Parliamentary
Archives,
HL/PO/JU/4/3/1268
HOUSE OF LORDS
DIRECTOR OF PUBLIC PROSECUTIONS
(RESPONDENT)
v.
MORGAN (APPELLANT)
DIRECTOR OF PUBLIC PROSECUTIONS
(RESPONDENT)
v.
mcdonald (appellant)
DIRECTOR
OF PUBLIC PROSECUTIONS (RESPONDENT)
v.
McLARTY (APPELLANT)
DIRECTOR OF PUBLIC PROSECUTIONS
(RESPONDENT)
v.
PARKER (APPELLANT)
Lord
Cross of Chelsea
Lord
Hailsham of St. Marylebone
Lord Simon of
Glaisdale
Lord
Edmund-Davies
Lord
Fraser of Tullybelton
Lord Cross of Chelsea
MY LORDS,
The facts of this case are set
out in the speeches of my noble and learned
friends, Lord Hailsham
of St. Marylebone and Lord Edmund-Davies. The
question of law
which is raised by the appeal is whether the judge was right
in
telling the jury that, if they came to the conclusion that Mrs.
Morgan had
not consented to the intercourse in question but that
the defendants believed
or may have believed that she was
consenting to it, they must nevertheless
find the defendants
guilty of rape if they were satisfied that they had no
reasonable
grounds for so believing. If the direction given by the judge
was
wrong in law, the further question arises whether the case is
one in which the
conviction should stand notwithstanding the
misdirection by virtue of the
proviso to section 2(1) of the
Criminal Appeal Act 1968. The Sexual
Offences Act 1956 which
provides by section 1(1) that it is an offence " for a
"
man to rape a woman " contains no definition of the word "
rape ". No
one suggests that rape is an " absolute "
offence to the commission of which
the state of mind of the
defendant with regard to the woman's consent is
wholly irrelevant.
The point in dispute is as to the quality of belief which
entitles
the defendant to be acquitted and as to the " evidential "
burden of
proof with regard to it.
The submissions of counsel for
the appellants can be summarised as
follows: —
" When it is said—as
it was for example by Stephen J. in R. v.
" Tolson
23 Q.B.D. 168 at 185—that the mental element in rape is
an
" intention to have intercourse without the woman's
consent that means
" not simply an intention to have
intercourse with a woman who is not
" in fact consenting to
it but an intention to have non-consensual inter-
" course,
not, of course, in the sense that it must be shown that the
"
defendant would have been unwilling to have had intercourse with
the
" woman if he had thought that she was consenting to it,
but in the
" sense that he was either aware that she was not
consenting or did not
" care whether or not she consented.
That does not mean that the
2
" Crown is obliged to
adduce positive evidence as to the defendant's
" state of
mind. If it adduces evidence to show that intercourse took
"
place and that the woman did not consent to it then in the absence
of
" any evidence from the defendant the jury will certainly
draw the
" inference that he was aware that she was not
consenting. So as a
" practical matter he is bound—if
he wishes to raise the point—to give
" evidence to the
effect that he believed that she was consenting and as
" to
his reasons for that belief; and the weaker those reasons are the
"
more likely the jury is to conclude that he had no such belief. But
the
" issue as to the accused's belief in the woman's consent
is before the
" jury from the beginning, and is an issue in
respect of which the
" evidential burden is on the Crown from
first to last. There is never
" any question of any
evidential burden with regard to it being on the
" accused or
of the judge withdrawing it from the jury."
The submissions of counsel for
the Director can be summarised as
follows: —
" When it is said that the
" mens rea " in rape means an intention to
"
have intercourse without consent that means no more than that the
"
intercourse must be intentional. Rape is in fact analogous to
bigamy
" where the offence is defined as going through a
ceremony of marriage
" when you are in fact married to
someone else. But though the Crown
" discharges the
evidential burden which is on it when it adduces, in a
" case
of rape, evidence of intercourse and lack of consent, or, in a case
"
of bigamy, evidence of marriage during the subsistence of an
earlier
" marriage, R. v. Tolson shows that it
is open to the defendant on
" general principles of criminal
liability, not in any way confined to rape
" or bigamy, to
raise the defence that he had reasonable grounds for
"
believing that the woman was consenting or that his earlier
marriage
" was no longer subsisting, as the case may be. If
he raises such a
" defence then since the evidential burden
of establishing it is on him the
" judge must rule whether
the evidence of belief on reasonable grounds
" is sufficient
to justify the defence being put to the jury. If he rules
"
that it is then the onus is on the Crown to satisfy the jury that
the
" defendant in fact either had no such belief or had no
reasonable
" grounds for entertaining it."
Before I turn to consider which
of these rival contentions is to be preferred
there are three
matters to which I would refer. The first relates to the
judgment
of the Court of Appeal. I am not, I believe, alone among
your
Lordships in finding that judgment hard to follow. I have no
doubt that
the Court rejected the submissions of the appellants
but whether they accepted
the contention advanced by the
respondent that rape consists simply in inten-
tionally having
intercourse with a woman who does not in fact consent, or
whether
they were putting forward some other definition of the offence,
and,
if so, what that other definition was, I really do not know.
Secondly, I would say something
as to how far—if at all—the decision in
R. v.
Tolson, which was, of course, a case of bigamy, has a bearing
on this
case. The statute there provided that " who ever
being married shall marry
" any other person during the life
of the former husband or wife shall be
" guilty of felony "
with a proviso that: —
" nothing in this section
contained shall extend to any person marrying
" a second time
whose husband or wife shall have been continually
" absent
from such person for the space of seven years then last past,
" and sha11 not have been
known by such person to be living within that
"time."
The defendant who was found by
the jury to have had reasonable grounds
for believing that her
husband was then dead—though in fact he was not—
went
through a ceremony of marriage with another man within seven years
of
the time when she last knew of his being alive. She therefore fell
within
the very words of the statute. Nevertheless, the majority
of the Court of
Crown Cases Reserved held that she was entitled to
be acquitted because on
3
general principles of criminal
liability, having no particular relation to the
crime of bigamy, a
mistaken belief based on reasonable grounds in the
existence of
facts, which, if true, would have made the act charged against
her
innocent, afforded her a defence since it was not to be supposed
that
Parliament intended bigamy to be an " absolute "
offence to the commission
of which the state of mind of the
defendant was wholly irrelevant. The
minority of the judges, on
the other hand, thought that the existence of the
proviso which
gave an express exemption from liability in certain circum-
stances
made it impossible to imply an exemption from liability in
other
circumstances not covered by it. If the Sexual Offences Act
1956 had
provided that it was an offence for a man to have sexual
intercourse with
a woman who did not consent to it then the case
of R. v. Tolson would
undoubtedly have been in point; but
what the Act says is that it is an
offence for a man to "
rape " a woman and, as I see it, one cannot say that
R. v.
Tolson applies to rape unless one reads the words " rape
a woman "
as equivalent to " have intercourse with a
woman who is not consenting
" to it". Counsel for the
Director says, of course, that they are equivalent
but the
question remains whether he is right.
Finally, I must refer to an
alternative submission, made by counsel for the
appellant—namely,
that in R. v. Tolson the Court was wrong in saying
that
to afford a defence to a charge of bigamy the mistaken belief
of the defendant
had to be based on reasonable grounds. It is, of
course, true that the
question whether a mistaken belief honestly
held but based on no reasonable
grounds would have afforded a
defence was not argued in that case. There
had been several
conflicting decisions by judges on assize—one saying that
an
honest belief would be a defence, others that a belief on
reasonable
grounds would be a defence, and yet others that not
even a belief on
reasonable grounds would be a defence. In R.
v. Tolson Stephen J. asked
the jury whether they
thought that the defendant in good faith and on
reasonable grounds
believed her husband to be dead at the date of her
second
marriage. Having obtained an affirmative answer he then, in order
to
get the point settled by the Court of Crown Cases Reserved, directed
the
jury—contrary to his own opinion—that such a
belief would not be a defence
and, after they had duly convicted
Mrs. Tolson, sentenced her to one day's
imprisonment. On her
appeal against her conviction, her counsel was not,
of course,
concerned to dispute the view that a mistaken belief had to be
based
on reasonable grounds, since the jury had held that his client had
had
reasonable grounds for her belief, and the question whether an
honest belief
would have been enough was never argued. If it had
been argued, it is
possible that some of the judges who were in
the majority—though having
regard to the way in which he
framed his question, I do not think that
Stephen J. would have
been one of them—might have held that a mistaken
belief
honestly but unreasonably held was enough. But R. v. Tolson
was
decided over eighty years ago. It is accepted as a leading
authority in the
law of bigamy not only in this country (see R.
v. King [1964] 1 Q.B. 285
and R. v. Gould
[1968] 2 QB 65) but also in Australia (see Thomas v.
JR.
59 C.L.R. 279). Moreover, the phrase " an honest and
reasonable belief
" entertained by the accused of the
existence of facts, which, if true, would
" make the act
charged against him innocent " has been adopted on
several
occasions as a definition of mens rea generally
applicable to cases where the
offence is not an absolute one but
the words defining it do not expressly or
impliedly indicate that
some particular mens rea is required to establish it.
(See
Bank of New South Wales v. Piper [1897] AC 383: by
Lord Reid in
R. v. Warner [1969] 2 A.C. 256 at 268:
and by Lord Diplock in Sweet v.
Parsley [1970] AC 132 at 164/165). Counsel did not refer us to any case
in which the
propriety of the inclusion of the element of " reasonableness
"
has been doubted ; and its inclusion was, in fact, approved
in R. v. King and
by Lord Diplock in Sweet v.
Parsley. So, even if I had been myself inclined
to think
that the inclusion of the element of reasonableness was wrong,
I
would not have thought it right for us to call it in question in
this case. In
fact, however, I can see no objection to the
inclusion of the element of
reasonableness in what I may call a "
Tolson " case. If the words defining an
offence provide
either expressly or impliedly that a man is not to be guilty
4
of it if he believes something
to be true, then he cannot be found guilty if
the jury think that
he may have believed it to be true, however inadequate
were his
reasons for doing so. But, if the definition of the offence is on
the
face of it " absolute " and the defendant is seeking
to escape his prima facie
liability by a defence of
mistaken belief, I can see no hardship to him in
requiring the
mistake—if it is to afford him a defence—to be based
on
reasonable grounds. As Lord Diplock said in Sweet v.
Parsley, there is
nothing unreasonable in the law requiring
a citizen to take reasonable care
to ascertain the facts relevant
to his avoiding doing a prohibited act. To
have intercourse with a
woman who is not your wife is, even today, not
generally
considered to be a course of conduct which the law ought
positively
to encourage and it can be argued with force that it is
only fair to the
woman and not in the least unfair to the man that
he should be under a duty
to take reasonable care to ascertain
that she is consenting to the intercourse
and be at the risk of a
prosecution if he fails to take such care. So if the
Sexual
Offences Act 1956 had made it an offence to have intercourse with
a
woman who was not consenting to it, so that the defendant could
only escape
liability by the application of the "Tolson"
principle, I would not have
thought the law unjust.
But, as I have said, section 1
of the 1956 Act does not say that a man who
has sexual intercourse
with a woman who does not consent to it commits an
offence; it
says that a man who rapes a woman commits an offence. Rape
is not
a word in the use of which lawyers have a monopoly and the
question
to be answered in this case, as I see it, is whether
according to the ordinary
use of the English language a man can be
said to have committed rape if he
believed that the woman was
consenting to the intercourse and would not
have attempted to have
it but for his belief, whatever his grounds for so
believing. I do
not think that he can. Rape, to my mind, imports at
least
indifference as to the woman's consent. I think, moreover,
that in this
connection the ordinary man would distinguish between
rape and bigamy.
To the question whether a man who goes through a
ceremony of marriage
with a woman believing his wife to be dead,
though she is not, commits
bigamy, I think that he would reply "
Yes,—but I suppose that the law
" contains an escape
clause for bigamists who are not really to blame ".
On the
other hand, to the question whether a man, who has intercourse with
a
woman believing on inadequate grounds that she is consenting to it,
though
she is not, commits rape, I think that he would reply "No.
If he was
" grossly careless then he may deserve to be
punished but not for rape ". That
being my view as to the
meaning of the word " rape " in ordinary parlance,
I
next ask myself whether the law gives it a different meaning. There
is very
little English authority on the point but what there
is—namely, the reported
directions of several common law
judges in the early and the middle years
of the last
century—accords with what I take to be the proper meaning
of
the word. The question has been canvassed in a number of recent
cases
in New South Wales and Victoria but there is only one of
them—R. v. Daly
[1968] V.R. 257—that I
find of much assistance. In none of the others do
the judges
advert to the fact that to include an intention to have
intercourse
whether or not the woman consents in the definition of
rape and to say that a
reasonable mistake with regard to consent
is an available defence to a charge
of rape are two incompatible
alternatives which cannot be combined in a
single direction to a
jury—as, incidentally, the judge combined them in one
passage
in his summing up in this case. In R. v. Daly the
Court, as well
as drawing that distinction which I regard as
fundamental, indicated pretty
clearly that it thought—as I
do—that the former approach to the problem
was the right
one. For these reasons, I think that the summing up contained
a
misdirection.
The question which then arises
as to the application of the proviso is far
easier of solution. I
suppose that cases may occur in which the problem
which was
discussed at such length on this appeal may be of more than
academic
interest but on the facts of this case it was of no practical
importance
whatever. If the appellants when they came to give
evidence had said that
what Mrs. Morgan had said was perfectly
true, that she had never at any
5
stage given any sign that she
was consenting to—let alone enjoying—the
intercourse,
but that they were so much influenced by what her husband had
told
them that they believed throughout that her manifestations of
unwilling-
ness were only play acting, then it is conceivable that
a jury, on a proper
direction, might have acquitted them. They
might, that is to say, have said
to themselves that though it was
almost incredible that any young men
could have been so stupid
yet, having seen and heard them, they would give
them the benefit
of the doubt. But the appellants chose—most unwisely—
to
challenge the truth of Mrs. Morgan's evidence and to assert that
although
to start with she manifested some unwillingness when it
came to the point
she co-operated in the proceedings with evident
relish. So, as the judge
made clear at the outset of his summing
up, the only real issue in the case
was whether what took place in
the Morgan's house that night was a
multiple rape or a sexual
orgy. The jury obviously considered that the
appellants' evidence
as to the part played by Mrs. Morgan was a pack of
lies and one
must assume that any other jury would take the same view
of the
relative credibility of the parties. That any jury which thought
that
the grounds for a belief in consent put forward by the
defendants, which
if truly held would have been eminently
reasonable, were in fact never
entertained by them at all, should
in the same breath hold that they may
have had an honest belief in
consent based on different and unreasonable
grounds is
inconceivable. So I would apply the proviso and dismiss the
appeal.
