United Kingdom Journals

		[2000] 2 Web JCLI

Sexual offences, strict liability and mistaken belief: B v DPP in the House of Lords

Helen Power

Senior Lecturer in Law,
University of Glamorgan
<hpower@glam.ac.uk>

Copyright © 2000 Helen Power.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

Summary

Recent developments in the criminal justice system evidence a protectionist, crime control approach to dealing with sex offending, yet the sexual offences law enforced by that system is incoherent. It is against this background that B v DPP [2000] 1 All ER 833 was decided: the House of Lords ruled that the offence under the Indecency with Children Act 1960, s 1, of incitement of a child under 14 to an act of gross indecency carries neither strict nor negligence liability. A defendant who mistakenly believes, albeit unreasonably, that the child is 14 or more years old is entitled to an acquittal. In so ruling, their Lordships have signalled their commitment to subjectivism, and put Parliament and government on notice that if they want a crime control approach to our sexual offences, the responsibility for producing this is theirs and not the courts'. The author suggests a replacement for the s 1 offence: a crime of negligence capable of commission only by those aged 16 or more.

Contents

1. Introduction
2. The facts, proceedings and outcome
3. The decision

(a) The presumption of mens rea and strict liability

(b) Mistaken belief: reasonable or merely honest?

4 Conclusions

Bibliography

1. Introduction

The most recent developments in the criminal justice system in relation to sex offending have evidenced a clear Parliamentary and governmental preference for a crime control, protectionist ethos which leaves little room for offenders' due process rights. Existing penalties for sexual offences have been increased,⁽¹⁾ extended sentences have been reintroduced for sex (and violent) offenders,⁽²⁾ sentencing guidelines reveal a hardening of judicial attitudes⁽³⁾ and sex offenders' movements are now subject to close monitoring and control.⁽⁴⁾ Despite these developments, however, criminal justice agencies still have to operate with a body of sexual offences law which by any standards is incoherent. Thus, for instance, the crime under the Sexual Offences Act 1956, s 6 - unlawful sexual intercourse with a girl under 16 - is subject to the "young man's defence" under s 6(3): if the defendant is under 24, has not previously been charged with the s 6 offence or with an attempt to commit it, and reasonably believed the girl to be 16 or over, he is entitled to an acquittal; yet if the same young man is charged under s 14 of the Act with an indecent assault on the same girl, he has no defence (Forde (1923) 17 CAR 99 and Maughan (1934) 24 CAR 130). In January 1999, the Home Office launched a review of sexual offences, a central objective of which is to "provide coherent and clear sex offences which protect individuals, especially children and the vulnerable, from abuse and exploitation." (Home Office, 1999). Until the review is published and acted upon, the courts have to impose what order they can in the law. As Lord Justice Brooke said in somewhat exasperated tones in the Divisional Court's decision in B v DPP ([1999] 3 WLR 116 at p 128), "[T]his three-judge court has just spent a day and a half at the taxpayer's expense exploring the highways and byways of our laws on sexual offences simply because Parliament has not explained to us the mens rea requirement for some of those offences in clear, simple terms."

It is against this background that the House of Lords had to decide the appeal in B v DPP [2000] 1 All ER 833,⁽⁵⁾ a case involving a sexual offence against a 13 year old girl by a 15 year old boy. Their Lordships laid to rest any lingering doubts there may have been concerning the impact on criminal liability of a mistaken belief as to a definitional element of a crime: such a belief need not be based on reasonable grounds. In so deciding, their Lordships have breathed new life into the "subjectivist bug",⁽⁶⁾ and clearly signalled their faith in the liberal ideal of due process - a move unlikely to be received with enthusiasm by many within the criminal justice system.

Another of the objectives set for the Home Office's review of sexual offences is to "be fair and non-discriminatory in accordance with the ECHR and the Human Rights Act." Lord Justice Brooke in the Divisional Court gave warning: "How the more incoherent parts of our criminal law will stand up to the rigorous standards required by the European Court of Human Rights, by which the citizen must have an adequate indication of the legal rules which are to be applied in any given case, remains to be seen as we prepare to receive the Convention...into our national law in the millennium year" (B v DPP [1999] 3 WLR 116 at p 128). Indeed the Act, due to be implemented in October 2000, is widely expected to impact most immediately on our criminal law. It is, therefore, somewhat surprising that their Lordships make no mention of it in their opinions although, as we shall see, there is a decidedly rights-based discourse evident in Lords Steyn's and Hutton's speeches.

