R v Pickford
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HIRST,MR. JUSTICE LAWS |
| Judgment Date | 18 February 1994 |
| Judgment citation (vLex) | [1994] EWCA Crim J0218-3 |
| Docket Number | 93/1445/W3 |
| Court | Court of Appeal (Criminal Division) |
| Date | 18 February 1994 |
[1994] EWCA Crim J0218-3
IN THE COURT OF APPEAL CRIMINAL DIVISION
Before: Lord Justice Hirst Mr. Justice Tudor Evans and Mr. Justice Laws
93/1445/W3
MR. R. ATHERTON appeared on behalf of the Crown
MR. D. HALE appeared on behalf of the Appellant.
Mr. Justice Laws will give the judgment of the Court.
MR. JUSTICE LAWSOn 11th January 1993 at the Chester Crown Court John Andrew Pickford pleaded guilty to two counts of an indictment which charged him with a series of sexual offences. The first was count 3: incitement to commit incest. The other was count 8: unlawful sexual intercourse with a girl under 13.
He was sentenced to two years imprisonment on count 3 and four years concurrent on count 8. Despite his plea of guilty he applies for leave to appeal against his conviction on count 3. There is also an application for leave to appeal against the overall sentence passed on both counts.
These two applications have been referred to the full court by the Registrar. This judgment deals only with the application relating to conviction.
The Crown was represented before us and we heard full argument from both sides. Accordingly we propose to treat the hearing of the application as the hearing of the substantive appeal, from which it follows that we grant leave.
The facts which gave rise to that conviction were these. The appellant was married to a woman who had three children, two boys and a girl. The elder of the two boys was born on 22nd August 1961.
On an occasion whose date cannot be precisely specified, the appellant forced this boy to have sexual intercourse with his mother, the appellant's wife. It took place in the presence of his step-daughter (who was the victim of the offence charged in count 8, to which the application as regards sentence relates). The circumstances of this event, as described in the witness statements, are extremely unpleasant and distressing, but it is not necessary to go into them in order to determine the issues of law upon which the appeal turns.
The particulars of the offence which are pleaded in count 3 are, for reasons which we shall explain, of great importance in the case. They are in these terms:
"John Andrew Pickford on a day between the 1st day of January 1975 and the 31st day of December 1975 unlawfully incited Louis William Pickford, a male person, to have sexual intercourse with Elizabeth Barbara Osbourne Pickford, a woman who he knew to be the mother of the said Louis William Pickford".
As we have said, the boy's date of birth was 22nd August 1961. It will at once be apparent that his 14th birthday fell between the two dates referred to in the particulars. It was on 21st August 1975.
Mr. Hale, on behalf of the Crown, accepts that the state of the evidence was such that the incident might have taken place before that date, although it is unlikely. Mr. Atherton, to whose skeleton argument which identifies the relevant evidence the court is indebted, concedes that the preponderance of the material passages in the statements indicates that it happened after the boy was 14, but submits that the matter is not free from doubt.
In view of the Crown's concession, we do not think it necessary to analyse the witness statements so far as they bear on the date of the incident. We think it right to proceed on the basis that on their face they do not establish beyond doubt that it took place after 21st August 1975. What the position would have been had the witnesses given viva voce evidence and been cross-examined, we cannot of course determine.
The significance of the date when this very nasty event took place arises because of the law's presumption, now abolished but effective at the time of the appellant's trial, that a boy under 14 is incapable of an offence involving the act of sexual intercourse by him. The appellant's argument, within which the presumption is relied upon, engages the authority of R v. Whitehouse 65 CAR 33, which we shall describe shortly.
Mr. Atherton submits that it is a necessary ingredient of the offence of incitement to commit a crime that the person incited was himself legally capable of the crime in question. If the stepson was under 14 when the relevant events took place, he was not capable of committing incest with his mother. Since it is not shown that he was over 14 at the time, it follows that the appellant is not guilty of the offence charged in count 3.