Lord Hailsham of St.
Marylebone
MY LORDS,
In Hyam v. D.P.P.
[1974] 2 All E.R. 41 this House discussed the mental
element
in murder. This appeal is concerned with the mental element in
rape.
It involves two questions at vastly different levels of importance
but
each strangely illustrative of the other, which were argued
before us. The
first is a question of great academic importance in
the theory of English
criminal law, certified for this House by
the Court of Appeal, which also
gave leave to appeal. The second,
which arises only if the first is answered
favourably to the
appellants, is whether the House can be satisfied that no
miscarriage
of justice has taken place so as to compel them to apply the
proviso
to section 2(1) of the Criminal Appeal Act, 1968. As I propose
to
answer these two questions, as to the first favourably, and as the
second,
unfavourably to the appellants, and thus dismiss the
appeals, I will begin
this opinion with the facts.
The four appellants were all
convicted at the Stafford Crown Court
of various offences
connected with alleged rapes upon the person of Daphne
Ethel
Morgan of whom the first appellant is, or, at the material time
was,
the husband. The second, third and fourth appellants were
convicted each
of a principal offence against Mrs. Morgan, and
each of aiding and abetting
the principal offences alleged to have
been committed by each of the other
two. The appellant Morgan, who
also had connexion with his wife allegedly
without her consent as
part of the same series of events, was not charged
with rape, the
prosecution evidently accepting and applying the ancient
common
law doctrine that a husband cannot be guilty of raping his own
wife.
Morgan was therefore charged with and convicted of aiding
and
abetting the rapes alleged to have been committed by the other
three.
Although each appellant was
originally separately represented, their
appeals raise the same
point, and they were accorded single representation
before this
House. The question certified as being of general public impor-
tance
by the Court of Appeal, and the only point of principle raised
on
their behalf is:
" Whether, in rape, the
defendant can properly be convicted notwith-
" standing that
he in fact believed that the woman consented, if such
"
belief was not based on reasonable grounds ".
6
The question arises in the
following way. The appellant Morgan and
his three co-defendants,
who were all members of the R.A.F., spent the
evening of the 15th
August, 1973, in one another's company. The appellant
Morgan was
significantly older than the other three, and considerably
senior
to them in rank. He was, as I have said, married to the
alleged
victim, but not, it seems at the time habitually sleeping
in the same bed.
At this time, Mrs. Morgan occupied a single bed
in the same room as her
younger son aged about eleven years, and
by the time the appellants arrived
at Morgan's house, Mrs. Morgan
was already in bed and asleep, until she
was awoken by their
presence.
According to the version of the
facts which she gave in evidence, and which
was evidently accepted
by the jury, she was aroused from her sleep, frog-
marched into
another room where there was a double bed, held by each
of her
limbs, arms and legs apart, by the four appellants, while each of
the
three young appellants in turn had intercourse with her in the
presence
of the others, during which time the other two committed
various lewd acts
upon various parts of her body. When each had
finished and had left
the room, the appellant Morgan completed the
series of incidents by having
intercourse with her himself.
According to Mrs. Morgan she
consented to none of this and made her
opposition to what was
being done very plain indeed. In her evidence to
the Court, she
said that her husband was the first to seize her and pull her
out
of bed. She then " yelled " to the little boy who was
sleeping with
her to call the police, and later, when the elder
boy came out on the
landing, she called to him also to get the
police, and " screamed ". Her
assailants, however,
covered her face and pinched her nose, until she begged
them to
let her breathe. She was held, wrists and feet, " dragged "
to the
neighbouring room, put on the bed where the various
incidents occurred.
At this stage she was overcome by fear of "
being hit". There was never
a time when her body was free
from being held. When it was all over
she grabbed her coat, ran
out of the house, drove straight to the hospital
and immediately
complained to the staff of having been raped. This last
fact was
fully borne out by evidence from the hospital.
In their evidence in Court, the
appellants made various damaging
admissions which certainly
amounted to some corroboration of all this.
They admitted that
some degree of struggle took place in the bedroom, that
Mrs.
Morgan made some noise which was forcibly suppressed, and that
she
was carried out forcibly into the other bedroom, and that her arms
and
legs were separately held. In addition to this, Mrs. Morgan's
evidence
was far more fully corroborated by a number of statements
(each, of course,
admissible only against the maker) which
virtually repeated Mrs. Morgan's
own story but in far greater and
more lurid detail. Of course, the
appellants repudiated their
statements in the witness box, saying that the
words were put into
their mouths by the police, even though at least one
was written
out in the hands of the makers of the statement. I think it
likely
to the extent of moral certainty that the jury accepted that
these
statements were made as alleged and contained the truth. But
I need not
rest my opinion upon this, since the undeniable fact is
that the jury
accepted, after an impeccable summing-up and
adequate corroboration, that
Mrs. Morgan was telling the truth in
her evidence. I mention all these
details simply to show, that if,
as I think plain, the jury accepted Mrs.
Morgan's statement in
substance there was no possibility whatever of any
of the
appellants holding any belief whatever, reasonable or otherwise,
in
their victim's consent to what was being done.
The primary " defence "
was consent. I use the word " defence " in
inverted
commas, because, of course, in establishing the crime of rape,
the
prosecution must exclude consent in order to establish the
essential
ingredients of the crime. There is no burden at the
outset on the accused
to raise the issue. Nevertheless, at the
close of the prosecution case the
accused had a formidable case to
answer, and they answered by going
into the witness box and
swearing to facts which, if accepted, would have
meant, not merely
that they reasonably believed that Mrs. Morgan had
7
consented, but that, after she
entered the bedroom where the acts of
intercourse took place, she
not merely consented but took an active and
enthusiastic part in a
sexual orgy which might have excited unfavourable
comment in the
Courts of Caligula or Nero.
All four defendants explained in
the witness box that they had spent
the evening together in
Wolverhampton, and by the time of the alleged
offences had had a
good deal to drink. Their original intention had been
to find some
women in the town, but when this failed, Morgan made the
surprising
suggestion to the others that they should all return to his home
and
have sexual intercourse with his wife. According to the three
younger
appellants (but not according to Morgan who described this
part of their
story as " lying ") Morgan told them that
they must not be surprised if his
wife struggled a bit, since she
was " kinky " and this was the only way in
which she
could get " turned on ". However this may be, it is clear
that
Morgan did invite his three companions home in order that
they might have
sexual intercourse with his wife, and, no doubt,
he may well have led
them in one way or another to believe that
she would consent to their
doing so. This, however, would only be
matter predisposing them to
believe that Mrs. Morgan consented,
and would not in any way establish
that, at the time, they
believed she did consent whilst they were having
intercourse.
I need not enter into the
details of what the defendants said happened
after they had
arrived at the house. As I have said they admitted that
some
degree of struggle took place in the wife's bedroom. But all
asserted
that after she got into the double bedroom she not merely
consented to
but actively co-operated with and enjoyed what was
being done. She
caressed and masturbated their private parts, she
licked their private parts,
she made noises and " moans"
of pleasure. When it was all over she said,
" Have you all
had a go? ", but not in a sarcastic sense. In other words,
she
was actively participating in a sexual orgy, and was anxious to
see
that each of the participants had enjoyed himself as much as
she.
The choice before the jury was
thus between two stories each wholly
incompatible with the other,
and in my opinion it would have been quite
sufficient for the
judge, after suitable warnings about the burden of
proof,
corroboration, separate verdicts and the admissibility of
the statements
only against the makers, to tell the jury that they
must really choose between
the two versions, the one of a violent
and unmistakeable rape of a singularly
unpleasant kind, and the
other of active co-operation in a sexual orgy,
always remembering
that if in reasonable doubt as to which was true they
must give
the defendants the benefit of it. In spite of the valiant attempts
of
counsel to suggest some way in which the stories could be taken
apart
in sections and give rise in some way to a situation which
might
conceivably have been acceptable to a reasonable jury in
which, while
the victim was found not to have consented, the
appellants, or any of
them could conceivably either reasonably or
unreasonably have thought she
did consent, I am utterly unable to
see any conceivable half-way house.
The very material which could
have introduced doubt into matter of consent
goes equally to
belief and vice versa. As the judge's summing-up, so far
as
relevant to this point, was wholly impeccable, and as the jury
obviously
accepted the victim's story in its substance there is in
my view no conceivable
way in which a miscarriage of justice can
have taken place and therefore
no possibility of quashing these
convictions, even though, as I shall show,
the substantial
question of principle should be answered in favour of the
appellants'
contention.
The certified question arises
because counsel for the appellants raised
the question whether,
even if the victim consented, the appellants may
not have honestly
believed that she did. As I have pointed out, the question
was
wholly unreal, because if there was reasonable doubts about
belief,
the same material must have given rise to reasonable doubt
about consent,
and vice versa. But, presumably because, at
that stage, the jury's view of
the matter had not been sought, the
matter was left to them, as the appellants
8
complain, in a form which
implied that they could only acquit if the mistaken
belief in
consent was reasonable, and it was not enough that it should
be
honest. This ruling was originally made at the close of the case for
the
prosecution, but, as it was subseuently embodied in the
summing-up, it is
sufficient to refer to this.
I will quote the principal
passage in extenso from the record. The learned
judge said:
"First of all, let me deal
with the crime of rape. What are its
" ingredients? What have
the Prosecution to prove to your satisfaction
" before you
can find a defendant guilty of rape? The crime of rape
"
consists in having unlawful sexual intercourse with a woman without
"
her consent and by force. By force. Those words mean exactly
"
what they say. It does not mean there has to be a fight or blows
"
have to be inflicted. It means that there has to be some violence
"
used against the woman to overbear her will or that there has to be
"
a threat of violence as a result of which her will is overborne.
You
" will bear in mind that force or the threat of force
carries greater
" weight when there are four men involved
than when there is one
" man involved. In other words,
measure the force in deciding whether
" force is used. One of
the elements to which you will have regard
" is the number of
men involved in the incident."
" Further, the Prosecution
have to prove that each defendant intended
" to have sexual
intercourse with this woman without her consent. Not
" merely
that he intended to have intercourse with her but that he
"
intended to have intercourse without her consent. Therefore if the
"
defendant believed or may have believed that Mrs. Morgan consented
"
to him having sexual intercourse with her, then there would be no
"
such intent in his mind and he would be not guilty of the offence
of
" rape, but such a belief must be honestly held by the
defendant in the
" first place. He must really believe that.
And, secondly, his belief
" must be a reasonable belief; such
a belief as a reasonable man
" would entertain if he applied
his mind and thought about the matter.
" It is not enough for
a defendant to rely upon a belief, even though
" he honestly
held it, if it was completely fanciful; contrary to every
"
indication which could be given which would carry some weight with
"
a reasonable man. And, of course, the belief must be not a belief
"
that the woman would consent at some time in the future, but a
"
belief that at the time when intercourse was taking place or when
"
it began that she was then consenting to it."
No complaint is made of the
first paragraph where the learned judge is
describing what, to use
the common and convenient solecism, is meant
by the actus reus
in rape. Nor is there any complaint by the appellants
of the
judge's first proposition describing the mental element.
It is upon the second
proposition about the mental element that the
appellants
concentrate their criticism. An honest belief in consent,
they
contend, is enough. It matters not whether it be also
reasonable. No doubt
a defendant will wish to raise argument or
lead evidence to show that his
belief was reasonable, since this
will support its honesty. No doubt the
prosecution will seek to
cross examine or raise arguments or adduce
evidence to undermine
the contention that the belief is reasonable, because,
in the
nature of the case, the fact that a belief cannot reasonably be
held
is a strong ground for saying that it was not in fact held
honestly at all.
Nonetheless, the appellants contend, the crux of
the matter, the factum
probandum, or rather the fact to be
refuted by the prosecution, is honesty
and not honesty plus
reasonableness. In making reasonableness as well as
honesty an
ingredient in this " defence " the judge, say the
appellants, was
guilty of a misdirection.
My first comment upon this
direction is that the propositions described
" in the first
place " and " secondly " in the above direction as to
the mental
ingredient in rape are wholly irreconcileable. In
practice this was accepted
by both counsel for the appellants and
for the respondent, counsel for the
9
appellants embracing that
described as " in the first place " and counsel
for the
respondent embracing the " secondly ", and each rejecting
the other
as not being a correct statement of the law. In this, in
my view, they had
no alternative.
If it be true, as the learned
judge says " in the first place", that the
prosecution
have to prove that " each defendant intended to have sexual
"
intercourse without her consent. Not merely that he intended to
have
" intercourse with her but that he intended to have
intercourse without
" her consent." the defendant must
be entitled to an acquittal if the prosecu-
tion fail to prove
just that. The necessary mental ingredient will be lacking
and the
only possible verdict is " not guilty ". If, on the other
hand, as is
asserted in the passage beginning " secondly ",
it is necessary for any belief
in the woman's consent to be "
a reasonable belief " before the defendant
is entitled to an
acquittal, it must either be because the mental ingredient
in rape
is not " to have intercourse and to have it without her consent"
but
simply " to have intercourse " subject to a special
defence of " honest and
" reasonable belief ", or
alternatively to have intercourse without a reason-
able belief in
her consent. Counsel for the Crown argued for each of
these
alternatives, but in my view each is open to insuperable
objections
of principle. No doubt it would be possible, by
statute, to devise a law
by which intercourse, voluntarily entered
into, was an absolute offence,
subject to a " defence "
of belief whether honest or honest and reasonable,
of which the
evidential" burden is primarily on the defence and the
"
probative " burden on the prosecution. But in my opinion such is
not
the crime of rape as it has hitherto been understood. The
prohibited act
in rape is to have intercourse without the victim's
consent. The minimum
mens rea or guilty mind in most common
law offences, including rape, is
the intention to do the
prohibited act, and that is correctly stated in the
proposition
stated " in the first place " of the judge's direction. In
murder
the situation is different, because the murder is only
complete when the
victim dies, and an intention to do really
serious bodily harm has been
held to be enough if such be the
case.