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2. The facts, proceedings and outcome

The facts of the case are straightforward. B, a 15 year old boy, was sitting next to a 13 year old girl on a bus. She repeatedly refused his request for her to commit oral sex on him and, in the event, nothing actually happened. He was convicted by a Youth Court of inciting a child under 14 to commit an act of gross indecency with him (contrary to the Indecency with Children Act 1960, s 1) after the magistrates ruled that B's belief that the girl was over 14 years old was irrelevant, as the crime carried strict liability. B was subjected to an 18 month supervision order and became liable to register as a sex offender under the Sex Offenders Act, 1997.⁽⁷⁾ His appeal by way of case stated to a Divisional Court of the Queen's Bench Division (Brooke L.J., Tucker and Rougier JJ.) was rejected and the following points of law were certified for consideration by the House of Lords:

"Is a defendant entitled to be acquitted of the offence under...s.1(1) of the Indecency with Children Act 1960 if he may hold an honest belief that the child in question was aged 14 years or over? If yes, (a) must the belief be held on reasonable grounds; (b) on whom does the burden of proof lie?"

A unanimous House of Lords (Lords Irvine LC, Mackay, Nicholls, Steyn and Hutton) quashed B's conviction and answered the first question affirmatively: nothing in the 1960 Act, whether expressly or by necessary implication, displaced the common law presumption of mens rea so as to create an offence of strict liability. As to (a), a mistaken belief that the victim is at least 14 years old need not be based on reasonable grounds and (b) the burden lies on the prosecution to disprove such belief. Lord Irvine LC concurred in Lord Nicholls' reasoning and Lord Mackay agreed with the full judgments delivered by Lords Nicholls, Steyn and Hutton. Whilst Lords Nicholls and Steyn appear committed to the stance taken by the House, Lord Hutton's opinion reveals a certain unease about the implications.

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3. The decision

(a) The presumption of mens rea and strict liability

It is a well-established common law presumption that unless a contrary Parliamentary intention is expressed or is necessarily implied, statutory crimes are to be read as requiring proof of mens rea. Lords Nicholls, Steyn and Hutton in B (at pp 835, 844-45 and 851-52 respectively) all cited the passage in Lord Reid's speech in Sweet v Parsley [1970] AC 132 at pp 148-9 in which he expressed the presumption as follows:

"[T]here has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did. That means that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea...[I]t is firmly established by a host of authorities that mens rea is an essential ingredient of every offence unless some reason can be found for holding that that is not necessary."

The Privy Council in Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong [1985] AC 1 stated that the presumption is "particularly strong where the offence is 'truly criminal' in character" and that it can only be displaced "where the statute is concerned with an issue of social concern...[and] even [then]..., the presumption of mens rea stands unless it can be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act." (p 14). The interpretative process requires examination of the offence in its statutory and social contexts, each of which has come to involve the addressing of specific matters, including, but not only, those referred to in Gammon.

(i) Statutory context

Although their Lordships did not refer to Hansard to establish Parliament's thinking on mens rea and the 1960 Act, Rougier J in the Divisional Court noted that "[k]nowledge, or mens rea, was not discussed in either House." ([1999] 3 WLR 116 at p 122). Moreover, as Lord Steyn observed (at p 841), there was no discussion of the mens rea, if any, required for the offence in the Criminal Law Revision Committee's report which led to the 1960 Act (CLRC, 1959). If Parliament has chosen to remain silent about the crime in question whilst spelling out mens rea requirements for other crimes, then the silence may be indicative of an intention to impose strict liability.

