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K, Crown Prosecution Service v [2000] EWCA Crim 57 (31st October, 2000)
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[2000] EWCA Crim 57
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CROWN PROSECUTION SERVICE v. `K' [2000] EWCA Crim 57 (31st October, 2000)
Case No: 200004142 S3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Tuesday 31 October 2000
B e f o r e :
LORD JUSTICE ROCH
MR JUSTICE ROUGIER
and
MR JUSTICE GRAY
|
CROWN
PROSECUTION SERVICE
|
Appellant
|
|
-
and -
|
|
|
`K'
|
Respondent
|
- - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - -
Anthony Scrivener QC & Anthony Heaton-Armstrong (instructed by the
Crown Prosecution Service for the Appellant)
David Fisher QC & Irena Ray-Crosby (instructed by Messrs Marsh
Ferriman & Cheale for the Respondent)
Judgment
As Approved by the Court
Crown Copyright ©
ROCH LJ:
1. On 6th April this year, following transfer of his case from the W
Magistrates' Court to the C Crown Court on 29th March, an indictment was
preferred against K charging him with indecent assault contrary to section
14(1) of the Sexual Offences Act 1956. The particulars of the offence charged
were:
"K (the Complainant), on 7th Day of February 2000, indecently assaulted a girl
under the age of 16 years, namely the age of 14 years."
2. At a pre-trial directions hearing on 28th April those acting for K indicated
their intention to raise a preliminary issue namely, whether to establish the
defendant's guilt, the Prosecution had to prove that the defendant at the time
of the incident did not honestly believe that the complainant was 16 years or
over.
3. The preliminary issue was heard on 23rd June by His Honour Judge Thorpe.
The judge ruled that the Prosecution had the burden of proving the absence of
genuine belief that the girl was 16 or over. The judge gave the Prosecution
leave to appeal to this court.
4. Section 14(1) of the Sexual Offences Act 1956 provides:
"(1) It is an offence, subject to the exception mentioned in sub-section (3)
of this section, for a person to make an indecent assault on a woman.
(2) A girl under the age of 16 cannot in law give any consent which would
prevent an act being an assault for the purposes of this section.
(3) Where a marriage is invalid under section 2 of the Marriage Act 1949, or
section 1 of the Age of Marriage Act 1929 (the wife being a girl under the age
of 16), the invalidity does not make the husband guilty of any offence under
this section by reason of her incapacity to consent while under that age, if he
believes her to be his wife and has reasonable cause for the belief.
(4) A woman who is a defective cannot in law give any consent which would
prevent an act being an assault for the purposes of this section but a person
is only to be treated as guilty of an indecent assault on a defective by reason
of that incapacity to consent if that person knew or had reason to suspect her
to be a defective."
5. The issue in this appeal is whether the presumption of law that mens rea is
required before a person can be held guilty of a criminal offence applies to
the offence with which K has been charged; whether he is only guilty of that
offence if he knew that the Complainant was under the age of 16 years and for
that reason could not give the consent which would have prevented his acts
being an assault for the purposes of section 14, or was reckless as to her age,
so that he is entitled to be acquitted if the Prosecution fail to prove that he
had no genuine belief that the girl was 16 years or over. In other words has
the presumption been displaced by the wording of section 14 itself? The
presumption is the presumption that a person is not guilty of a criminal
offence if he genuinely believes that the facts were such that had the facts
been as he believed them to be, he would have been committing no offence.
6. The complaint in this case, made by a 14 year old schoolgirl, is that she
was indecently assaulted by K touching her private parts without her consent, K
having accosted her in the street shortly before 9 o'clock in the evening of
the 7th of February, as she was walking home. K's case is that the girl told
him she was 16 and he had no reason to disbelieve her. She told him she was
still at school but gave him no reason to doubt what she said about her age.
She consented to all the sexual activity which occurred between them and agreed
to meet K the following Wednesday. In fact the girl made a complaint to the
police on the 9th February. As a consequence, when K returned to the same
street the following Wednesday he was arrested by the police. K does not
dispute that he touched the girl's private parts. If section 14 of the 1956
Act creates an offence of strict liability, that is to say if it makes the
deliberate touching of a girl who is under the age of 16 in circumstances which
make that touching indecent an offence, then K accepts that he is guilty. We
were told that K was a man of 26 years of age with no previous conviction who
was in regular employment.