The only qualification I would
make to the direction of the learned
judge's " in the first
place " is the refinement for which, as I shall show,
there
is both Australian and English authority, that if the intention of
the
accused is to have intercourse nolens volens, that is
recklessly and not caring
whether the victim be a consenting party
or not, that is equivalent on
ordinary principles to an intent to
do the prohibited act without the consent
of the victim.
The alternative version of the
learned judge's direction would read that
the accused must do the
prohibited act with the intention of doing it without
an honest
and reasonable belief in the victim's consent. This in effect is
the
version which took up most of the time in argument, and although
I
find the Court of Appeal's judgment difficult to understand, I
think it the
version which ultimately commended itself to that
Court. At all events I
think it the more plausible way in which to
state the learned judge's
" secondly ". In principle,
however, I find it unacceptable. I believe that
" mens rea
" means " guilty or criminal mind ", and if it be
the case, as
seems to be accepted here that mental element in rape
is not knowledge
but intent, to insist that a belief must be
reasonable to excuse is to insist
that either the accused is to be
found guilty of intending to do that which
in truth he did not
intend to do, or that his state of mind, though innocent
of evil
intent, can convict him if it be honest but not rational. Even
if
full value is to be given to the " probative " burden
as defined in Wool-
mington v. D.P.P. [1935] AC 462, this is to insist on an objective element
in the definition
of intent, and this is a course which I am extremely
reluctant to
adopt, especially after the unhappy experience of the House
after
the decision in D.P.P v. Smith [1961] A.C. 290, a case
which is full of
warnings for us all, and which I fully discussed
in Hyam v. D.P.P. [1974]
2 A11E.R. 41.
So far from my being constrained
to adopt this objective element in the
mental element in rape, the
prosecution had to travel to New South Wales
10
for direct authority in their
favour (see Flaherty (1968) 89 W.N. Pt. 1
(N.S.W.) 141 and
Sperotto & Salvietti [1970] 1. N.S.W.R. 502). In place
of
direct authority they relied on the very wide range of bigamy cases
in
England and Australia from Tolson (1889) 23 QBD 168
to Thomas (1937)
59 C.L.R. 279, King [1964] 1 Q.B.
285. and Gould [1968] 2 QB 65, on
the abduction case of
Prince (1875) Law Rep. 2 C.C. 154, 13 C.C.C. 138,
on the
analogies of the " defences " of " self defence "
and " provocation "
in murder and assault, and on the
remarks of Lord Diplock in Sweet v.
Parsley [1970] AC 132 at pp. 164 and 165.
By contrast, the appellants'
counsel had a fairly impressive list of authori-
ties directly
applying to the crime of rape and saying that the prohibited
act
is sexual intercourse without consent, and the intention is to do
the
prohibited act, that is to have sexual intercourse without
consent or irres-
pective of whether the victim consents or not.
First amongst these authorities
I would cite the traditional definition of
rape as enshrined in
paragraph 2871 of the current Archbold:
" Rape consists in having
unlawful sexual intercourse with a woman
" without her
consent by force, fear or fraud ".
for which are cited as
authorities 1 East P.C. 434 and 1 Hale 627.
It is true that this definition
contains no express explicit reference to a
mental element, and
the model indictment displayed some paragraphs later
observes the
same reticence. But this is misleading. Not only would it
be
repugnant for any common law crime of this gravity to lack a
mental
element, but as Lord Diplock pointed out in Sweet v.
Parsley [1970] AC 132
at p. 162, both statutory and
common law offences employ habitually in
their definitions words
which impliedly import into the definition of the
crime an
implication of an intent or state of mind in the accused. I
regard
the words " force, fear or fraud " as of this
sort. It was suggested in argument
that these simply described
ways of disproving consent. I do not agree.
There is also a series of direct
statements by successive judges charging
juries of speaking of
rape which bear out the appellants' contention. Thus in
Wright
4 F. & F. 967, 176 E.R. 869, Channell, B., who had to deal
with
charges of rape and assault with intent to commit rape,
charged a jury :
" Both charges required an
intent ... to commit the act by force
" against her (the
victim's) will ".
The note to the case also
contains reference to a similar and earlier charge
by Coleridge J.
in the case of Stanton. In Tolson (supra) Stephen J. in
talk-
ing of the mental element in crime said at p. 185,
" Mens rea means ... in the
case of rape, an intention to have
" forcible connection with
a woman without her consent".
He had made a similar statement
in the 7th edition of Roscoe's Criminal
Evidence. A similar charge
in cases of assault with intent to commit rape
was given by
Patteson J. in Lloyd (1836) 7 C. & P. 317.
In contrast to the New South
Wales Cases, in four Victorian cases, the
Court took a view
directly in support of the appellants' contention (see
Hornbuckle
(1945) v. L.R. 281 ; Daly [1968] v. R. 257; Flannery &
Prender-
gast [1969] v. R. 31; Buries [1947] v. L.R.
392). In passing I may say that
although on the whole case that
Court favoured the " objective " test, even
the Court of
Criminal Appeal of New South Wales expressly approved this
view of
the mental ingredient of the crime in Sperotto & Salvietti
[1970] 1
N.S.W.R. 502 where they said at p. 504:
" In all crimes at common
law a guilty intention is a necessary
" element and with the
crime of rape this intention is to have carnal
" knowledge of
the woman without her consent. In order to convict the
"
accused of the crime of rape and, subject to what is hereinafter
said, to
" establish this intention on his part the Crown
must prove beyond
" reasonable doubt that when the accused
had intercourse with the
11
" woman either (i) he was
aware that she had not consented, or (ii) he
" realized that
she might not be consenting and was determined to have
"
intercourse with her whether she was consenting or not. The intent
"
and the act must both concur to constitute the crime ".
They then cited Thomas v.
R. (1937) 59 C.L.R. 279 at p. 287.
How then can one explain the
apparently analogous cases relied on by the
respondents which seem
to establish that the defence of mistake of fact, in
order to be a
" defence " to a criminal charge must depend on an "
evidential"
burden to be discharged by the defence before the
"probative" burden
reverts to the Crown, to introduce
material on which the jury could find
a belief on the part of the
accused which is not only honest, but
reasonable?
Bridge J., in giving the
judgment of the Court of Appeal, attempted to do
so by three
propositions which, again, I quote in extenso. He said:
" The relevant principles
can perhaps be restated in the following
" propositions:
" 1. In all crimes the
Crown has both the evidential and the probative
" burden of
showing that the accused did the prohibited act, and where
"
that act, according to the definition of the offence, is an act of
volition,
" of showing that the act of the accused in
voluntary. An obvious
" example of a crime where the
evidential burden on the Crown is limited
" to these two
elements is common assault.
" 2. Wherever the
definition of a crime includes as one of its express
"
ingredients a specific mental element both the evidential and the
pro-
" bative burden lie upon the Crown with respect to that
element. Typical
" examples are dishonesty in theft and
knowledge or belief in handling.
" In seeking to rebut the
Crown's case against him in reference to his
" state of mind
the accused may and frequently does assert his mistaken
"
belief in non-existent facts. Of course it is right that in this
context the
" question whether there were reasonable grounds
for the belief is only
" a factor for the jury's
consideration in deciding whether the Crown
" has established
the necessary mental element of the crime. This is be-
"
cause the issue is already before the jury and no evidential burden
"
rests upon the accused.
" The decision of the
Divisional Court in Wilson v. Inyang [1951] 2
"
K.B. 799 is to be understood in the light of this principle. The
court
" there rejected the argument that an acquittal by a
magistrate of a
" defendant charged with an offence under
section 40 of the Medical
" Act, 1858, should be reversed on
appeal by case stated on the ground
" that the defendant had
no reasonable ground for his belief that he was
" entitled to
call himself a ' physician '.
" Lord Goddard said at page
803: ' If he has acted without any
" reasonable ground, and
has refrained from making any proper in-
" quiry, that is
generally very good evidence that he is not acting
" '
honestly. But it is only evidence.'
" The Statute, however,
under which that prosecution was brought
" required the
prosecution to prove that the defendant acted ' wilfully
' and
falsely '. Inevitably, therefore, if this subjective mental
element
" was not proved the prosecution failed.
" 3. But where the
definition of the crime includes no specific mental
" element
beyond the intention to do the prohibited act, the accused
"
may show that though he did the prohibited act intentionally he
lacked
" mens rea because he mistakenly, but honestly
and reasonably, believed
" facts which, if true, would have
made his act innocent. Here the
" evidential burden lies upon
the accused but once evidence sufficient to
" raise the issue
is before the jury the probative burden lies upon the
" Crown
to negative the mistaken belief. The rationale of requiring
"
reasonable grounds for the mistaken belief must lie in the law's
12
" consideration that a bald
assertion of belief for which the accused
" can indicate no
reasonable ground is evidence of insufficient sub-
" stance
to raise any issue requiring the jury's consideration. Thus,
"
for example, a person charged with assault upon a victim shown to
"
have been entirely passive throughout who said he had believed
"
himself to be under imminent threat of attack by the victim but
could
" indicate no circumstance giving cause for such a
belief would not
" discharge the evidential burden of showing
a mistaken belief that he
" was acting lawfully in
self-defence."
In the event Bridge J. then went
on to subsume rape under the third and
not the second heading and
so to reach the conclusion: —
" The correct view, we
think, is that, on proof of the fact of absence
" of consent
from circumstances which in the nature of the case must
"
have come to the notice of the defendant, he may be presumed to
have
" appreciated their significance, and it is this
presumption which casts
" upon the defendant the evidential
burden of showing an honest and
" reasonable belief in
consent before any issue as to his state of mind
" can arise
for the jury's consideration."
He goes on to say that, once the
" evidential" burden is discharged the
" probative
burden " is cast once more on the Crown.
With due respect, though with
one qualification there is something to be
said for the premises
of this statement, I do not believe the conclusion
follows. The
qualification I make to the premise is that I can see no
reason
why the class of case to which his second proposition applies
should
be limited to cases where the mental ingredient is limited
to a " specific
" mental element" if, as appears to
be the case, by that is meant an
" ulterior " intent
within Messrs. Smith and Hogan's definition of that term.
(See
Smith & Hogan's text book on the Criminal Law p. 47).
I believe the law on this point
to have been correctly stated by Lord
Goddard in Steane [1947]
K.B. 997, at p. 1004, when he said:
" if on the totality of the
evidence there is room for more than one view
" as to the
intent of the prisoner, the jury should be directed that it is
"
for the prosecution to prove the intent to the jury's satisfaction,
and
" if, on review of the whole evidence, they either think
the intent did
" not exist or they are left in doubt as to
the intent, the prisoner is
" entitled to be acquitted."
That was indeed, a case which
involved a count where a specific, or, as
Professor Smith has
called it, an ulterior, intent was, and required to be,
charged in
the indictment. But, once it be accepted that an intent of what-
ever
discription is an ingredient essential to the guilt of the accused I
cannot
myself see that any other direction can be logically
acceptable. Otherwise a
jury would in effect be told to find an
intent where none existed or where
none was proved to have
existed. I cannot myself reconcile it with my
conscience to
sanction as part of the English law what I regard as
logical
impossibility, and, if there were any authority which, if
accepted would compel
me to do so, I would feel constrained to
declare that it was not to be followed.
However for reasons which
I will give, I do not see any need in the instant
case for such
desperate remedies.
The beginning of wisdom in all
the " mens rea " cases to which our
attention was
called is, as was pointed out by Stephen J. in Tolson (supra)
at
p. 185, that " mens rea " means a number of quite
different things in
relation to different crimes. Sometimes it
means an intention e.g., in
murder, "to kill or to inflict
really serious injury". Sometimes it means
a state of mind or
knowledge, e.g. in receiving or handling goods " knowing
"
them to be stolen". Sometimes it means both an intention and a
state
of mind, e.g. "Dishonestly and without a claim of right
made in good
" faith with intent permanently to deprive the
owner thereof ". Sometimes
it forms part of the essential
ingredients of the crime without proof of
which the prosecution,
as it were, withers on the bough. Sometimes it is
a matter, of
which, though the " probative " burden may be on the
Crown,
13
normally the " evidential"
burden may usually (though not always) rest
on the defence, e.g. "
self defence " and " provocation " in murder,
though
it must be noted that if there is material making the issue
a live one, the
matter must be left to the jury even if the
defence do not raise it. In
statutory offences the range is even
wider since, owing to the difficulty of
proving a negative,
Parliament quite often expressly puts the burden on the
defendant
to negative a guilty state (see per Lord Reid in Sweet v.
Parsley
[1970] A.C. at p. 150, or inserts words like
"fraudulently", "negligently",
"
knowingly ", " wilfully ", " maliciously "
which import special types of guilty
mind, or even imports them by
implication by importing such word as
" permit" (c.f.
per Lord Diplock in the same case at p. 162) or as in Warner
[1969]
2 A.C. 256 prohibit the " possession " of a particular
substance, or as,
in Sweet v. Parsley itself, leaves
the courts to decide whether a particular
prohibition makes a new
" absolute" offence or provides an escape by
means of an
honest, or an honest and reasonable belief. Moreover of course,
a
statute can, and often does, create an absolute offence without any
degree
of mens rea at all. It follows from this, surely,
that it is logically imper-
missible, as the Crown sought to do in
this case, to draw a necessary inference
from decisions in
relation to offences where mens rea means one thing,
and
cases where it means another, and in particular from decisions on
the
construction of statutes, whether these be related to bigamy,
abduction
or the possession of drugs, and decisions in relation to
common law offences.