The 1960 Act on its own, however, is of no assistance in this regard as it contains no other offence provisions. Instead, their Lordships (like the Divisional Court) in B read the 1960 Act as an 'appendix' to the Sexual Offences Act 1956 as it was specifically enacted in response to a perceived lacuna in that Act. Two Court of Appeal decisions - Fairclough v Whipp [1951] 2 All ER 834 and DPP v Rogers [1953] 1 WLR 1017 - had decided that there was no indecent assault (under ss 14 and 15 of the 1956 Act) where the defendant had merely invited a child to commit an indecent act, there being no assault as such in these circumstances. Thus the 1960 Act criminalises the mere incitement to an act of gross indecency, without need of proof of an assault. By adopting this approach, their Lordships were able to point to the incoherence in the 1956 Act's definitions of sexual offences to demonstrate that the presence or absence of mens rea words was not the product of a carefully thought out code of sexual offences, but instead reflected the ad hoc development of the law governing sexual matters. As Lord Steyn put it, "It would be...accurate to describe it [i.e. the 1956 Act] as the bringing together in one statute of a range of offences pragmatically created at different times in response, no doubt, to the perceived demands of public interest at the time." (p 842). Lord Nicholls made essentially the same point: "[T]he motley collection of offences, of diverse origins, gathered into the Sexual Offences Act 1956 displays no satisfactorily clear or coherent pattern." (pp 839-40). Their Lordships were therefore able to conclude that no guidance was to be derived from the 1956 Act as to whether or not the absence of mens rea words in s 1 of the 1960 Act was significant.

The maximum penalty attaching to a crime is another indicator of whether it is to be read as requiring proof of mens rea: "The more serious the offence, the greater is the weight to be attached to the presumption, because the more severe is the punishment and the graver the stigma which accompany a conviction." (Lord Nicholls at p 838). The s 1 offence under the 1960 Act used to carry a maximum of two years but this had been increased to 10 (Crime (Sentences) Act 1997, s 52). Almost incredibly, only Lord Nicholls adverted to the fact that the Sex Offenders Act, 1997 automatically required B to 'register' with the police as a sex offender (p 838). In the event, B is now of course de-registered, but the next 15 year old who repeats B's invitation to a 13 year old girl whom he knows is 13, or about whose age he is recklessly indifferent, will have to register. Indeed, as Lord Justice Brooke in the Divisional Court noted, "Now that the presumption of doli incapax is being banished from our law [by Crime & Disorder Act 1998, s 34], a child of any age above the age of criminal responsibility [i.e. 10 or more years old] may in theory be convicted [under s 1]" ([1999] 3 WLR 116 at p 128) - he might have added that they would consequently have to register under the 1997 Act.

The thrust of the prosecution's argument relating to the statutory context of the s 1 offence was that - (1875) LR 2 CCR 154 had set the seal on the proper approach to the interpretation of age-based sexual offences relating to children and young people. Prince's conviction under the Offences against the Person Act 1861, s 55 (now s 20 of the 1956 Act) for the unlawful abduction of an unmarried girl under 16 out of the custody of her father was upheld by 15 of the 16 judges hearing the appeal, despite his having reasonably believed that she was over 16. As Lord Nicholls observed in B, this context was "undoubtedly the Crown's strongest point." (p 839). On the rationale of Prince (subsequently applied to indecent assault: see Forde and Maughan above), Lord Nicholls was content to observe that it is "at variance with the common law presumption regarding mens rea...To that extent, the reasoning must be regarded as unsound." (p 840). Lord Steyn gave the case his more considered attention (pp 848-49), relying heavily on Sir Rupert Cross' analysis of Prince in an article in which he identified the reasoning of Blackburn J (who gave the leading judgment) as having been based on a drafting error (Cross 1975).⁽⁸⁾ Lord Steyn concluded that "the principal ground of the decision of Blackburn J has disappeared...I would reject counsel's attempt to reinvigorate Prince's case: it is a relic from an age dead and gone. It is no longer possible to extract from [it] a special principle of construction applicable only to age-based offences." (p 849). Lord Hutton's handling of Prince was more circumspect, but he nevertheless concluded, "I am of opinion that to the extent that Prince's case can be viewed as establishing a general rule that mistake as to age does not afford a defence in age-based sexual offences, that rule cannot prevail over the presumption...". (p 854). Precisely where this leaves Prince is not altogether clear: Lord Hutton appears to be implicitly preserving it for some unspecified purposes (presumably it stands in relation to abduction under s 20 of the 1956 Act) but rejecting it as laying down a general rule of construction; in any event, their Lordships' views on the case were, strictly, obiter. It was left to Brooke LJ in the Divisional Court's decision in B (in what Lord Steyn at p 849 describes as a "valuable discussion") to provide a thorough-going critique of Prince's case. Recalling "how different the world was then" ([1999] 3 WLR 116 at p 129), he noted that s 55 of the 1861 Act was essentially aimed at protecting the father's right to possession of the child, rather than at protecting the girl per se. This being so, Brooke LJ concluded that, whilst the Divisional Court was bound by Prince and its progeny, it was not a solid foundation on which to base construction of the Act of 1956: "by 1956 the idea that a mature teenage girl was one of her father's possessions would no longer have been dominant in judicial thinking on the interpretation of that Act." ([1999] 3 WLR 116 at p 132). One way or another, it would seem that the days of Prince are numbered.