7. The judge's ruling started by commenting on the increase in the number of
cases of indecent assaults against young girls and stating that with changing
moral views young people were in a very difficult position. The judge then
assumed that K had a genuine belief that the girl was over 16 and that he had
or may have had a genuine belief that she was consenting when he touched her.
The judge then reminded himself of the decision of the Court of Criminal Appeal
in
R v Maughan (1934) 24 Cr App R. 130, where it was held that
the predecessor of section 14 of the 1956 Act did not permit a defence of
honest but mistaken belief that the girl was over 16. The judge then adopted
the description of the Sexual Offences Act, 1956, as a "motley collection of
offences", borrowing that phrase from the speech of Lord Nicholls in
B (a
minor) v DPP (2000) 2 Cr App R 65 at 74B. The judge quoted a passage
from the speech of Lord Mackay in that case that, "The common law presumes that
unless Parliament indicated otherwise, the appropriate mental element is an
unexpressed ingredient of every statutory offence". The judge went on to
observe that the House of Lords in
B (a minor) v DPP (above)
confirmed what he, the judge thought was settled law, namely that when it was a
question of a mistake of fact, the belief need only be genuine; it did not have
to be reasonable. The judge expressed the view that because the House of Lords
in that case overruled the decision of the Court of Criminal Appeal in
R
v Prince (1875) 2 C.C.R. 154, and their Lordships had implicitly
overruled the decision in
Maughan (above). If the judge was
wrong that
Maughan was no longer good law then the requirements
of a fair trial contained in Article 6 of the European Convention of Human
Rights, that the Defendant should understand exactly what is being alleged
against him call for section 14 now to be read as a section which no longer
created an offence of strict liability. For those reasons the judge ruled that
it was for the Prosecution to prove the absence of a genuine belief on the part
of the Accused that the Complainant was in fact aged 16 or over.
8. Mr Scrivener QC for the Appellant accepted that the case of
B (a
minor) v DPP (above) had established that the presumption that mens rea
is an ingredient of an offence meant that, where the presumption applies, a
defendant is not guilty if he holds an honest belief that the facts are such
that no offence has been committed. It is not necessary for there to be
reasonable grounds on which that belief is based. Mr Scrivener further
accepted that that case established that the presumption applied to all
statutory offences unless Parliament has excluded it expressly or by necessary
implication. Mr Scrivener conceded that section 14 does not in express terms
exclude the presumption but argued that by the way in which it is drafted
Parliament had excluded the presumption by necessary implication. That that
was so was well established by earlier authorities which were binding on this
court, or if not binding of great persuasive value. Mr Scrivener here was
referring to the cases of
Forde (1923) 17 Cr App R. 99,
R v
Keech (1929) 21 Cr App R. 125 and
R v Maughan (above).
The members of the House of Lords in
B (a minor) v DPP were
careful not to overrule these authorities when it came to the interpretation of
section 14 of the 1956 Act and nothing that appears in the speeches of Lord
Nicholls, Lord Steyn or Lord Hutton was directed to the question whether the
presumption was excluded by the wording of section 14. On the contrary, if the
1956 Act provided no guidance to the correct interpretation of section 1 of the
1960 Act it had to follow that a decision on the correct interpretation of
section 1 of the 1960 Act could not provide guidance to the proper reading of
section 14 of the 1856 Act.
9. Mr Scrivener submitted that the European Convention of Human Rights added
nothing to the Respondent's argument in this appeal. The Convention confers
rights on victims. In creating the offence contained in section 14 there was
no violation of Article 6(2) in that the wording of section 14 maintains the
rights of the Defence. It is still for the Prosecution to prove beyond
reasonable doubt that there has been an assault, that is to say a deliberate
act by the Defendant in circumstances which make that assault indecent, and
that the girl assaulted is under the age of 16.