We should first say that if in truth the appellant pleaded guilty to an offence not known to the law, his plea would be no bar to this Court entertaining an appeal against conviction, and Mr. Hale for the Crown did not submit the contrary. This position is vouchsafed by Whitehouse in the court's judgment delivered by Scarman LJ (as he then was) at page 35.
Mr. Hale, for the Crown, accepted, by reason of the presumption against capacity in a boy under 14 for a sexual crime involving intercourse, that the boy's age is a critical element, both in the primary offence of incest by a male person, and in the offence of inciting a male person to commit incest. We consider that he was right to do so. It is beyond argument that until the coming into force of the Sexual Offences Act 1993 a male under 14 could be convicted (as the primary offender) neither of rape nor of unlawful sexual intercourse with an under-age girl. But the legal presumption was not merely that he was incapable of committing either of these specific offences; it was that he was incapable of committing any crime, one of whose elements was sexual intercourse by him.
In R v. Waite [1892] 2 QB 600, which held that a boy under 14 could not commit the offence of carnal knowledge of a girl under 13, the Court for Crown Cases Reserved was content to rest its reasoning on the presumption, established since Hale's time, that such a boy was incapable of rape; thus it is plain that the principle did not rest on the particular offence under consideration, but amounted to a general rule. It follows that a boy under 14 could not be convicted of any offence whose actus reus involved the act of intercourse with a woman by him. Archbold expresses the rule thus (paragraph 20–18):
"A boy under that age was presumed incapable of being a principal in any offence of which sexual intercourse is an ingredient".
The presumption therefore must have applied to the offence of incest by a male person. In addition, since it is a necessary element of the offence of incitement that the person incited be capable of committing the primary crime (as Whitehouse demonstrates: see page 36), it follows that no person can be guilty of inciting a boy under 14 to commit incest.
The first point which we ought to consider is one not taken by the Crown against the appellant, but one which was put by the court in the course of argument. In order to explain it, it is necessary to examine the Whitehouse case. The appellant had pleaded guilty to an indictment charging him with incitement to commit incest. The particulars of the offence given in the indictment were:
"That Arthur Whitehouse on a date unknown between December 1st 1975 and February 10th 1976 unlawfully incited Kathleen Ann Whitehouse, a girl then aged 15, who was to his and her knowledge his daughter, to have sexual intercourse with him".
Section 11(1) of the Sexual Offences Act 1956 provides in part:
"It is an offence for a woman of the age of 16 or over to permit a man whom she knows to be her … father … or son to have sexual intercourse with her by her consent".
In Whitehouse the daughter, alleged on the face of the indictment to have been 15 at the relevant time, was not capable of the offence of incest with her father. For reasons explained at page 36 of the report, the court was prepared to assume for the purposes of the appeal that the indictment could be read, or treated as amended, so as to charge the appellant with the offence of inciting a girl of 15 to aid and abet him to commit incest with her. The court proceeded to hold, basing itself on the authority of Tyrrell [1894] 1 QB 710, that a girl under 16 was not in law capable of aiding and abetting her father to commit incest upon her. That being so, it was held that the indictment, even in its putative amended form, disclosed no offence known to the law. Once it was shown that the person incited was not capable of committing the principal crime, it followed that the appellant could not be guilty of incitement. The court regarded it as clear law that it is a necessary ingredient of the offence of incitement that the person incited be capable of committing the crime in question.
In Whitehouse, as we have said, the particulars of the offence on their face alleged the fact that the girl was 15, so that the court was able to, and did, arrive at its conclusion by looking no further than the indictment itself. The present case is different. Here lies the point which the court put to counsel in the course of argument. Count 3 alleged, as we have made plain, that the incitement offence was committed in a bracket of time during part of which the stepson was indeed under 14. But for the remaining part of the period specified he was over 14. In those circumstances, the question arises whether this appellant did in truth plead guilty to an offence not known to the law.
In one sense he clearly did no such thing, since there is no defect whatever appearing strictly on the face of the indictment; and, of course the plea of guilty was to the charge as the indictment framed it.
In order to mount his case, Mr. Atherton relies:
(a) on the stepson's undoubted date of birth, which is...
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