Lord Steyn adopted a rights-based approach to the statutory context in which s 1 appears, by relying on the principle of legality underlying the presumption of mens rea. He quotes (at p 844) Lord Hoffmann in R v Home Secretary, ex p Simms [1999] 3 WLR 328 at p 341:

"[T]he principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual." (emphases added)

Lord Steyn hints at what may in future be a more robust approach to the question of strict liability when he says that "in the absence of express words or a truly necessary implication, Parliament must be presumed to legislate on the assumption that the principle of legality will supplement the text.⁽⁹⁾ This is the theoretical framework against which section 1(1) [of the 1960 Act] must be interpreted." (p 844: emphasis added). Although not basing his reasoning in the same theoretical framework, Lord Nicholls similarly suggests that, "'Necessary implication' connotes an implication which is compellingly clear." (p 838).

Lord Hutton also adopts an overtly rights-based analysis, though the emphasis is different:

"[I]n a criminal statute intended to protect children the courts should not focus solely on the rights of the accused but should also take into account the right of children to be protected." (p 853).

In a rare judicial example of frank acknowledgement that academics' generally liberal (due process) values frequently conflict with the crime control values of the judiciary, he quotes (at p 853) Ashworth for the view that "values of both kinds do and should form part of criminal law doctrine. The next step is to recognise that they will frequently conflict and that...situations will occur in which the courts must make that choice. This makes it crucial that policies and principles are openly discussed, rather than concealed behind high-sounding phrases about 'legislative intent', 'public policy' or the 'principle of legality'." (Ashworth 1991 at p 446). In this vein, Lord Hutton goes on to acknowledge (p 854) that a Parliamentary intent to impose strict liability can reasonably be implied from the 1956 Act in light of the overall policy of child protection so clearly implicit in the Act, but he is - clearly reluctantly - not persuaded that it is necessarily implied.

(ii) Social context

The social context of an offence is supposed to be indicative of its status as 'truly' or merely 'quasi' criminal; if 'truly criminal', then fault-based liability is inferred. To establish an offence's status, consideration is given to its scope, the 'social evil' or 'mischief' with which it deals, the requirements of public protection and deterrence and the administrative efficiency of enforcement agencies.

Basically the more narrowly focused the offence, the more acceptable is the imposition of strict liability. The more the crime is concerned with a specific activity engaged in by an identifiable group of people (e.g. a business or trade), the more likely it is to be treated as a 'quasi-crime' carrying strict liability. Lords Nicholls and Steyn make much of the fact that whilst the offence under s 1 of the 1960 Act clearly has in its sights the predatory paedophile, it also applies to the pubescent and adolescent fumblings of boys and girls. Thus, Lord Nicholls:

"[T]he offence is drawn broadly...It can embrace conduct ranging from predatory approaches by a much older paedophile to consensual sexual experimentation between precocious teenagers of whom the offender may be the younger of the two. The conduct may be depraved by any acceptable standard, or it may be relatively innocuous behaviour in private between two young people." (p 838).

