R v Head
| Jurisdiction | England & Wales |
| Judge | Viscount Simonds,Lord Reid,Lord Tucker,Lord Somervell of Harrow,Lord Denning |
| Judgment Date | 06 March 1958 |
| Judgment citation (vLex) | [1958] UKHL J0306-2 |
| Date | 06 March 1958 |
| Court | House of Lords |
[1958] UKHL J0306-2
Viscount Simonds
Lord Reid
Lord Tucker
Lord Somervell of Harrow
Lord Denning
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Director of Public Prosecutions against Head, That the Committee had heard Counsel, as well on Wednesday the 15th, as on Thursday the 16th, days of January last, upon the Petition and Appeal of the Director of Public Prosecutions, praying, That the matter of the Order set forth in the First Schedule thereto, namely, an Order of Her Majesty's Court of Criminal Appeal, of the 1st of November 1957, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; and Counsel having been heard on behalf of John Shortriggs Head, the Respondent to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Criminal Appeal, of the 1st day of November 1957, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellant do pay, or cause to be paid, to the said Respondent the Costs incurred by him in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
The facts of this case are fully set out in the opinion of my noble and learned friend, Lord Tucker. I will not occupy time by stating them myself, though I am conscious that the few observations that I have to make are not easily intelligible without them. I do not doubt that questions of great importance are directly or indirectly raised by the judgment of the Court of Criminal Appeal in this case, but in accordance with the practice which has consistently been observed since the Court of Criminal Appeal was established they were not formulated for the consideration of the House. In the result I have for my part found it difficult to determine exactly what is the question for decision—and by that I mean of course the question which is at issue between the appellant and the respondent in this appeal. I should not think it desirable, particularly in a criminal case, to travel outside that issue.
The bald facts of the case are that the respondent was charged with having had carnal knowledge of a woman who was placed out on licence from an Institution for mental defectives contrary to section 56(1) ( a) of the Mental Deficiency Act, 1913. He was convicted, but upon appeal the conviction was quashed. It was quashed upon the ground that the woman was not lawfully detained in the Institution. The Lord Chief Justice said that where a man was prosecuted for this offence (now an offence against section 8 of the Sexual Offences Act, 1956) "evidence must be given by the production of the relevant documents that the woman in respect of whom the charge is made was at the time of the offence lawfully subject to the Act". Mr. Justice Donovan used similar language. The documents under which the woman was detained were in fact produced at the trial. I need say no more than that on the face of them they appeared to be defective. The Attorney-General in the Court of Criminal Appeal admitted that in appropriate proceedings they could be successfully challenged, e.g.: upon a writ of habeas corpus. He did not recede from this admission before the House but contended that it was irrelevant whether or not in such proceedings they could be challenged. He urged that the relevant section of the Act was passed for the protection of a certain class of women, amongst them women "under care or treatment in an institution … or while placed out on licence there-from". He conceded that in its context the expression "under care or treatment" meant under care or treatment as a mental defective, but contended that, if the woman was in fact under such care or treatment in an institution or placed out on licence therefrom, it was not open to the defendant to question the legality of the detention. He pointed out that the proviso gives adequate protection to a man who, being charged with the offence, proves that he did not know and had no reason to suppose that she was a defective.
My Lords, this House no less than other Courts of law is traditionally jealous to safeguard the liberty of the subject; but I agree with the learned Attorney-General that such a consideration is irrelevant to the present case. Is it the man's liberty or the woman's that is at stake? Not his, unless a man is to be at liberty to have carnal knowledge of any woman who is under treatment in an institution on the chance that a defect may be found in the order of detention; nor hers, for she is not a party, nor are the proper authorities parties, to the proceedings, and her eventual liberty will be determined by other considerations beyond those of a defect in an Order made many years ago.
I speak with diffidence knowing that I differ from the Court of Criminal Appeal and from the majority of your Lordships, but I cannot refrain from saying with what anxiety I regard the possibility that, as a result of this decision, whenever a man is charged with this offence, he can, though he knows that the woman is under care or treatment as a mental defective demand to see all "the relevant documents" (whatever they may be) and finding perchance a flaw in them, successfully plead that she was not lawfully detained and that he therefore has committed no offence. I must, I think, assume that any defect which would support a writ of habeas corpus would be available to him, and further that the same result would follow whether the woman was, as in the present case, on the high road to recovery or was such a defective as to stand in particular need of the protection afforded by the Act.
I would therefore decline to read section 56 of the Act as imposing on the prosecution the burden of proving that the person under care or treatment in an institution or placed out on licence therefrom was not only in fact under such care or treatment or so placed out on licence but also was lawfully detained.
The Attorney-General supported his case by the plea that, if the prosecution had to prove lawful detention of an inmate of an institution, the burden of proof might be very heavy, and this plea was much debated. If upon its true construction the section imposes this burden, I respectfully doubt whether it is material that the burden is heavy or light. In the view which I take this question does not arise, but if it did I should be content to adopt what my noble and learned friend Lord Tucker says about it, and I would join in the reservations made by my noble and learned friend Lord Somervell of Harrow.
One other point should be mentioned. It was not clear to me whether one of the questions at issue in this appeal was whether in a prosecution for this offence the Crown must prove that the woman was at the time of the offence a mental defective. I think that at one time the learned Attorney-General was inclined to accept that burden. But, if so, he was in my opinion wrong. I believe that all your Lordships take the same view. The appeal will in accordance with your Lordships' opinion be dismissed with costs.
My Lords,
I have had the advantage of reading the speeches about to be delivered by my noble and learned friends. I agree with that of Lord Tucker and I would concur in the reservations to be made by Lord Somervell of Harrow.
My Lords,
On 22nd May, 1957, the Respondent was convicted of two offences against section 56 (1) ( a) of the Mental Deficiency Act, 1913, after a trial before Hinchcliffe, J. and a jury at the Cumberland Assizes held at Carlisle. He appealed to the Court of Criminal Appeal who quashed his conviction on 1st November, 1957. The Director of Public Prosecutions now appeals to this House pursuant to the certificate of the Attorney-General granted on 11th November, 1957.
The Indictment contained two counts alleging that the Respondent on two occasions in October, 1956, had carnal knowledge of a girl named Elfreda Henderson, a mental defective on licence from an institution for mental defectives.
It will suffice to set out one of these counts, which reads as follows:—
"Statement of Offence
Carnal knowledge of mental defective, contrary to section 56 (1) ( a) of the Mental Deficiency Act 1913.
Particulars of Offence
"John Shortriggs Head on the 7th day of October, 1956, in the County of Cumberland had carnal knowledge of Elfreda Henderson a woman on licence from Dovenby Hall Hospital, an institution for mental defectives."
The Superintendent of Dovenby Hall gave evidence for the prosecution and produced and put in evidence certain documents relating to the girl Henderson for the purpose of proving that she was lawfully detained as a defective and duly let out on licence on the material date. The documents included an order made by the Home Secretary under section 9 of the Mental Deficiency Act, 1913, and dated 2nd July, 1947, for Henderson's transfer from an approved school where she then was to a certified institution as defined in the Act in Cornwall. Subsequent orders transferring her to other institutions and finally to Dovenby Hall were also produced. The licence permitting her to be absent was not put in evidence. Donovan, J. in the Court of Criminal Appeal was mistaken in thinking it had been proved and received in evidence.
Counsel for the defence challenged the validity of the...
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