It is equally impermissible to draw direct or
necessary inferences from
decisions where the mens rea is,
or includes, a state of opinion, and cases
where it is limited to
intention (a distinction I referred to in Hyam, supra),
or
between cases where there is a special " defence ", like
self defence or
provocation and cases where the issue relates to
the primary intention which
the prosecution has to prove.
Once one has accepted, what
seems to me abundantly clear, that the
prohibited act in rape is
non-consensual sexual intercourse, and that the
guilty state of
mind is an intention to commit it, it seems to me to follow
as a
matter of inexorable logic that there is no room either for a "
defence "
of honest belief or mistake, or of a defence of
honest and reasonable belief
and mistake. Either the prosecution
proves that the accused had the requisite
intent, or it does not.
In the former case it succeeds, and in the latter it
fails. Since
honest belief clearly negatives intent, the reasonableness
or
otherwise of that belief can only be evidence for or against
the view that
the belief and therefore the intent was actually
held, and it matters not
whether, to quote Bridge J. in the
passage cited above: "the definition
" of a crime
includes no specific element beyond the prohibited act".
If
the mental element be primarily an intention and not a state of
belief
it comes within his second proposition and not his third.
Any other view,
as for insertion of the word " reasonable "
can only have the effect of saying
that a man intends something
which he does not.
By contrast, the appellants
invited us to overrule the bigamy cases from
Tolson onwards
and perhaps also Prince (the abduction case) as
wrongly
decided at least in so far as they purport to insist that
a mistaken belief
must be reasonable. The arguments for this view
are assembled, and
enthusiastically argued, by Professor Glanville
Williams in his treatise on
Criminal Law between pages 176 and
205, and by Messrs. Smith and
Hogan (see Smith and Hogan at pp.
148, 149 of their text book).
Although it is undoubtedly open
to this House to reconsider Tolson
(supra) and the bigamy
cases, and perhaps Prince (supra) which may stand or
fall
with them, I must respectfully decline to do so in the present case.
Nor
is it necessary that I should. I am not prepared to assume
that the statutory
offences of bigamy or abduction are necessarily
on all fours with rape, and
before I was prepared to undermine a
whole line of cases which have been
accepted as law for so long, I
would need argument in the context of a
case expressly relating to
the relevant offences. I am content to rest my
view of the instant
case on the crime of rape by saying that it is my
opinion that the
prohibited act is and always has been intercourse without
consent
of the victim and the mental element is and always has been the
14
intention to commit that act. or
the equivalent intention of having intercourse
willy-nilly not
caring whether the victim consents or no. A failure to prove
this
involves an acquittal because the intent, an essential ingredient,
is
lacking. It matters not why it is lacking if only it is not
there, and in
particular it matters not that the intention is
lacking only because of a
belief not based on reasonable grounds.
I should add that I myself am
inclined to view Tolson as a
narrow decision based on the construction of
a statute, which
prima facie seemed to make an absolute statutory offence,
with
a provisio, related to the seven year period of absence, which
created
a statutory defence. The judges in Tolson decided
that this was not
reasonable, and, on general jurisprudential
principles, imported into the
statutory offence words which
created a special "defence" of honest and
reasonable
belief of which the " evidential" but not the probative
burden
lay on the defence. I do not think it is necessary to
decide this conclusively
in the present case. But if this is the
true view there is a complete distinction
between Tolson and the
other cases based in statute and the present.
I may also add that I am not
impressed with the analogy based on the
decision in Wilson v.
Inyang [1951] 2 K.B. 799 at p. 803 which has attracted
the
attention of some academic authors. That clearly depends on
the
construction of the words " wilfully and falsely "
where they are used in the
relevant statute. Also, though I get
some support from what I have been
saying from the reasoning of
the decision in Smith (D.R.) [1974] 1 All
E.R. 632, I nevertheless
regard that case as a decision on the Criminal
Damage Act, 1971,
rather than a decision covering the whole law of
criminal
liability.
For the above reasons I would
answer the question certified in the
negative, but would apply the
proviso to the Criminal Appeal Act on the
ground that no
miscarriage of justice has or conceivably could have occurred.
In
my view, therefore, these appeals should be dismissed.
Lord
Simon of Glaisdale
MY LORDS,
I have had the advantage of
reading in draft the speech prepared by my
noble and learned
friend, Lord Edmund-Davies. I concur with him that
the authorities
demand that the question certified for your Lordships'
con-
sideration should be answered, Yes. But, agreeing as I do
with the judgment
of Bridge J. in the Court of Appeal, I feel no
reluctance in coming to this
conclusion, which seems to me to
accord with legal principle and with good
sense.
To say that, to establish a
charge of rape, the Crown must show on the
part of the accused "
an intention to have sexual intercourse with a woman
"
without her consent" is ambiguous. It can denote either, first,
an
intention to have sexual intercourse with a woman who is not,
in fact,
consenting to it. This was the contention advanced on
behalf of the D.P.P.
before your Lordships; but, for the reasons
given by my noble and learned
friends, I do not think that it is
acceptable. Or, secondly, it can mean
an intention to have sexual
intercourse with a woman with knowledge that
she is not consenting
to it (or reckless as to whether or not she is consenting).
I
believe that this second meaning indicates what it is that the
prosecution
must prove.
The problem which faces your
Lordships arises when the accused raises
a case fit for the jury's
consideration that he believed that the woman was
consenting to
sexual intercourse, though in fact she was not doing so. Does
an
honest but unreasonable belief that the woman is consenting to
sexual
intercourse suffice to negative the charge of rape?
The answer to this question, in
my view, depends on the following matters:
first, a distinction
between crimes of basic and of ulterior intent; secondly,
a
distinction between probative and evidential burdens of proof;
thirdly,
the interrelationship of these two distinctions;
fourthly, ascertainment
15
whether rape is a crime of basic
or ulterior intent; and, fifthly, the general
policy of the
criminal law when the prosecution has provisionally discharged
the
burden of proving actus reus and mens rea, and the
accused then
alleges a belief, albeit erroneous, in a state of
facts which would, if true,
negative the actus reus and the
mens rea provisionally proved by the
prosecution. After
examining these five matters I shall endeavour to
determine the
reasons for what I believe to be the general policy of the
criminal
law in such circumstances.
I turn to examine, first, the
distinction between crimes of basic and of
ulterior intent, having
taken the latter expression from Smith & Hogan.
I leave
aside, as irrelevant, crimes of absolute liability ; and I propose
to
use the terms actus reus and mens rea in the
senses which I indicated in
D.P.P, for Northern Ireland v.
Lynch. By " crimes of basic intent" I
mean those
crimes whose definition expresses (or, more often, implies) a
mens
rea which does not go beyond the actus reus: The actus
reus generally
consists of an act and some consequence. The
consequence may be very
closely connected with the act or more
remotely connected with it; but
with a crime of basic intent the
mens rea does not extend beyond the act
and its
consequence, however remote, as defined in the actus reus. I
take
assault as an example of a crime of basic intent where the
consequence is
very closely connected with the act. The actus
reus of assault is an act
which causes another person to
apprehend immediate and unlawful violence.
The mens rea
corresponds exactly. The prosecution must prove that the
accused
foresaw that his act would probably cause another person to
have
apprehension of immediate and unlawful violence or that he
was reckless
as to whether or not his act caused such
apprehension. This foresight
(the term of art is " intention
") or recklessness is the mens rea in assault.
For an
example of a crime of basic intent where the consequence of the
act
involved in the actus reus as defined in the crime is less
immediate, I
take the crime of unlawful wounding. The act is, say,
the squeezing of a
trigger. A number of consequences (mechanical,
chemical, ballistic and
physiological) intervene before the final
consequence involved in the defined
actus reus—namely,
the wounding of another person in circumstances
unjustified by
law. But again here the mens rea corresponds closely to
the
actus reus. The prosecution must prove that the accused
foresaw that
some physical harm would ensue to another person in
circumstances unjusti-
fied by law as a probable consequence of
his act, or that he was reckless
as to whether or not such
consequence ensued.
On the other hand, there are
crimes of ulterior intent—" ulterior " because
the
mens rea goes beyond contemplation of the actus reus. For
example,
in the crime of wounding with intent to cause grievous
bodily harm, the actus
reus is the wounding. The
presecution must prove a corresponding mens rea
(as with
unlawful wounding), but the prosecution must go further: it must
show
that the accused foresaw that serious physical injury would
probably
be a consequence of his act. The crime of wounding with
intent to cause
grievous bodily harm could be committed without
any serious physical
injury being caused to the victim. This is
because there is no actus reus
corresponding to the
ulterior intent. One of the questions which has to be
answered in
this appeal is whether rape is a crime of basic or ulterior intent.
A second relevant distinction
known to the modern law is that between
probative and the
evidential burdens of proof. Though the terminology has
changed,
this distinction goes back to a seminal article by Denning J. (as
he
then was) in (1945) 41 L.Q.R. 379, entitled " Presumtions
and Burdens".
In the criminal law the probative burden of
every issue lies on the prose-
cution (except for the single
common law exception of insanity and some
statutory exceptions).
But the prosecution may adduce evidence sufficient,
at a certain
stage in the trial, to discharge provisionally the probative
burden
and thus call for some explanation on behalf of the accused
(generally by
evidence ; though forensic analysis discounting the
prosecution's case some-
times suffices): the evidential burden
has shifted, though the probative
burden remains on the
prosecution. Again, the accused may raise a case
for the
consideration of the jury on a fresh issue. For example, although
16
the prosecution may have
provisionally discharged the onus of proving
an assault, the
accused may raise an issue of self-defence in a form fit for
the
consideration of the jury: if so, the evidential burden of
disproving
it will shift to the prosecution, which has, of course,
also (once the defence
is raised in a form fit for the
consideration of the jury) the probative burden
of disproving it.
In this way the evidential burden of proof will often shift
backwards
and forwards during a trial, the probative burden
remaining
throughout upon the presecution.
The third matter for
consideration is the interaction between these
two
distinctions—between crimes of basic and of ulterior
intent, on the one
hand, and between probative and evidential
burdens of proof on the other.
Such interaction occurs because
proof of the actus reus generally raises a
presumption of a
corresponding mens rea, an act being usually performed
with
foresight of its probable consequences. I emphasise the words
"
generally " and " usually "; because the inference may
not be a natural
one in some circumstances. For example, a
different inference as to intention
may be drawn from proof that
the accused drove his elbow hard into the
stomach of a stranger in
a crowded train from where it is proved that he did
the same act
when alone with the stranger in the course of an angry
argument.
If the crime is one of basic intent, so that the mens rea does
not
extend beyond the actus reus, proof of the actus reus is
therefore,
generally, sufficient prima facie proof of the
mens rea to shift the evidential
burden of proof. Thus, if
the prosecution proves that the accused squeezed
the trigger of a
firearm and thereby wounded a victim, this will often be
sufficient
proof not only on the actus reus of unlawful wounding but
also
of the necessary mens rea—i.e., that the accused
either foresaw the wounding
as a likely consequence of his act or
was reckless as to whether it ensued—
so as to cause the
evidential burden to shift and thus to call for some
explanation
on behalf of the accused. But if the crime is one of ulterior
intent,
proof of the actus reus tells little about the mens rea
insofar as it
extends beyond the actus reus; so that
the evidential burden does not
necessarily shift on proof of the
actus reus. To prove that A wounded B,
even intentionally,
does not of itself raise a presumption that A thereby
intended to
cause serious physical injury to B.
This brings me to the fourth
question—namely, whether rape is a crime
of basic or
ulterior intent. Does it involve an intent going beyond the
actus
reus? Smith & Hogan (3rd ed. p. 47) say No. I
respectively agree. The
actus reus is sexual intercourse
with a woman who is not in fact consenting
to such intercourse.
The mens rea is knowledge that the woman is not con-
senting
or recklessness as to whether she is consenting or not. That it
is
nothing more can be seen by postulating an offence of rape with
an ulterior
intent. The offence with which the 4th Earl of
Bothwell was popularly
charged by his contemporaries was rape with
intent to procure marriage.
If this were a crime—and several
eighteenth century crimes of abduction
are near analogues—the
crime would be one of ulterior intent. But com-
parison with such
a postulated crime shows that rape itself involves no mens
rea
going beyond the actus reus.
If this is right, proof of the
actus reus in rape—that is, proof of sexual
intercourse
with a woman who did not consent to it—will generally
be
sufficient prima facie proof to shift the evidential
burden. If the evidential
burden shifts in this way, the accused
must either prove that his conduct
was involuntary (which is
irrelevant in the crime of rape) or he must negative
the inference
as to mens rea which might be drawn from the actus
reus.
Assuming that the prosecution has proved sexual
intercourse with a woman
who did not in fact consent to it, in
general the only way in which the
accused can shift back the
evidential burden is by showing a belief in a
state of affairs
whereby the actus would not be reus. In the context of
rape,
the accused in such circumstances must, in other words, show
that he
believed that the woman was consenting. To say that he
must show that he
believed it " honestly " is
tautologous but useful as emphasising a distinction.
The question
is whether he must show that he believed it reasonably, and,
if
so, why.
17
My noble and learned friend,
Lord Edmund-Davies, has reviewed a
number of cases which throw
light on this question. I do not wish to cover
the same ground so
carefully explored. I would, however, emphasise three
matters in
relation to Tolson (1889) 23 QBD 168. First, it is to
be
presumed that Stephen J. took the special verdict of the jury
(that the
accused in good faith and on reasonable grounds
believed her husband to
be dead) because he thought that it
raised the appropriate issue; and none
of the other thirteen
judges in the Court of Crown Cases Reserved questioned
this.
Secondly, bigamy cannot be put in a class by itself because of
the
terms of the statute defining the crime of bigamy. It was the
minority who
felt constrained by the terms of the statute to hold,
in effect, that bigamy
was a crime of absolute liability. The
majority read into the statute, as an
implication of the common
law, a requirement of mens rea. Thirdly, then,
the majority
(without dissent by the minority on this point) proceeded on
the
basis that what, by general common-law principles,
negatived mens rea was
an honest and reasonable
belief in facts which, if true, would make the
questioned act
an innocent one. This appears throughout the majority
judgments;
and I need only refer particularly to the following matters:
Wills J.'s citation at p. 174
(Charles J. concurring) of Campbell C.J. in
Bowman v. Blyth
(1856) 7 E. & B. 26, 43 ("very reasonably believing");
Cave J.'s comment at p. 181
(Day, J. and A. L. Smith J. concurring)
on Reg. v. Prince
(1875) L.R. 2 C.C. 154, 175:
"... it was not suggested
by any of the judges that the exception
" of honest and
reasonable mistake was not applicable to all offences
..."