And Lord Steyn:

"The [offence] is apt to cover acts of paedophilia and all responsible citizens will welcome effective legislation in respect of such a great social evil. But it also covers any heterosexual or homosexual conduct between teenagers if one of them is under 14. And the actus reus extends to incitement of a child under 14: words are enough. [It] therefore extends to any verbal sexual overtures between teenagers if one of them is under 14...For the law to criminalise such conduct of teenagers by offences of strict liability would be far reaching and controversial." (pp 845-46: emphasis in original).

Interestingly, Lord Hutton says nothing on this point, preferring to stress the social evil - the sexual abuse of children - at which the offence is aimed and the 'social and moral imperative' of protecting children from it:

"The purpose of s 1 is clearly to protect children under the age of 14 from sexual corruption: to protect their 'sexual integrity'...This purpose may be impeded if the happiness and stability of a child under 14 is harmed by the violation of his or her innocence by some act of gross indecency or incitement to gross indecency committed by a person who honestly believes that the child is older than 14." (p 852).

Lords Nicholls and Steyn similarly acknowledge the evil of child abuse, but Lord Steyn, citing Lim Chin Aik v R [1963] AC 160 at p 174, notes that:

"It is not enough to label the statute as one dealing with a great social evil and from that to infer that strict liability was intended." (p 848).

Lord Nicholls does not share Lord Hutton's concern that the House's decision might make dealing with child sexual abuse more difficult:

"[i]t is far from clear that strict liability regarding the age ingredient of the offence would further the purpose [of s 1]...more effectively than would be the case if a mental element were read into this ingredient. There is no general agreement that strict liability is necessary to the enforcement of the law protecting children in sexual matters." (p 839).

He thinks the alleged difficulties posed for the prosecution by the requirement to prove an absence of belief that the victim was 14 or older are exaggerated and spring from a feeling that the tribunal of fact (jury or magistrates) cannot be trusted to 'get it right'. (pp 838-39). Lord Steyn similarly considers the difficulties to be "overstated...[R]ecklessness or indifference as to [the victim's being under 14]... would be sufficient for guilt...[T]he suggested evidential difficulties ought not to divert the House from a principled approach" (p 850).

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(b) Mistaken belief: reasonable or merely honest?

The Crown confined itself to arguing that the s 1 offence was a crime of strict liability and did not seek to argue in the alternative that, if this was wrong, then liability at most should be based on negligence, rebuttable only by proof that the defendant made a reasonable mistake as to the defendant's age. Nevertheless, the House was asked by the Divisional Court to give its ruling on the nature of the mistaken belief required for an acquittal.

The position can be succinctly summarised as follows:

"[W]hen intention or subjective recklessness is required as to an element of the crime, an honest mistake will suffice to negative mens rea. When the crime requires proof of negligence, a reasonable mistake will be required." (Jefferson, 1999, p 91).

At B's trial, it was accepted that he honestly believed the girl was over 14, but the magistrates made no finding as to whether or not his mistake was reasonable. In support of the view that such a mistake should have to be reasonable was a line of cases going back to Tolson (1889) 23 QBD 68 which had ruled that on a charge of bigamy (s 57, Offences against the Person Act 1861), the defendant's mistaken belief at the time of the second marriage that she was a single person had to be reasonable. In Sweet v Parsley itself, the House of Lords had stated the presumption of mens rea in such a way that only a reasonable mistaken belief would negative mens rea and, in Albert v Lavin [1982] AC 546, had ruled that a mistaken belief in the context of self and other defence had to be reasonable. Lord Nicholls noted that the "'reasonable belief' school of thought held unchallenged sway for many years" but that in the last 25 years "there have been several important cases...[in which] the courts have placed new, or renewed, emphasis on the subjective nature of the mental element in criminal offences." (p 836). The cases are well known: DPP v Morgan [1976] AC 182, in which the House of Lords ruled that an honest, mistaken belief in the victim's consent need not be reasonable to rebut a charge of rape; Kimber [1983] 1 WLR 1118, in which the Court of Appeal applied Morgan to the crime of indecent assault; and, in relation to a mistaken belief in the need for self-defence, Gladstone Williams (1983) 78 CAR 276 in the Court of Appeal and Beckford [1988] AC 130 in the Privy Council. The ruling in B is thus an important one as it is the first time the House has had the opportunity to deal with honest mistake since Morgan itself, and there has been a lurking doubt as to whether that case applies to mistaken belief across the criminal law. In concluding that it does, Lord Nicholls enthusiastically embraced subjectivism:

