskill
Lord Bridge of Harwich
House of Lords
My Lords,
This case comes before your Lordships in the guise of an appeal against sentence only. This is a subject-matter which seldom involves a certifiable question of law of general importance such as would qualify it for the grant of leave to appeal to the House of Lords. I cannot, myself, recall any criminal appeal confined to sentence only having come before this House since I started to sit here in 1968, although shortly before that a solitary example had been provided in Verrier v. D.P.P. [1967] 2 A.C. 195. In truth, however, the instant appeal raises two questions involving basic principles of English criminal law, one substantive, the other procedural.
The substantive principle is that to which in Woolmington v. D.P.P. [1935] A.C. 462, in a speech which bears indicia of collaborative authorship, Lord Sankey L.C. applied the metaphor of "the one golden thread that is always to be seen throughout the web of English criminal law." The principle so referred to is: that an accused person cannot be convicted of any offence with which he is charged unless it has been established by the prosecution that each one of the factual ingredients, which are included in the legal definition of that specific offence was present in the case that has been brought against him by the prosecution.
One way in which the prosecution may establish that all the factual ingredients of the specific offence with which the accused person is charged did exist, is by the accused, on his arraignment, entering an informed and unequivocal plea of guilty to the charge set out in an indictment which complies with section 3 of the Indictments Act 1915, in that it contains a statement of the specific offence with which the accused is charged together with such particulars as may be necessary for giving reasonable information as to the nature of the charge.
In the absence of such an informed and unequivocal plea of guilty by the accused, the prosecution, if it is to obtain the accused's conviction for the specific offence charged, must prove to the satisfaction (beyond reasonable doubt) of the person or persons in whom is vested the function of trying facts, that each and every factual ingredient of that offence existed in the case of the accused. The factual ingredients of every criminal offence, whether it be statutory or an offence at common law, consist of the conduct of the accused and his state of mind at the time of that conduct. Heedful of the recent admonition contained in my speech in Reg. v. Miller [1983] 2 A.C. 161, 174, with which the other members of the Appellate Committee concurred, I use the expressions conduct and state of mind in preference to speaking of actus reus and mens rea.
It marks no snapping of Lord Sankey's golden thread that section 6 of the Criminal Law Act 1967 should permit the accused (either upon a plea or upon a verdict of guilty) to be convicted of a lesser offence than the specific offence charged, if the allegations in the indictment contained in the charge of the specific offence amount to or include all the factual ingredients of the lesser offence. This is not substantive English criminal law; it is procedural only. It deals with the form of indictments and how charges of specific offences contained in them may be framed and, if so framed, are to be understood.
It is a procedural principle of a different order that is raised in the instant appeal. It is one that is basic to English criminal law, viz.: that, if there has not been an informed and unequivocal plea of guilty, the question whether any particular factual ingredient of the specific offence charged (or of any lesser offence of which he might be convicted on that indictment) was present in the case against an accused person, falls to be determined by those persons, and by those persons alone, in whom, under English criminal procedure, there is vested the function of finding whether or not the factual ingredients necessary to constitute the offence have been proved to their satisfaction. Who those persons are in any particular case depends upon the mode of trial, i.e. summarily or an indictment; but in the instant case your Lordships are concerned only with a prosecution on indictment, and where such is the mode of trial, those persons are the jury. An accused person who has been arraigned upon indictment, is entitled to avail himself of the chance of obtaining from a jury a verdict of "not guilty" of the specific offence with which he has been charged and of any lesser offence, if there be one, of which he might lawfully be convicted on that indictment, if the jury regards itself as being left in reasonable doubt as to whether the existence of any single one of the factual ingredients of the specific offence charged or of the lesser offence, has been proved to their satisfaction. Such is an accused person's right notwithstanding that the jury's verdict of not guilty will not disclose which of what may have been several necessary factual ingredients of the offence the jury regarded the prosecution as having failed to prove beyond reasonable doubt.
I should mention in precautionary parenthesis, although it is not a matter that is involved in the instant appeal, that the function of the jury as triers of fact to the exclusion of the judge in a trial on indictment is limited to finding facts that are brought to their attention by admissible evidence, all questions as to the credibility and weight to be attached to such admissible evidence being for the jury alone. What evidence is admissible, however, is a question of law and accordingly the function of determining it is vested in the judge to the exclusion of the jury, even though this may involve, as in the cases of dispute as to the voluntary character of confessions, determination by the judge and not the jury of questions of credibility and weight to be attached to evidence of fact directed to the collateral issue of admissibility.
It lies within the power of parliament to modify or exclude by statute either or both of these basic principles of English criminal law and to do so either generally or in relation to particular offences: but, as was said by this House in Reg. v. Miller, where it is contended that particular provisions of a statute do have that effect:
"Those particular provisions will fall to be construed in the light of general principles of English criminal law so well established that it is the practice of parliamentary draftsmen to leave them unexpressed in criminal statutes, on the confident assumption that a court of law will treat those principles as intended by parliament to be applicable to the particular offence unless expressly modified or excluded."
Such facts of the instant case as have made it necessary for your Lordships to consider, in an appeal against sentence only, the two basic principles of English criminal law, one substantive and the other procedural, to which I have referred, can be stated briefly. They are set out in somewhat greater detail in the judgment of the Court of Appeal.
The appellant, Courtie, was arraigned in the Crown Court of York, before a circuit judge sitting with two justices, on an indictment containing a single count in which the Statement of Offence and Particulars of Offence were as follows:
BUGGERY, contrary to Section 12(1) of the Sexual Offences Act 1956
THOMAS COURTIE, on the 6th day of February 1982, committed buggery with Neil Rodmell, a male person under the age of twenty one years, namely of the age of nineteen years
To that indictment Courtie pleaded guilty. In order to appreciate what were the legal consequences of such a plea it is necessary to analyse the wording of the indictment in the light of the relevant legislation.
The Statement of Offence refers only to section 12(1) of the Sexual Offences Act 1956 (the Act of 1956). Like its predecessor, section 61 of the Offences Against the Person Act 1861, this section makes statutory the previously existing common law offence of buggery without incorporating any definition of its essential factual ingredients. All that the Act of 1956 does in addition as respects the offence of buggery which is relevant to the instant appeal, is to prescribe in paragraph 3 of Schedule 2 as the maximum penalty for the common law offence, imprisonment for life. The conduct that was the necessary ingredient of buggery at common law was the penetration by the male human sexual organ of the anus of another human being or an animal. It was thus an offence which necessarily involved the participation of a male human being (described in the Act of 1956, as a "man" regardless of whether or not he had reached the age of majority), but it could be committed by the active participant with another man, with a female...
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