(my italics).
Stephen J.'s explanation at pp.
187, 188 (Grantham J. concurring) of
Level's Case [Cro.Car.
538 ; 1 Hale P.C. 474] (" upon reasonable grounds ");
Stephen J. p. 188 (Grantham J.
concurring):
"... I think it may be laid
down as a general rule that an alleged
" offender is
deemed to have acted under that state of facts which he in
"
good faith and on reasonable grounds believed to exist when he
did
" the act alleged to be an offence ". (My italics.)
(5) Stephen J.'s agreement at p.
190 (Grantham J. concurring) with Brett J.'s
statement in Prince
(" a mistake of facts on reasonable grounds ... is an
"
excuse ") (my italics). (6) Hawkins J.'s agreement at p. 194
with Brett J.'s
judgment in Prince (" whose language I
cheerfully adopt . . . touching the
" principles of law which
govern such questions as that now before us ").
My noble and learned friend.
Lord Edmund-Davies, has cited the cases
which exemplify the same
rule operating in the common-law doctrine of
self-defence. Once
the prosecution has discharged the burden of proving an
actus
reus of assault and (by inference therefrom or extrinsically) the
neces-
sary mens rea, the evidential burden shifts to the
accused. He can discharge
it by raising a case fit for the
consideration of the jury that he believed in
a state of affairs
whereby the actus proved by the prosecution would not
be
reus. He may do this by showing that his conduct towards the
victim
was prompted by his belief that the victim was about to
attack him, and
that what he did was no more than was necessary
for his own defence in the
circumstances as he believed them to
exist. But it is clear law that, in order
to establish a defence
in such circumstances, his belief must be based on
reasonable
grounds.
In Warner v. Metropolitan
Police Commissioner [1969] 2 A.C. 256 at
p. 276, Lord Reid
said :
" A passage often quoted
from the judgment of the Privy Council
" in Bank of New
South Wales v. Piper [1897] AC 383, 389, 390 is
"
that ' the absence of mens rea really consists in an
honest and
"' reasonable belief entertained by
the accused of the existence of facts
"' which, if true,
would make the act charged against him innocent.''
(my italics)
(in turn
cited in connection with rape by Winneke C.J., in R. v.
Flannery
and Prendergast [1969] V.R. 31, 34).
18
In Devlin v. Armstrong
[1971] L.R. N.I. 13 the charge was of riot. The
defence was
that the accused held an honest and reasonable belief that the
police
were about to behave unlawfully. The Northern Irish Court of
Appeal,
presided over by Lord MacDermott L.C.J., assumed that the
accused
did honestly and reasonably so believe, but held that for a number
of
reasons it constituted no defence in the circumstances: it was
not
questioned that in other circumstances it might be the correct
criterion.
The Court treated the case in a number of respects as
analogous to
self-defence.
The common law seems to be the
same in the U.S.A.; see specifically
as regards rape U.S.
v. Short (1954) 4 U.S. C.M.A. 437, 16 C.M.R. 11.
Nor is the policy of the law
exemplified merely in the common law: it is
equally demonstrated
by Parliament—and recently—and in this very field
of
law. Section 1(1) of the Sexual Offences Act 1956 codifies the
common
law by enacting that " It is felony for a man to rape
a woman ". By
section 6 of the same Act:
" (1) It is an offence,
subject to the exceptions mentioned in this
" section, for a
man to have unlawful sexual intercourse with a girl
" not
under the age of thirteen but under the age of sixteen.
" (2) ...
" (3) A man is not guilty
of an offence under this section because he
" has unlawful
sexual intercourse with a girl under the age of sixteen.
" if
he is under the age of twenty-four and has not previously been
"
charged with a like offence, and he believes her to be of the age
of
" sixteen or over and has reasonable cause for the
belief," (my italics of
course).
It remains to consider why the
law requires, in such circumstances, that
the belief in a state of
affairs whereby the actus would not be reus should
be
held on reasonable grounds. One reason was given by Bridge J. in
the
Court of Appeal:
" The rationale of
requiring reasonable grounds for the mistaken
" belief must
lie in the law's consideration that a bald assertion of belief
"
for which the accused can indicate no reasonable ground is evidence
"
of insufficient substance to raise any issue requiring the jury's
"
consideration."
I agree; but I think there is
also another reason. The policy of the law
in this regard could
well derive from its concern to hold a fair balance
between victim
and accused. It would hardly seem just to fob off a victim
of a
savage assault with such comfort as he could derive from knowing
that
his injury was caused by a belief, however absurd, that he was about
to
attack the accused. A respectable woman who has been ravished
would
hardly feel that she was vindicated by being told that her
assailant must go
unpunished because he believed, quite
unreasonably, that she was consenting
to sexual intercourse with
him. The policy behind section 6 of the Sexual
Offences Act is
presumably that Parliament considered that a girl under
sixteen is
generally unlikely to be sufficiently mature to realise the
full
implications of sexual intercourse; so that her protection
demands that a
belief by a man under the age of twenty-four that
she herself was over
the age of sixteen should not only be an
honest but also a reasonable belief.
All the foregoing accords, I
trust and believe, with the passage in the
speech of my noble and
learned friend, Lord Diplock, in Sweet v. Parsley
[1969]
A.C. 132,164E-G which was cited by Bridge J.
I would therefore answer the
question certified for your Lordships'
consideration, Yes. But,
even did I consider that it should be answered
No, I would, for
the reasons given by my noble and learned friends, think
this a
suitable case to apply the proviso.
I would therefore dismiss the
appeal.
19
Lord Edmund-Davies
MY LORDS,
The appellants, McDonald,
McLarty and Parker were each convicted at
the Stafford Crown Court
on January 24, 1974, of raping Mrs. Daphne Ethel
Morgan. Each man
was also convicted of aiding and abetting the rapes
committed by
the other two accused. The fourth appellant, Morgan, who
was and
is the husband of Mrs. Morgan, was convicted of aiding and
abetting
the rapes committed by McDonald, McLarty and Parker.
By leave of the single judge,
all four men appealed against conviction.
On July 25th, 1974, the
consolidated appeals of McDonald, McLarty and
Parker were
dismissed and on October 14 that of Morgan also. The Court
of
Appeal (Criminal Division) certified that a point of law of general
public
importance was involved in their decision, and granted each
appellant leave
to appeal to this House, the point of law being
thus stated: Whether in rape
the defendant can properly be
convicted, notwithstanding that he in fact
believed that the woman
consented, if such belief was not based on reasonable
grounds. As
will presently appear, the direction of Mr. Justice Kenneth
Jones,
the trial judge, was to the effect that the proper answer to the
certified
question is in the affirmative, and the Court of Appeal
upheld that direction.
This House has now to adjudicate upon two
matters: (1) Was there a
misdirection? (2) If so, is this a
suitable case to apply the proviso to
section 2(1) of the Criminal
Appeal Act, 1968, on the ground that no
miscarriage of justice
resulted from such misdirection? If the proper answer
to question
(1) is "Yes", and that to question (2) "No", it
follows that
not only must the conviction of the principals in the
first degree be quashed,
but that all convictions for aiding and
abetting (including those of the
appellant Morgan) must also be
quashed.
In the Court of Appeal Bridge J.
described the facts of the case as
" somewhat bizarre".
They were indeed such as to create disgust and
indignation. But in
the course of his clear and careful summing-up Kenneth
Jones J.
stressed the necessity for a dispassionate approach by the jury
to
their task. At the outset he placed before them the central
issue of the trial
in these words:
" On the morning of the
15th August, 1973, the defendant Morgan,
" who is a Senior
N.C.O. in the Royal Air Force, took back the other
" three
defendants .... to his home where his wife and two young
"
children were asleep, and he then invited and encouraged those
three
" airmen to have sexual intercourse with his wife, each
in the presence
" of the others and in his presence, and when
they had finished he himself
" had intercourse with her.
" The prosecution say that
the three defendants, McDonald, McLarty
" and Parker raped
Mrs. Morgan and that Morgan himself aided and
" abetted that
crime. The Defence say quite the contrary, that Mrs.
" Morgan
fully consented to what had taken place and, indeed, took
"
pleasure in it.
" That really, very simply,
is the issue which you have to resolve."
What is under attack in these
consolidated appeals is the direction given
by the trial judge as
to how the jury were to approach this central issue of
consent vel
non, and, before examining the evidence, it is convenient to
have
in mind his exposition of what the Crown had to establish
before any one
of the accused could be convicted.
He first said:
" The crime of rape
consists in having unlawful sexual intercourse
" with a woman
without her consent and by force. By force. Those
" words
mean exactly what they say. It does not mean there has to be
"
a fight or blows have to be inflicted. It means that there has to
be
" some violence used against the woman to overbear her
will or that
" there has to be a threat of violence as a
result of which her will is
" overborne."
20
He continued:
" Further, the Prosecution
have to prove that each defendant intended
" to have sexual
intercourse with this woman without her consent Not
" merely
that he intended to have intercourse with her, but that he
"
intended to have intercourse without her consent. Therefore, if the
"
defendant believed or may have believed that Mrs. Morgan consented
"
to him having sexual intercourse with her, then there would be no
"
such intent in his mind and he would not be guilty of the offence
of
" rape, but such a belief must be honestly held by the
defendant hi the
" first place. He must really believe that.
And, secondly, his belief
" must be a reasonable belief; such
a belief as a reasonable man would
" entertain if he applied
his mind and thought about the matter. It is
" not enough for
a defendant to rely upon a belief, even though he
" honestly
held it, if it was completely fanciful, contrary to every indica-
"
tion which could be given which would carry some weight with a
"
reasonable man ....
" If you consider that she
consented, or may have consented to this
" intercourse, that
is an end of the case. Your verdicts would be one
" of not
guilty. But if you are satisfied, if you are sure tht she did not
"
consent, then you would have to turn to consider: Well, did the
"
particular defendant honestly and reasonably believe that she
"
consented? ....
" But if you are sure that
she did not consent, that must mean that
" you have rejected
the whole of the evidence of the defendants to the
"
contrary. You have listened to them all say she did consent, and
"
you have said to yourselves: That is a lie. You may consider—it
is
" a matter entirely for you—it is a desperate
defence to put forward,
" that, even although you have
rejected so much of their evidence that
" nevertheless you
should have some doubt as to whether they honestly
" and
reasonably believed that she was consenting."
So much for the judge's
directions. The strange evidence to which they
relate must now be
considered: Morgan was a Senior N.C.O. in the Royal
Air Force. He
was 37 years old, his wife 34, and they had been married
for about
13 years and had boys of 11 and 12. For some time husband
and wife
had been or poor terms, and she had engaged in two love affairs,
at
least one of them being (as Mrs. Morgan alleged) at her
husband's
instigation. Of the other three accused, one was nearly
20, the other two
were in their twenties, all three of them
serving in the Royal Air Force and
having arrived at the R.A.F.
Depot as Cosford on August 15, 1973. It is
common ground that
Morgan invited the other three accused, all complete
strangers to
him, that night to go back to his house and have intercourse
with
his wife and that as he drove them from Wolverhampton to his home
at
Cosford he supplied each of them with a contraceptive. The only
issue
between the various accused relating to this part of the case was
that
Morgan denied the assertion of the others that during the car
journey he
told them that his wife might put up a show of
struggling, but that this
would only be a charade stimulating her
sexual excitement, as in reality
she would welcome intercourse
with them. They claimed that, although
they were at first
incredulous, Morgan finally persuaded them that he was
serious and
that their behaviour thereafter was throughout based on their
belief
that Mrs. Morgan was indeed only play-acting. Certainly she
could
have done nothing more than she did to resist the attacks
made upon her,
and before this House counsel for the appellants
accepted that in fact
she never did consent to what transpired
from the moment the four men
reached Morgan's home. She was
awakened from sleep in a bedroom
which she shared with her 11 year
old son and her evidence was that all
four accused in part dragged
and in part carried her into another room
which contained a double
bed. She claimed that she struggled violently
and shouted "
Police! " several times until a hand was placed over her
mouth,
that both children were awakened and that thereafter each
of the four
accused had sexual intercourse with her. It was
established that, as soon
as the three strangers had departed and
Morgan had gone to bed, Mrs.
21
Morgan drove off to Cosford
Hospital and complained of having been
raped, her case being that
she did all she could to resist but that she was
throughout held
down on the bed by three men while the fourth had inter-
course
with her. She was amply corroborated by the oral and
written
statements of all four accused which amounted to complete
confessions of
multiple rapes. But at their trial all challenged
their police statements
and asserted that Mrs. Morgan was
throughout a willing party. Morgan,
indeed, denied that his wife
struggled and asserted that she evinced pleasure
in the treatment
to which she was being subjected. McDonald testified
that she
masturbated him while one of his colleagues was having
intercourse
with her—this in contrast to his statement to
the police that she had dug
her nails into his penis so as to
prevent his advances. McLarty claimed
both in his police statement
and in evidence that Mrs. Morgan engaged
herself in fellatio
with him while Parker was having intercourse, while
Parker
himself testified that she had caressed his private parts, moved
her
body with his, and that" Everything happened with her
full approval".
The reason why it has seemed
necessary to go into this disagreeable
evidence in some detail
will appear during the concluding stage of this
judgment. I now
turn to consider the law.
The basic submission of the
appellants both below and before this House
was that the Jury had
been wrongly directed that (to quote Bridge J.):
"... the
Crown can establish the element of mens rea necessary
"
to support a conviction for rape if they satisfy the jury that a
"
defendant's belief in consent by the prosecutrix, though honestly
"
held, was not based on reasonable grounds. The correct view in law,
"
it is urged, is that the Crown must negative honest belief in
consent,
" and that the question whether or not there were
reasonable grounds
" for such a belief is no more than a
factor (albeit an important factor)
" in the evidence to be
considered by the jury in deciding whether the
" belief was
honestly held ".