"Considered as a matter of principle, the honest belief approach must be preferable. By definition the mental element in a crime is concerned with a subjective state of mind, such as intent or belief. To the extent that an overriding objective limit ('on reasonable grounds') is introduced, the subjective element is displaced...When that occurs the defendant's 'fault' lies exclusively in falling short of an objective standard. His crime lies in his negligence. A statute may so provide expressly or by necessary implication. But this can have no place in a common law principle, of general application, which is concerned with the need for a mental element as an essential ingredient of a criminal offence." (p 836).

He goes on to locate the origin of the 'reasonable belief' school of thought in the historical inability of the defendant to testify in his own defence (prior to the Criminal Evidence Act 1898) (p 836). For his part, Lord Steyn acknowledges the attractiveness of the reasonable belief approach - "I initially regarded [it] as an acceptable solution" (p 850) - but later notes -

"There has been a general shift from objectivism to subjectivism in this branch of the law. It is now settled as a matter of general principle that mistake, whether reasonable or not, is a defence when it prevents the defendant from having the mens rea which the law requires for the crime with which he is charged." (pp 850-51).

To rule otherwise, he suggests, would create uncertainty in the criminal law generally and it "would be difficult to confine it on a principled basis" to the s 1 offence (p 851). Lord Hutton added nothing to the discussion of this issue, merely agreeing (at p 854) with Lord Steyn.

The upshot, then, in terms of the mens rea required for the s 1 offence, is that the prosecution must prove that the defendant either knew the victim was under 14 or that he was subjectively recklessly indifferent to this fact. This is interesting, as it suggests that the objectivism so famously embraced by Lord Diplock in Caldwell [1982] AC 341 and Lawrence [1982] AC 510 is clearly on the wane (as indeed was already becoming clear with cases like Reid [1992] 3 All ER 673).

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4 Conclusions

The House of Lords clearly felt that, having ruled out the possibility of strict liability for the s 1 offence, the only viable option was a ruling that the crime requires full blown knowledge of, or subjective recklessness as to, the victim's age. Yet given Parliament's silence on the mens rea for the crime, a conclusion that the crime is one of Caldwell recklessness (or, indeed, of negligence) is surely not ruled out.⁽¹⁰⁾ A Parliamentary vacuum creates an empty space into which the Law Lords can of course pour whatever they wish. Indeed, a somewhat intriguing statement in a passage (quoted above) from Lord Nicholls' judgment suggests that their Lordships were well aware that negligence liability was an option:

"By definition the mental element in a crime is concerned with a subjective state of mind, such as...belief. To the extent that an overriding objective limit ('on reasonable grounds') is introduced, the subjective element is displaced...When that occurs...[the defendant's] fault lies in his negligence. A statute may so provide expressly or by necessary implication." (p 836: emphasis added).

Despite Lord Hutton's apparent acceptance of Ashworth's view that judges should make express the policy choices confronting them, in fact their Lordships did not take this seriously. In effect, they framed the question to be dealt with thus: 'This crime requires proof of subjective mens rea; is this negatived by a reasonable mistake or by a merely honest one?' Thus framed, the question only ever had one answer, namely that a merely honest mistake negatives mens rea. The choice actually confronting them, however, suggests a different question: 'This crime does not carry strict liability; does it, then, carry negligence liability, which is negatived by a reasonable mistake, or does it require subjective mens rea which is, of course, negatived by a merely honest mistake?' Subject to an important caveat, their Lordships could, then, have ruled that the s 1 offence is a crime of negligence, for at least two reasons: firstly, the importance attached to the prevention and punishment of the sexual abuse of children and secondly, the relative ease with which defendants could fulfil a requirement of reasonable belief in sexual matters. The caveat is that a ruling by their Lordships that the s 1 offence required mere negligence would have been problematic. Given its current applicability to everyone above the age of criminal responsibility and that a caution or conviction carries with it automatic registration as a sex offender, such a ruling would have been, in the author's opinion, premature, pending a thoroughgoing rationalisation of sexual offences law in which the range of potential defendants to proceedings for crimes of indecency is narrowed so as to exclude those who are in truth themselves still children. It is highly doubtful that the popular conception of the kind of sex offender subject to the registration requirements of the Sex Offenders Act 1997 includes the 15 year old (let alone the 10 year old) propositioning a girl only two years younger than himself on a bus, and it is certain that during the passage of the 1997 Act, this was not the kind of offender on Parliament's collective mind.⁽¹¹⁾ Provisions aimed at dealing with dangerous offenders are obviously being stretched to the limit when applied to someone as young as 15 engaging in indecent conduct involving no sexual assault.