10. Mr Fisher QC for the Respondent argued that the authorities on which Mr
Scrivener relied are old and were decided before the passing of the 1956 Act.
In the light of the House of Lords decision in
B (a minor) v DPP
(above) those authorities should no longer be considered good law. In any
event in those authorities the Court of Criminal Appeal had been critical of
the legislation. For example, in
Keech at p. 131 Lord Hewart,
Chief Justice, had said, "There is nothing to be subtracted from the criticisms
that are there offered upon this amazing legislation and obviously there is
nothing that can be added to them." In the case of
Laws (1928)
21 Cr App R. 45 & 46 the Lord Chief Justice referred to the legislation
preceding the 1956 Act as having created "a grotesque state of affairs". At
least one member of the House of Lords in that case expressed a view on the
proper reading of section 14. Mr Fisher was referring to this passage in the
speech of Lord Nicholls at p.74B:
"Where the Crown's argument breaks down is that the motley collection of
offences, of diverse origins, gathered in the Sexual Offences Act 1956 displays
no satisfactorily clear or coherent pattern. If the interpretation of section
1 of the Act of 1960 is to be gleaned from the contents of another statute,
that other statute must give compelling guidance. The Act of 1956 as a whole
falls short of this standard. So do the two sections, sections 14 and 15,
which were the genesis of section 1 of the 1960 Act."
In addition, Mr Fisher submitted that to read section 14 as an example of
Parliament implicitly overruling the presumption would be contrary to Article
6(2) of the Convention because it would in part destroy the presumption of
innocence and allow the Prosecution to obtain a conviction where the
Prosecution were not able to prove all the ingredients of the offence.
11. The authorities on which Mr Scrivener relied were concerned with statutory
provisions which preceded the Act of 1956. Section 52 of the Offences Against
the Persons Act 1861 provided:
"Whosoever shall be convicted of any indecent assault upon any female,.....,
shall be liable, at the discretion of the court, to be imprisoned for any term
not exceeding two years, with or without hard labour."
Section 5 of the Criminal Law Amendment Act, 1885, provided:
"Any person who:
(1) unlawfully and carnally knows....any girl being of or above the age of 13
years and under the age of 16 years....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 2 years with or without hard labour.
Provided that it shall be a sufficient defence to any charge under sub-section
(1) of this section if it shall be made to appear to the court or jury before
whom the charge should be brought that the person so charged had reasonable
cause to believe that the girl was of or above the age of 16 years......."
Section 1 of the Criminal Law Amendment Act, 1922, provided:
"It shall be no defence to a charge or indictment for an indecent assault on a
child or young person under the age of 16 to prove that he or she consented to
the act of indecency."
Section 2 of that Act provided:
"Reasonable cause to believe that a girl was of or above the age of 16 years
shall not be a defence to a charge under section 5 or 6 of the Criminal Law
Amendment Act, 1885....... Provided that in the case of a man of 23 years of
age or under the presence of reasonable cause to believe that the girl was over
the age of 16 years shall be a valid defence on the first occasion on which he
is charged with an offence under this section."
12. The result of these statutory provisions was that it was, until the coming
into force of the Criminal Law Amendment Act, 1922, a defence to the offence of
having unlawful and carnal knowledge of a girl of or above the age of 13 and
under the age of 16 that the person charged had reasonable cause to believe
that the girl was of or above the age of 16 years. After the coming into force
of the 1922 Act the defence was limited to men of 23 years or under provided
that it was the first occasion on which the man had been charged with an
offence under section 5 of the Criminal Law Amendment Act, 1885. The defence
of reasonable cause to believe that the girl was of or above the age of 16
years, was never a defence to the lesser offence of indecent assault.
Therefore, as the greater offence included the lesser offence, if a defendant
under the age of 24 was charged with the greater offence, then provided it was
the first time he had been charged with such an offence, he had a defence,
whereas if, although he was alleged to have had sexual intercourse with the
girl, he was charged with indecent assault, that defence was not open to him.