Pointing out that the question
raised by the submission is not directly deci-
ded by any English
authority, Bridge J. embarked on a helpful survey of the
reported
cases, both in this country and in Australia, and then restated
what
he described as the relevant principles in the following
propositions:
"1. In all crimes the Crown
has both the evidential and the probative
" burden of showing
that the accused did the prohibited act, and where
" that
act, according to the definition of the offence, is an act of
volition,
" of showing that the act of the accused was
voluntary. An obvious
" example ... is common assault.
" 2. Wherever the
definition of a crime includes as one of its express
"
ingredients a specific menial element, both the evidential and the
proba-
" live burden lie upon the Crown with respect to that
element. Typical
" examples are dishonesty in theft and
knowledge or belief in handling.
" In seeking to rebut the
Crown's case against him in reference to his
" state of mind
the accused may and frequently does assert his mistaken
"
belief in non-existent facts. Of course it is right that in this
context the
" question whether there were reasonable grounds
for the belief is only
" a factor for the jury's
consideration in deciding whether the Crown has
" established
the necessary mental element of the crime. This is because
"
the issue is already before the jury and no evidential burden rests
"
upon the accused.
' 3. But where the definition of
the crime includes no specific mental
" element beyond the
intention to do the prohibited act, the accused may
" show
that though he did the prohibited act intentionally he lacked the
"
mens rea because he mistakenly, but honestly and reasonably,
believed
" facts which, if true, would have made his act
innocent. Here the evi-
" dential burden lies upon the
accused but once evidence sufficient to
" raise the issue is
before the jury the probative burden lies upon the
" Crown to
negative the mistaken belief. The rationale of requiring rea-
"
sonable grounds for the mistaken belief must lie in the law's con-
"
sideration that a bald assertion of belief for which the accused can
22
" indicate no reasonable
ground is evidence of insufficient substance to
" raise any
issue requiring the jury's consideration ..."
The parties to these appeals are
at one in regarding the offence of rape as
falling within the
third of Bridge J's. propositions, but they differ widely in
relation
to what is involved in " the intention to do the prohibited
act".
Before this House, learned prosecuting counsel
submitted that rape consists
simply in having sexual intercourse
with a woman who does not in fact
consent, and that more than this
the Crown need not establish in order to
secure a conviction. This
simplistic approach is reminiscent of the minority
judgments in
Reg. v. Tolson (1889) 23 QBD 168, of which more
hereafter,
that a man commits bigamy if he goes through a marriage
ceremony while his
wife is alive, even though he honestly and
reasonably believes she is dead.
Indeed, it would mean that rape
involved no mental element save the inten-
tion to have
intercourse; that the trial judge in the present case was
com-
pletely wrong in thinking that it does; that the Court of
Appeal (Criminal
Division) should have dismissed the appeals out
of hand on the simple
ground that any misdirection as to the
requirement of any particular mental
element was an irrelevance
which could have operated only in favour of the
accused; and, in
short, that there never was a point of law to certify as fit
for
consideration by this House.
It was rightly submitted for the
appellants that such an approach involves a
fundamentally wrong
conception of what constitutes rape. The offence lacks
statutory
definition, the Sexual Offences Act, 1956, section 1(1) merely
declar-
ing it an offence for a man to rape a woman. East defined
it as " the un-
" lawful carnal knowledge of a woman by
force and against her will " (1 P.C.
434). Hawkins (1 P.C.
122) used similar words, and the practice for centuries
has been
to charge a violent crime. Thus, in the 7th edition of
Archbold
(1838), p. 142, the. particulars of the indictment there
set out are that the
accused " violently and feloniously did
make an assault, and her the said
" A.N., then and there,
violently and against her will, feloniously did ravish
" and
carnally did know ". And the appended notes on evidence
include
this passage :
" It must be proved that
the rape was committed on A.N. against her
" will, and which
of course implies violence. If, however, she yielded
"
through fear of death or duress, it is rape ".
The current (38th) edition,
paragraph 2871, states that:
" Rape consists in having
unlawful sexual intercourse with a woman
" without her
consent by force, fear or fraud ".
These variants all indicate that
knowledge by the accused of the woman's
unwillingness to have
intercourse is essential to the crime of rape. No man,
one would
have thought, could be a rapist per incuriam. And it will
be
recalled that Kenneth Jones, J. said:
"... the prosecution have
to prove that each defendant intended to
" have sexual
intercourse with this woman without her consent. Not
" merely
that he intended to have intercourse with her, but that he inten-
"
ded to have intercourse without her consent".
The Court of Appeal adopted this
direction without qualification. And,
with respect, so do I, save
that I would add that the man would have
the necessary mens rea
if he set about having intercourse either against
the
woman's will or recklessly, without caring whether or
not she was a consent-
ing party.
The crux of these appeals is to
be found in the following words of
Bridge J.:
" However the crime of rape
be defined, the Crown clearly has the
" evidential burden of
showing the act of intercourse, and absence of
" consent. The
second element is, of course, something more than the
"
subjective unwillingness of the prosecutrix. The circumstances in
"
which the act of intercourse takes place must be such that absence
"
of consent is objectively demonstrated. . . .
23
" Has the Crown, beyond
these two elements, the evidential burden
" of showing any
and if so what degree of subjective appreciation by
" the
accused of that which, ex hypothesi, has been objectively
demon-
" strated, viz.: absence of consent? No accepted
definition of the
" offence suggests the need to prove such a
subjective mental element.
" Dicta to the effect that
the mens rea of rape is an intention to have
"
intercourse without consent really carry the matter no further.
They
" tell us that the act of intercourse must be
intentional, which by its
" nature it inevitably is, but
throw no light on the state of mind required
" to be shown
quoad absence of consent. The correct view, we think,
"
is that on proof of the fact of absence of consent from
circumstances
" which in the nature of the case must have
come to the notice of the
" defendant he may be presumed to
have appreciated their significance,
" and it is this
presumption which casts upon the defendant the
" evidential
burden of showing an honest and reasonable belief in
"
consent before any issue as to his state of mind can arise for the
"
jury's consideration."
In the absence of contrary
evidence, the accused may be presumed to
have appreciated the
significance of circumstances which must have come
to his notice.
But it does not follow inexorably that he in fact did so, and
Reg.
v. Horton (1871) 11 Cox C.C. 670, a bigamy case, is but
one example
of failure in this respect. The presumption is not
conclusive and, unless
it emerges that there is a weight of
authority compelling a different con-
clusion, I should have
considered that the honest belief of an accused
charged with rape
that the woman was willing, being wholly inconsistent
with the
criminal intention necessary to constitute the crime, would call
for
his acquittal. The more unreasonable such a belief in the
proved
circumstances of the case, the slimmer the chances of the
jury's thinking
that it was ever entertained. Nevertheless, if,
after hearing all the evidence
(and, in most cases, particularly
that of the accused himself), they did not
reject out of hand the
plea of honest belief, even though they were alive
to its
unreasonableness, I should have thought that they were duty bound
to
acquit. Honest belief, however foolishly formed, that the woman
was
willing seems to me incompatible with an intention to rape
her. Here, as
in any other crime where knowledge is an essential
ingredient, this should
connote actual knowledge and not merely
what the accused ought to have
known. As Smith &
Hogan put it (3rd Ed., 150),
" It is now established by
section 8 of the Criminal Justice Act, 1967,
" that a failure
to foresee the material results of one's conduct is a
"
defence whether reasonable or not. It is odd that a different rule
"
should prevail with respect to circumstances, the more particularly
"
since foresight of results frequently depends on knowledge of
circum-
" stances. . . . Such a distinction seems
unjustifiable. Its existence
" points in favour of a rule
allowing as a defence any honest mistake
" which negatives
mens rea, whether reasonable or not ".
Does the law, then, compel one
to say that a man should be convicted
as a rapist though the jury
remain unconvinced that rape was in his mind?
The direction given
by Channell B., in Reg. v. Wright (1864) 4 F. & F.
967
seems to indicate that he would have answered that question in
the negative.
On charges of rape and of assault with intent to
commit rape, he directed
the jury that—
"... even to convict of an
assault with intent to commit a rape,
" and a multi
fortiori, in order to convict of a rape, they must be
"
satisfied that there was an intention to commit the act,
notwithstanding
" any resistance on the part of the
prosecutrix. . . . For it was of
" the essence of the offence
that it should be committed without the
" will and against
the consent of the prosecutrix. . . . Both charges
"
required an intent on his part to commit the act by force against
her
" will."
There are directions and obiter
dicta in many oilier English cases to a like
effect Thus in
Tolson [1889] 23 QBD 168, the well-known case of
alleged
bigamy, Stephen J. said (at p. 185):
24
"' Mens rea' means
... in the case of rape, an intention to have
" forcible
connection with a woman without her consent."
I therefore find it difficult to
follow how a belief ('honest' is a
superfluous, but convenient,
adjective) that the woman is consenting can exist
alongside an
intention to rape her. Much stress was laid in the Court of
Appeal
and in this House on certain Australian decisions bearing on
the
question whether such belief has also to be based on
reasonable grounds.
Relating as they do to charges of rape, I
accordingly turn to them, before
considering English cases
relating to the topic of mistaken belief as affecting
mens rea
over a wider field.
In R. v. Hornbuckle
(1945) V.L.R. 281, where the court was considering
the plea of
drunkenness in answer to a rape charge, Lowe J. said (at p. 287):
" To hold that knowledge
that the act of intercourse was occurring
" sufficiently
establishes the intent, [to have intercourse without consent]
"
because the man who knows he is committing the act must intend it,
"
even if prima facie warranted, seems to us to fail to
distinguish
" ' intent to have intercourse' from ' intent to
have intercourse without
" ' consent of the female ' ".
Unfortunately, however, that
case is not directed to the point of law giving
rise to this
appeal.
In R. v. Buries (1947)
V.L.R. 392, where the defence to a charge of rape
was that the
accused knew he had the woman's consent because both by
word
and by deed she plainly told him so, a defence which the jury
clearly
disbelieved, the point raised on the appeal against
conviction was whether
the jury should have been directed as to
the legal position arising if the
accused mistakenly believed
that the woman was consenting, a version
which he never advanced
at the trial. Dismissing the appeal, Gavan Duffy, J.,
after a wide
survey of the authorities said: (p. 403)
"... when once there is
some evidence of belief and reasonable ground
" for it, the
jury should be told that a guilty mind is a necessary
"
constituent of the crime and that unless they are satisfied beyond
"
reasonable doubt, on a consideration of all the evidence, that that
"
constituent along with the others has been proved, they should
"
acquit."
(p. 404):
"... the jury should only
consider the possibility of the accused having
" acted on a
wrong belief as to the facts when there is some evidence
"
that he did honestly believe at least that the necessary facts
existed."
In Reg. v. Daly (1968)
V.L.R. 257 the nearest one gets to support for the
present
appellants is the following passage from the judgment of the
court
given by Smith J. (at p. 259):
" What the learned trial
judge did in the present case was to omit
" from the
definition of rape that he gave to the jury all reference to
"
the element of intention ... but to tell the jury that it was a
defence
" to the charge of rape if the accused honestly
believed on reasonable
" grounds that the girl was
consenting. He also told them that the
" Crown had to satisfy
them beyond reasonable doubt that the accused
" did not have
such a belief. Even if it were proper to discuss the
" mental
aspect of a charge of rape in terms of a defence of reasonable
"
mistake of fact, this direction as to onus would be erroneous."
In R. v. Flannery and
Prendergast 1969 V.R. 31, which purported to
apply Hornbuckle
(ante), the trial judge had directed that:
" It is a defence in a
charge of rape if a person honestly believed
" on reasonable
grounds that the girl in fact was a consenting party.
" That
involves three things, gentlemen, an honest belief, that means a
"
real genuine bona fide belief based upon reasonable grounds,
that is
" to say, grounds that commend themselves to
reasonable men as being
" reasonable that the girl in fact
was consenting. . . ."
His further direction that it
was for the accused to establish on the balance
of probability
that he entertained such a belief was, not surprisingly,
criticised
by the Supreme Court of Victoria, Winneke C.J. saying
(at p. 33):
25
" Where there is absence of
consent an accused's belief, albeit
" mistaken in fact, that
the woman was consenting to the act of
" intercourse
necessarily relates to ... the element of intention involved
"
in the crime. It is impossible to dissociate that intention from a
"
genuine belief in the mind of the accused, even though mistaken in
"
fact, that such consent existed. The existence of such a belief
"
necessarily negatives an awareness that the woman was not
consenting,
" or a realization that she might not be and a
determination to have
" intercourse with her whether she was
consenting or not. It would,
" accordingly, negative an
intention to have intercourse without consent
" inasmuch as
the existence of such a belief would be inconsistent
" with
such an intention:"
So far, so good, from the
present appellants' point of view. But the Chief
Justice
continued:
" In a case where the
evidence at the trial does raise [an issue of
" honest
belief], its relevance is to the ingredient of the crime on which
"
the burden of proof rests on the Crown. ... It is apposite to quote
a
" statement cited by Lord Reid in Warner v. Metropolitan
Commis-
" sioner, [1968] 2 All E.R. 356, at p. 364: 'The
absence of mens rea
"' really consists in an honest
and reasonable belief entertained by the
"' accused of the
existence of facts which, if true, would make the act
" '
charged against him innocent' ".
It therefore seems that the
Supreme Court's criticism was confined to the
onus of proving the
absence of such a belief having been wrongly placed
by the trial
judges on the accused, but that they concurred in holding that,
in
the last analysis, the question was whether the Crown had
established the
absence of a reasonable belief that the
woman was consenting.
That case was followed by the
Court of Criminal Appeal of New South
Wales in Reg. v.
Sperotto and Salvietti [1970] 1 N.S.W.R. 502, where
Herron
C.J. said (at p. 504):
" Although the fact of the
act of intercourse may be admitted by
" the accused or proved
beyond reasonable doubt to the satisfaction of
" the jury,
the accused may negative any intention on his part to have
"
intercourse with the woman regardless of her consent if he holds an
"
honest belief on reasonable grounds in the existence of
circumstances
" which, if true, would make his act of
intercourse with the woman an
" innocent one (Warner v.
Metropolitan Police Commissioner, per Lord
" Reid).
This involves these three concepts, firstly, that he in fact
"
held the belief that the woman was consenting to the act of
intercourse,
" secondly, that he was mistaken in that belief
and, thirdly, that he
" can point objectively to
circumstances which provided him with
" reasonable grounds
for his mistake.
" It then becomes necesary
for the Crown as part of the ultimate
" onus which rests upon
it to negative the existence of such belief, and
" this
beyond reasonable doubt. This the Crown may do by reference
"
to all the material adduced at the trial which tends to show that
the
" belief asserted by the accused was not genuinely
held by him or that
" the grounds upon which he relies
for the foundation of his belief
" are, when examined in the
light of all the circumstances, not a
" reasonable basis for
the mistake which he claims to have made."
Bridge J. regarded the foregoing
cases of Hornbuckle, Daly and Flannery
and Prendergast
as supporting the appellants' submission that the
certified
question calls for a negative answer, but in my
respectful view this is not
clear. However that may be, Bridge J.
was assuredly right in his citation
of another New South Wales
decision as supporting the Crown's contention.
I refer to Reg.
v. Flaherty and Others (1968) 89 W.N. (Pt. 1) (N.S.W.)
141.
where Asprey J. said (at p. 148):
"... a long line of
authority establishes, at any rate so far as I am
"
concerned, that the defence of mistake requires that the accused
"
holds both an honest and reasonable belief in the existence of a
state
" of facts which, if true, would make the act charged
innocent."
26
But to speak of "the
defence of mistake" is, with respect, to use lax
language. In
the context of the present case, it constitutes a challenge
that
the mens rea necessary for rape existed, and it has a
defensive connotation
only in the sense that, if a prima jade
case of rape is established, it is for
the accused, either
through cross-examination of the Crown witnesses, or
by his own
evidence, or by a combination of the two, to raise an issue
fit to
go to the jury as to his belief in the woman's unwillingness.
No decision was cited to us
directly supporting the submission of appellants'
counsel that
honest belief, without more, is sufficient. The old case of
Reg.
v. Flattery (1877) 13 Cox C.C. 388 certainly affords it no
support.
It is true that Denman, J. there said (p. 392):
" There is one case where a
woman does not consent to the act of
" connection and yet the
man may not be guilty of rape, that is where
" the resistance
is so slight and her behaviour such that the man may
" bona
fide believe that she is consenting;".
But the reference to the woman's
conduct must, I think, be taken to indicate
that the man was
thereby both honestly and reasonably misled into thinking
that she
was a willing party to the act of intercourse.
In this country a long line of
authorities and numerous dicta indicate
that, when an accused
challenges that he had the necessary mens rea
involved in
the offence charged by asserting that he committed the actus
reus
under a mistake of fact, his belief must have been based
on reasonable
grounds. Of these cases, the best known are those
arising from charges
of bigamy. It is true that in Reg. v.
Turner (1862) 9 Cox C.C. 145,
Martin B. directed the jury
simply to consider whether the accused woman
" had an honest
belief that her first husband was dead ", and that
although
Cleasby, B. purported in Reg. v. Horton (ante)
to be following Turner,
he in fact made a vital addition by
twice directing the jury that:
" You must find the
prisoner guilty, unless you think that he had fair
" and
reasonable grounds for believing, and did honestly believe, that
"
his first wife was dead."
But Reg. v. Tolson
(ante) established the correctness of the latter direction
and
it has been applied in countless bigamy cases ever since; for
example,
in Reg. v. King [1964] 1 Q.B. 285, where
Lord Parker, C.J. said (at p. 293):
" Honest belief is not
enough; there must be an honest belief on
" reasonable
grounds".
Tolson had earlier been
followed in Australia in Thomas v. The King (1937)
59
C.L.R. 279 and both were in their turn followed here in Reg. v.
Gould
[1968] 2 QB 65 where Diplock L.J., as he then was,
pointed out (at p. 76)
that the offence of bigamy:
"... is not an absolute one
and that honest and reasonable belief in
" a fact affecting
the matrimonial status of the defendant which, if
" true,
would make his second marriage lawful and innocent can
"
constitute a defence . . . ."
Such an approach has been
criticised. In America, for example, Professor
Jerome Hall
observed (1957 33 Indiana Law Journal, 5),
" Anglo-American law
restricts the scope of ignorantia facti in ways
"
which constitute serious limitations ... An honest mistake is not
"
sufficient. ' The apprehension of danger must be bona fide and
"
'reasonable' (Hill v. State 194 Ala. 11) .... The plain
conse-
" quences of this application of objective liability
to ignorantia facti is
" that persons who commit harms
solely because they are mistaken
" regarding the material
facts are nonetheless criminally liable, i.e.
"
despite the complete lack of criminal intent .... (p. 11) The
"
elimination of ' reasonableness' as a substantive restriction of
the
" doctrine of ignorantia facti would clarify the
public mind regarding
" the nature of criminal conduct. It
would facilitate analysis of the
" criminal law and stimulate
a sounder administration of it."
In this country, Russell
(12th Ed., Vol. 1, p. 76), in the course of a discussion
of
mens rea, refers to
27
" the ancient doctrine that
the mistake must be reasonable "
and adds:
" It is hardly necessary to
point out that such a doctrine, based purely
" on an
objective test, is out of keeping with the modern principle that
"
the mens rea required by the common law is a subjective
element."
And Professor Glanville Williams
has commented (Criminal Law, 2nd Ed.
p. 177):
"... it is not true to say
that the general run of crimes can be com-
" mitted by
inattention. ... It is submitted that this is not the law.
"
In the absence of words in the statute dispensing with proof
of mens
" rea, it should be held that the crime
can be committed only intention-
" ally or recklessly. If a
person charged with bigamy believed that he
" was legally
free to marry again, it cannot be said that the crime was
"
committed either intentionally or recklessly, and the question
whether
" the belief was unreasonable is irrelevant."
And, after a discussion of
reported cases, he concluded (p. 204):
" Even if, as a result of
decisions like this, it must now be conceded
" that
unreasonable mistake is no defence in bigamy, this only means
"
that bigamy can be committed negligently. It does not prove that
"
other crimes can be committed negligently."
For myself, I am greatly
impressed by these forceful passages and others
of a like kind to
be found in the text books of many modern writers on the
criminal
law. They give rise to two questions:
Are there any grounds for
differentiating between bigamy and
rape in this matter of
mistaken belief? I can think of none, and,
although counsel
for the appellants understandably stressed that in
Tolson
Wills, J. said (at p. 180) that " there can be no crime
without
" a tainted mind ", the rest of his judgment
relates to a bona fide belief
on reasonable grounds held
at the time of the marriage ceremony that
the spouse was dead.
Counsel was unable to indicate any reason why
the two offences
should be differently treated, and it should not be
overlooked
that the definition of rape given by that master of the
criminal
law, Stephen J., which I earlier quoted was given in the course
of
his majority judgment in Tolson's case.
Are there any grounds for
thinking that the established law in
bigamy is out of step with
other aspects of criminal jurisprudence and
accordingly ought not
to be applied to other cases and, in particular, is
inapplicable
to the present case?
As lo that, while Tolson
dealt with a statutory offence, the majority who
favoured an
acquittal clearly did not consider that in so concluding they
were
doing anything more than applying established and general
principles
of the criminal law. Thus, Cave, J. said (at p. 181):
" At common law an honest
and reasonable belief in the existence
" of circumstances,
which, if true, would make the act for which a
" prisoner is
indicted an innocent act has always been held to be a
" good
defence. This doctrine is embodied in the somewhat uncouth
"
maxim, ' actus non facit reum, nisi mens sit rea '. Honest and
reason-
" able mistake stands in fact on the same footing as
absence of the
" reasoning faculty, as in infancy, or
perversion of that faculty, as in
" lunacy. Instances of the
existence of this common law doctrine will
" readily occur to
the mind ".
Again, Stephen, J. said (at p.
188):
" Apart, indeed, from the
present case, I think it may be laid down as
" a general rule
that an alleged offender is deemed to have acted under
" that
state of facts which he in good faith and on reasonable grounds
"
believed to exist when he did the act alleged to be an offence.
" I am unable to suggest
any real exception to this rule, nor has one
" ever been
suggested to me."
A little later (p. 190), citing
the dissenting judgment of Lord Esher, then
Brett, J. in Reg.
v. Prince (1875) L.R. 2 C.C.R. 154, Stephen, J.
commented:
28
" His judgment established
at much length, and as it appears to me,
" unanswerably, the
principle above explained, which he states as fol-
" lows: '
That a mistake of facts in reasonable grounds, to the extent
"
' that, if the facts were as believed, the acts of the prisoner
would
" ' make him guilty of no offence at all, is an excuse,
and that such an
" ' excuse is implied in every criminal
charge and every criminal enact-
" ' ment in England '."
Finally, having declared (p.
191) that,
" The general principle
is clearly in favour of the prisoners,"
Stephen, J. proceeded to
consider
" how does the intention of
the legislature appear to have been against
" them,"
and
concluded that in reality it was not.
To my way of thinking, such
weighty observations as these make it im-
possible to put bigamy
into a special category or to regard Tolson as turning
merely
upon the wording of a particular statute. The majority view
was
founded on common law principles of general applicability in
the field of
criminal law for many years and, as Smith &
Hogan put it (3rd Ed., 148, 149),
" The majority all relied
on the maxim, actus non facit reum nisi mens
" sit
rea, yet all emphasised that the defence was allowed because of
(the
" accused's) belief in good faith and on reasonable
grounds that her hus-
" band was dead ".
In Bank of New South Wales v.
Piper [1897] AC 383 (P.C.) which involved
the
interpretation of a statute making it an offence to do certain acts "
with
" a view to defraud ", Sir Richard Couch said (at
p. 389) :
"... the absence of mens
rea really consists in an honest and reason-
" able
belief entertained by the accused of the existence of facts which,
if
" true, would make the act charged against him innocent ".
But as Professor Glanville
Williams has pointed out (ibid., p. 203):
" The question of
reasonableness was not in issue on the facts of the
" case."
He contrasts this with the
observation of Lord Atkin in Thorne v. Motor
Trade
Association [1937] A.C. 797, at p. 809, that:
"... I do not think that
doubt should exist upon a well established
" proposition in
criminal law that normally a geuine belief in the exist-
"
ence of facts as apart from law, which if they existed would
constitute
" a defence, is itself a sufficient defence."
But that had reference to the
interpretation of section 29(1) of the Larceny
Act, 1916, relating
to demanding with menaces "and without reasonable or
"
probable cause ". The case therefore belongs to Class 2 of
Bridge J's. cate-
gories, just as does Wilson v. Inyang
[1951] 2 K.B. 799, referred to in his
judgment, which turned
on the ingredients of the statutory charge of
" wilfully and
falsely using " the title of " physician ".
The law requires reasonable
grounds for believing that physical action in
self-defence or the
defence of another is called for: Reg. v. Rose (1884)
15
Cox C.C. 540, Owens v. H.M. Advocate 1946 JC 119, Reg. v. Chisam (1963)
47 Cr. App. R. 130, Reg.
v. Fennell [1971] 1 Q.B. 428.
Finally, in relation to the
critical comments of Professor Glanville Williams
that crimes
requiring mens rea ought not to be capable of being committed
by
inattention, it is important to recall that in Sweet v.
Parsley [1970] AC 132,
Lord Diplock said in this House
(at p. 163):
"... the importance of the
actual decision of the nine judges who
" constituted the
majority in Reg. v. Tolson . . . was that it laid down
as
" a general principle of construction of any enactment,
which creates a
" criminal offence, that, even where the
words used to describe the
" prohibited conduct would not in
any other context connote the
" necessity for any particular
mental element, they are nevertheless to
" be read as subject
to the implication that a necessary element in the
" offence
is the absence of a belief, held honestly and upon reasonable
29
" grounds, in the existence
of facts which, if true, would make the act
" innocent. As
was said by the Privy Council in Bank of New South
" Wales
v. Piper, the absence of mens rea really consists
in such a
" belief by the accused."
(P. 164):
" It has been objected that
the requirement laid down in Reg. v.
" Tolson and
the Bank of New South Wales v. Piper that the
mistaken
" belief should be based on reasonable grounds
introduces an objective
" mental element into mens rea.
This may be so, but there is nothing
" novel in this. The
test of the mental element of provocation which
"
distinguishes manslaughter from murder has always been at common
"
law and now is by statute the objective one of the way in which a
"
reasonable man would react to provocation. There is nothing
"
unreasonable in requiring a citizen to take reasonable care to
ascertain
" the facts relevant to his avoiding doing a
prohibited act."
These words express the general
approach of the criminal law adopted
over a wide spectrum, by
courts applying the common law both here and
overseas, approved of
to the extent already indicated by this House and by
courts of
inferior jurisdiction, and in respect of a variety of offences.
What
Professor Glanville Williams has described as " the
hoary error that a
" mistake to afford a defence to a
criminal charge must be reasonable "
(14 M.L.R. 485) is not
only old but widely accepted. I indicated at an
early stage the
approach which I should have been inclined to adopt in
relation to
the direction on mens rea given in the present case had I
felt
free to do so. It is, of course, true to say that there is no
direct decision
of this House which compels my Lords now to uphold
that direction, which
has been so vigorously attacked by
appellants' counsel. That being so,
Professor J. C. Smith has
invited us (1975 Cr.L.R. 42) to hold that it was
a clear
misdirection. In support, he cited the recent Court of
Appeal
decision in Smith (D.R.) [1974] 1 All E.R. 632,
where a man charged under
section 1(1) of the Criminal Damage Act,
1971, with damaging another's
property without lawful excuse
pleaded that he thought it was his own.