This was the "grotesque state of affairs" criticised by the Court of Criminal
Appeal in the cases relied upon by Mr Scrivener. It is indeed odd that in the
face of the sustained criticism of the anomaly created by these statutory
provisions, the same anomaly should have been preserved by sections 6 and 14 of
the Sexual Offences Act, 1956. The anomaly will not arise in the present case
because K is over the age of 24.
13. The importance of the decisions in cases such as
Forde and
Maughan for the purposes of this appeal is that despite the Court
of Criminal Appeal being critical of the legislation, the court consistently
held that Parliament in these provisions had with regard to offences of
indecent assault on girls under the age of 16 excluded the presumption of mens
rea by necessary implication. In
Maughan the appellant had been
charged with unlawfully and carnally knowing a girl of the age of 13 and under
the age of 16 and with indecent assault upon the same girl at the same time and
place. The jury had acquitted Maughan of unlawful and carnal knowledge on the
ground that he came within proviso to section 2 of the 1922 Act, that is to say
there was present reasonable cause for Maughan to have believed that the girl
was 16 years or over. The jury on the directions of the judge found Maughan
guilty of indecent assault. In an appeal on the ground that the indecent
assault consisted solely in the act of carnal knowledge of a girl under 16 by a
man under 23 who had in law and in fact a complete defence to such an act of
carnal knowledge which must have remained available to him although he was only
charged with indecent assault, the Court of Criminal Appeal repeated what they
had said in the case of
Forde, namely:
"The result of this legislation is that a boy who is tempted and induced to
have carnal knowledge of a girl who misrepresents herself to be over 16, and
who appears to be so, has no possible answer if he is charged with indecent
assault and not with the full offence."
The court went on to express the hope that the Legislature would take notice of
the apparent absurdity resulting from the state of the legislation and that the
legislation would be amended.
14. It is likely that when Parliament enacted the Sexual Offences Act, 1956,
such criticisms would have been brought to Parliament's attention.
Nevertheless, Parliament proceeded to enact statutory provisions which closely
resembled those in earlier legislation which the 1956 Act was to replace.
15. Against that background the conclusion that we have reached is that
Parliament, in the 1956 Act, did exclude any defence of genuine belief that the
girl was over 16 to a charge of indecent assault on a girl under the age of 16.
We consider that this must follow from the terms of section 14 themselves.
First, subsection 2 provides that in the case of a girl under the age of 16,
however willing a participant she may have been in sexual activity between
herself and the defendant, her consent cannot stop that activity being an
indecent assault upon her. That touching of her by the defendant is an
indecent assault because Parliament has expressly enacted that it is to be an
indecent assault. Subsections 3 and 4 of section 14 do provide defences based
on genuine belief, albeit that under subsection 3 the prosecution can defeat
the defence by establishing that there was no reasonable cause for the belief.
If Parliament had intended that genuine belief should be a defence to the
offence created by section 14(1) it would have been unnecessary for Parliament
to enact subsections 3 and 4. Those subsections only have a purpose if it is
no defence for an accused to say that he or she honestly believed that the girl
was 16 years or over. It follows, in our judgment, that Parliament has
excluded such a defence by necessary implication.
16. We have read the speeches of their Lordships in
B (a minor) v
DPP (above) with care to see if the decision in that case would allow
of a different conclusion. We notice first that the decision was a "close run
thing". Three members of the Divisional Court believed that Parliament in
section 1 of the 1960 Act had created an offence of strict liability because of
the social and moral imperative identified by Mr Justice Rougier in his
judgment(see (1999) 1 Cr App R. 163 at 167A. Lord Steyn in his speech accepted
that the matter was finely balanced, see (2000) 2 Cr App R. 83E, and Lord
Hutton considered the arguments for the appellant and the Crown to be almost
evenly balanced, see p.89A. Although Lord Nicholls could not accept the
Crown's argument in relation to the interpretation of section 1 of the 1960
Act, namely that the correct interpretation was to be gleaned from the contents
of the 1956 Act and in particular sections 14 and 15, Lord Nicholls recognised
that to be a formidable argument, see p.74B. The members of the House of Lords
were careful not to overrule such cases as
Forde and
Maughan, see Lord Nicholls at p74E; Lord Steyn at p.83D. In this
passage Lord Steyn found it unnecessary to examine the legal position under
sections 14 and 15 of the 1956 Act. He pointed out that the scope of sections
14 and 15 is markedly narrower than section 1(1) with which that case was
concerned. Sections 14 and 15 required the Crown to prove an assault which
necessarily required an intentional act and to that extent at least mens rea is
an ingredient which the prosecution must prove.
17. Mr Fisher did not ask this court to make a declaration of incompatibility
between section 14 of the 1956 Act and Article 6 of the Convention. Counsel
relied upon section 3(1) of the Human Rights Act, 1998, which provides:
"So far as it is possible to do so, primary legislation and subordinate
legislation must be read and given effect in a way which is compatible with the
Convention rights."
It was submitted that the earlier decisions of the Court of Criminal Appeal on
the interpretation of the statutory provisions preceding the 1956 Act are no
longer good law because in those cases the courts were not under an obligation
to read and give effect to the legislation in a way compatible with the
Convention rights. Article 6(2) would be violated if section 14 is treated as
creating an absolute offence where the complainant is under the age of 16.
18. The reading of section 14 which we consider to be correct is not, in our
judgment, incompatible with Article 6(2) of the Convention. The European Court
of Human Rights in
Salabiaku v France (1988) 13 E.H.R.R. 379
accepted in paragraph 27 of their judgment at p.387 that:
"In principle the contracting states remain free to apply the criminal law to
an act where it is not carried out in the normal exercise of one of the rights
protected under the Convention and, accordingly, to define the constituent
elements of the resulting offence. In particular, and again in principle, the
contracting states may, under certain conditions, penalise a simple or
objective fact as such, irrespective of whether it results from criminal intent
or from negligence."
Later in their judgment at paragraph 28 the court observed that:
"Presumptions of fact or of law operate in every legal system. Clearly, the
Convention does not prohibit such presumptions in principle. It does, however,
require the contracting state to remain within certain limits in this respect
as regards criminal law. .....Article 6(2) does not therefore regard
presumptions of fact or of law provided for in the criminal law with
indifference. It requires states to confine them within reasonable limits
which take into account the importance of what is at stake and maintain the
rights of the defence."
19. As Lord Hope said in
R v DPP ex parte Kebilene and others
(2000) 1 Cr App R 275 at 330A:
"As a matter of general principle therefore a fair balance must be struck
between the demands of the general interest of the community and the protection
of the fundamental rights of the individual."
Parliament in 1956 considered that the balance between the demands of the
general interests of the community and the protection of the fundamental rights
of the individual required that girls under the age of 16 should be protected
by making it an offence for a person to touch them in circumstances which are
indecent. As we have already said the rights of the defence are maintained in
that it is still for the prosecution to prove that the complainant is under 16
years of age and that there has been a deliberate touching of that girl by the
defendant in circumstances which make the touching indecent.
20. The fact that some may think that girls of 14 or 15 ought to be capable of
consenting to sexual activity with others or that such a touching of a girl
under the age of 16 by a person of a similar age to the girl where the girl has
been a willing participant in sexual experimentation should not be criminal;
that in cases of the kind identified by Lord Justice Brooke in
B v
DPP in the Divisional Court at p.176E-G should not be guilty of a
criminal offence may make it desirable that Parliament should look again at
sections 14 and 15 of the 1956 Act. It must still be open to Parliament to
provide that sexual activity with a child or young person under a particular
age is absolutely forbidden to those of the age and capacity for criminal
responsibility. At present, with regard to indecent assaults on females
Parliament has decided that the balance is to be struck by providing that the
age group to be protected should be those under the age of 16 years. We do not
consider that we could say that by providing that the balance should be struck
at that point Parliament is being unfair or unreasonable, although we can
express the hope that Parliament might look again at this area of the law
relating to sexual offences.
21. For those reasons we would reverse the judge's ruling on the preliminary
issue. In our judgment the Prosecution do not have to prove that the Defendant
at the time of the incident did not honestly believe that the complainant was
16 years or over.
© 2000 Crown Copyright