The Crown urged that, in
order to establish " lawful excuse " as a defence,
it
must be shown that the defendant honestly but mistakenly believed
on
reasonable grounds that the facts were such that, had they
existed, his
conduct would have been lawful. But, in giving the
judgment of the court
allowing the appeal, James, L.J. stressed
that the statutory offence under
Section 1 relates to " A
person who without lawful excuse destroys or
" damages any
property belonging to another ", and added (at p. 636):
" Applying the ordinary
principles of mens rea, the intention and
"
recklessness and the absence of lawful excuse required to
constitute
" the offence have reference to property belonging
to another. It follows
" that in our judgment no offence is
committed under this section if a
" person destroys or causes
damage to property belonging to another
" if he does so in
the honest though mistaken belief that the property
" is his
own, and provided that the belief is honestly held it is irrelevant
"
to consider whether or not it is a justifiable belief ".
It is, however, not without
significance that, in relation to another section
of the Act
(Section 5), which afforded a defence if at the material time
the
accused believed that the person entitled to consent to the
destruction or
damage of the property in question had consented,
it was expressly provided
that:
" For the purposes of this
section it is immaterial whether a belief
" is justified or
not if it is honestly held ".
That exculpatory provision had
no application to the defence relied upon in
the case,
namely, that the accused believed that the property he had
damaged
was his own, a defence which therefore had to be judged in
accordance
with general principles. As to these. Professor Smith
commented (ibid.)
that :
" The ordinary principles
of mens rea should certainly be no less
" applicable
to the common law offence of rape than to the statutory
"
offence of criminal damage ".
30
Smith (D.R.) was a
special case and at some future date the question
involved in it
may have to be reconsidered. Be that as it may, had I felt
free to
do so I would have acceded to the invitation extended by
Professor
Smith to this House that we
" should decide that a
mistake of a relevant fact is a defence if the
mistake was honest
and genuine, even if it was also unreasonable".
But regard must be had to the
uniformity of approach over a wide area and
for a long
time—Tolson, it should be remembered, was decided
nearly
ninety years ago. Paying such regard, the conclusion I have
come to is
that the necessary course is to uphold, as being in
accordance with
established law, the direction given in this case
by the learned trial judge as
to the necessity for the mistake of
fact urged to be based on reasonable
grounds. The approach which I
should have preferred must, I think,
wait until the legislature
reforms this part of the law, just as it did in
relation to the
former presumption of intending the reasonable consequence
of
one's actions by section 8 of the Criminal Justice Act 1967.
The
proponents of such reform will doubtless have regard to the
observations
of Lord Reid in Sweet v. Parsley (ante, at p.
150 B-F). On the other hand,
those who oppose the notion that
honest belief should per se suffice, on the
ground that it
facilitates the raising of bogus defences, should bear in mind
the
observations of Dixon J. in Thomas v. The King (1937)
59 C.L.R. 279,
at 309 cited with approval by Lord Reid in Warner
v. Metropolitan Police
Commissioner [1969] 2 A.C. at p.
274. But, the law being as it now is
and for a long time has been,
I find myself obliged to say that the certified
point of law
should be answered in the affirmative.
I should, however, make it clear
that, even had I felt free to hold that
there had been "a
misdirection, I would have been for applying the proviso
to
section 2(1) of the Criminal Appeal Act, 1968. The evidence of
the
accused as to the conduct of Mrs. Morgan was to the effect
that she was
not merely submissive to their lust but manifested
her enthusiastic
participation by acts of depravity even while
another of their company was
in the act of having intercourse with
her. Had she in fact behaved in that
way, not only would the
accused have been justified in forming the belief
that she was a
consenting party to intercourse, but they would have
been
unreasonable had they failed to form it. Accordingly,
had the jury
entertained any doubt regarding the truth of their
belated allegations of
such depraved conduct, they must surely
have acquitted all the accused.
The verdicts they returned can, I
think, be interpreted only as an outright
rejection of such
allegations, and it was accepted before this House that
Mrs.
Morgan was not in fact a consenting party. I cannot think
that
different verdicts would have been returned had the jury been
directed that
they should acquit if they felt that there was a
doubt as to whether the
accused honestly (even though
unreasonably) thought that she was.
In my judgment, in the light of
all the evidence in this extraordinary
case, no reasonable jury
could have failed to convict all four accused even
had they been
directed as counsel for the appellants urges they
should.
Accordingly, even had I acceded to the submission that
there was a
misdirection, I should have held that no miscarriage
of justice resulted
in respect of any of the accused. I would
therefore still have said, as I now
do, that the appeals of all
four should be dismissed.
Lord Fraser of Tullybelton
MY LORDS,
The answer to the general
question raised in this case depends, in my
opinion, on the nature
of the mens rea or mental element in the definition
of the
crime of rape. Most offences, whether at common law or under
statute,
include some mental element, but the description of the
offence
normally refers only to the prohibited act, leaving the
mental element to be
implied. Thus, the definition of rape in
East's Pleas of the Crown p. 434
is as follows: —
31
" Rape is the unlawful
carnal knowledge of a woman by force and
" against her will."
The nature of the mental element
differs in different offences, as was explained
by Stephen J. in
the Queen v. Tolson (1889) 23 QBD 168 at p. 185, and
at
p. 187 he said this: —
" The full definition of
every crime contains expressly or by implication
" a
proposition as to a state of mind. Therefore, if the mental element
"
of any conduct alleged to be a crime is proved to have been absent
"
in any given case, the crime so defined is not committed; or,
again,
" if a crime is fully defined, nothing amounts to that
crime which does
" not satisfy that definition."
That passage was quoted in Sweet
v. Parsley [1970] AC 132 at 162D by
Lord Diplock who
went on to say: —
" Where the crime consists
of doing an act which is prohibited by
" statute the
proposition as to the state of mind of the doer which is
"
contained in the full definition of the crime must be ascertained
"
from the words and subject-matter of the statute."
Rape being a crime at common
law, the proposition as to the state of mind
of the doer which is
contained in the full definition has to be collected
from such
judicial dicta or other authoritative statements of law as
are
available.
All the definitions of rape
quoted to us which made any reference to the
state of mind
required of the rapist included a statement to the effect that: —
" One of the elements of
the crime of rape is an intention on the part
" of an accused
person to have intercourse without consent."
I take that quotation from R.
v. Flannery and Prendergast [1969] V.R.
31 at 32;
decided by the full Court in Victoria. Statements to similar
effect
are to be found in R. v. Daley [1968] V.R. 257, R.
v. Buries [1947]
V.L.R. 392 and R. v. Hornbuckle
[1945] V.L.R. 281 and R. v. Sperotto [1970]
1
N.S.W.R. 502. In England there are statements to the same effect
in
Tolson, supra, by Stephens J. at p. 185, and in R. v.
Wright (1866) 4 F
and F 967 Baron Channell said that there
must be " an intention to commit
" the act,
notwithstanding any resistance on the part of the prosecutrix."
In the present case, the learned
judge's direction to the jury about the
mental element in the
crime fell into two parts. The first part was exactly
in
accordance with the cases to which I have referred. I need not
quote
the direction again in full but I would particularly refer
to one sentence where
the learned judge emphasised that the
prosecution must prove " not merely
" that [the
defendant] intended to have intercourse with [the woman] but
"
that he intended to have intercourse without her consent." He
continued,
with what was in my opinion complete logic, "
Therefore, if the defendant
" believed or may have believed
that [the woman] consented to him having
" sexual intercourse
with her, then there would be no such intent in his
" mind
and he would not be guilty of the offence of rape, but such a
belief
" must be honestly held by the defendant . . .".
Strictly speaking, I do
not think that a belief, if held at all,
can be held otherwise than honestly,
but I read that last phrase
as a warning to the jury to consider carefully
whether the
evidence of the defendant's belief was honest. So far, the
direction
was unexceptionable. The difficulty arises in the
immediately
following sentence where the learned judge said this:-
" And, secondly, his belief
must be a reasonable belief; such a belief
" as a reasonable
man would entertain if he applied his mind and
" thought
about the matter."
That second direction, although
not without precedent, is in my opinion
impossible to reconcile
with the first. If the defendant believed (even on
unreasonable
grounds) that the woman was consenting to intercourse then
he
cannot have been carrying out an intention to have intercourse
without
her consent.
The Court of Appeal, Criminal
Division, did not feel the logical difficulty
because they appear
to have read the second part of the direction, and earlier
32
dicta to the same effect,
as meaning that the intention was related only to
the intercourse
and not to the absence of consent. Bridge J. said:
" Dicta to the
effect that the mens rea of rape is an intention to have
"
intercourse without consent really carry the matter no further.
They
" tell us that the act of intercourse must be
intentional, which by its
" nature it inevitably is, but
throw no light on the state of mind required
" to be shown
quoad absence of consent."
With all respect, I cannot
regard that as the proper reading of the passage
in the learned
judge's direction or of earlier dicta in similar terms. For
one
thing, it would be unnecessary because, as Bridge J. said, the
act of inter-
course by its nature inevitably is intentional. It
seems to me that the
meaning of the direction, and of the earlier
dicta is that the mens rea of
rape is an intention
to have intercourse with a non-consenting woman or
to have
non-consensual intercourse. If that is so, then the logical
difficulty
of requiring a belief in the woman's consent to be
based on reasonable
grounds arises sharply. If the effect of the
evidence as a whole is that the
defendant believed, or may have
believed, that the woman was consenting,
then the Crown has not
discharged the onus of proving commission of the
offence as fully
defined and, as it seems to me, no question can arise as to
whether
the belief was reasonable or not. Of course, the reasonableness
or
otherwise of the belief will be important as evidence tending
to show
whether it was truly held by the defendant, but that is
all.
The argument for the Crown in
support of an affirmative answer to the
question in this case was
not supported by any English decision on rape.
It was supported by
reference to English decisions in relation to other
offences which
are more or less analogous to rape, and to Australian
decisions on
rape, some of which I have already referred to. The English
case
upon which most reliance was placed was Tolson, supra, which
was
concerned with bigamy, and which decided that a bona fide
belief on
reasonable grounds in the death of the
husband at the time of the second
marriage afforded a good defence
to the indictment for bigamy. The main
argument in the case was
concerned with the question whether a mistaken
belief could be a
defence to a charge of bigamy at all, and comparatively
little
attention was given to the subsidiary point of whether the belief
had
to be based upon reasonable grounds. The case seems to me
therefore of
only limited assistance for the present purpose. We
were invited to overrule
Tolson but, as it has stood for
over eighty years, and has been followed
in many later cases, I
would not favour that course. But in my opinion
the case is
distinguishable from the present. Bigamy was a statutory
offence
under the Offences Against the Person Act 1861, section
57. So far as
appears from the words of the section, bigamy was an
absolute offence,
except for one defence set out in a proviso, and
it is clear that the mental
element in bigamy is quite different
from that in rape. In particular, bigamy
does not involve any
intention except the intention to go through a marriage
ceremony,
unlike rape in which I have already considered the mental
element.
So, if a defendant charged with bigamy believes that his spouse
is
dead, his belief does not involve the absence of any intent which
forms
an essential ingredient in the offence, and it is thus not
comparable to the
belief of a defendant charged with rape that the
woman consents. The
difficulty of arguing by analogy from one
offence to another is strikingly
illustrated by reference to the
case of R. v. Prince (1875) 13 Cox C.C. 138.
That
case dealt with abduction of a girl under the age of sixteen, an
offence
created by section 55 of the Act of 1861. Lord Bramwell,
with whom five
other judges concurred, held that a mistaken and
reasonable belief by the
defendant that the abducted girl was aged
sixteen or more was no excuse,
because abduction of a young girl
was immoral as well as illegal, although
% mistaken and reasonable
belief by the defendant that he had the consent
of the girl's
father would have been an excuse. If such differences can
exist
about mistaken beliefs of different facts in one offence, it is
surely
dangerous to argue from one offence to another. No doubt a
rapist, who
mistakenly believes that the woman is consenting to
intercourse, must be
behaving immorally, by committing fornication
or adultery. But those forms
of immoral conduct are not intended
to be struck at "by the law against rape ;
33
indeed, they are not now
considered appropriate to be visited with penalties
of the
criminal law at all. There seems therefore to be no reason why
they
should affect the consequences of the mistaken belief.
I feel more difficulty about the
Australian, and especially the Victorian,
rape cases. I have
already referred to their definition of the crime of rape
as
including an intention to have intercourse against the consent of
the
woman. Notwithstanding that, certain of them contain judicial
dicta that a
mistaken belief by the accused that the woman
was consenting was no
defence unless based upon reasonable grounds
(see Buries [1947] V.L.R. at
402), but in none of these
cases did the precise point with which we are now
concerned arise
for decision. In some of them the Court accepted that
mens rea
would be excluded by the mistaken belief only if it was based
on
reasonable grounds. But they did so either because authorities
which
they considered binding on them " constrained"
them to do so (R. v.
Sperotto, supra, at p. 505), or by
reference to particular authorities without
separate consideration
of the point (R. v. Flannery, supra, at p. 34).
Accor-
dingly, those cases do not contribute any additional
argument tending to
resolve the logical difficulty to which I have
referred in considering the
learned judge's direction in this
case, and which seems to me insuperable.
The authority referred to
in Flannery was Reg. v. Warner [1969] 2 A.C.
256
where Lord Reid at p. 276C quoted with approval the following
words from
Bank of New South Wales v. Piper [1897] AC 383:
" the absence of mens
rea really consists in an honest and reasonable
"
belief entertained by the accused of the existence of facts which
if
" true, would make the act charged against him innocent".
(My italics.)
Later in his speech Lord Reid
said (p. 280C):
" Mens rea or its
absence is a subjective test, and any attempt to sub-
"
stitute an objective test for serious crime has been successfully
"
resisted ".
With the greatest respect I
cannot see how it could be a subjective test,
if the absence of
mens rea includes the essentially objective element of
being
reasonable.
For these reasons, I am of the
opinion that there is no authority which
compels me to answer the
question in this case in what I would regard as
an illogical way.
I would therefore answer the question in the negative—
that
is in favour of the accused. But for the reasons stated by my
noble
and learned friends, Lord Hailsham and Lord Edmund-Davies, I
would
apply the proviso to the Criminal Appeal Act 1968, section
2(1), and I
would refuse the appeal.
319716 Dd 896269 120
4/75 StS