In effect, their Lordships were simply putting Parliament on notice that unless it legislates clearly for the precise degree of fault required in the context of sex offending - something to which Parliament will be turning its mind when the Home Office review is complete - then it should not be surprised if the courts are not prepared to abandon subjectivism and due process values, particularly as the Human Rights Act will by then form the backdrop of their decision-making in the criminal law. When Lord Steyn adverts to the defendant's fundamental rights, he does not specify precisely which fundamental right is at stake in B, but he doubtless has in mind the defendant's due process rights to a fair trial as protected by Article 6 of the ECHR - a convention right which, of course, will be a part of UK law from October 2000. Then the courts will have to read general words as subject to the defendant's convention rights unless it is impossible to reconcile the legislation in question with the rights at stake (Human Rights Act 1998, s 3). From the perspective of a Parliament wedded to a crime control ethos, the decision in B is a warning that things can only get worse unless Parliament clarifies its thinking. Lord Nicholls firmly placed responsibility on Parliament:

"If Parliament considers that the position should be otherwise regarding this serious social problem, Parliament must itself confront the difficulties and express its will in clear terms." (p 840).

Lord Hutton:

"If Parliament regards the decision in this case as giving rise to undesirable consequences it will be for it to change the law." (pp 854-55).

When Parliament does change the law, it might like to consider the possibility of replacing s 1 of the Indecency with Children Act 1960 with a crime of negligence only capable of commission by those aged 16 or more. In view of the emphasis placed by Lords Nicholls and Steyn on the fact that the s 1 offence takes in the relatively innocuous sexual experimentation of teenagers, much of the rationale for the ruling in B would disappear if the scope of the crime were narrowed so as to avoid criminalising those under 16. As to negligence liability, an objective test in the context of sexual offending, where defendant and victim are in close proximity to one another, is not nearly so objectionable as it is elsewhere. It is one thing to rail against the injustice produced by objective recklessness (and negligence) in the context of the destruction of property where a defendant is punished for her failure to be aware of an abstract risk (see Elliott v C (A Minor) [1983] 2 All ER 1005), and quite another to assume that it would be unjust to require the defendant to ensure that his belief in the victim's age is reasonable: he could, quite simply, ask. As Wells puts it (in the context of a discussion of mistaken belief by a rape defendant that his victim is consenting) -

"If the defendant is so out of touch with the reality of the situation, is there not a suggestion that he should take more care to ensure that his sexual partner is willing? Social protection might be better served by the punishment of a defendant who failed to acquaint himself with this (seemingly) elementary fact." (Wells 1982, pp 212-213).

Any such provision would have to make it clear that the reasonableness of a defendant's mistake as to the victim's age would have to be assessed according to the circumstances of particular cases - including relevant characteristics of the defendant. Only thus could the law avoid branding as sex offenders those who are, for instance, inordinately naïve or who otherwise enjoy less than full capacity for choice.

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Bibliography

Ashworth, A (1991), 'Interpreting Criminal Statutes: A Crisis of Legality?' 107 Law Quarterly Review 419.

Clarkson, C & Keating, H (1998), Text and Materials on Criminal Law (4^th edition), Sweet & Maxwell.

CLRC (1959), First Report: Indecency with Children, Cmnd. 835.

Cross, R (1975), 'Centenary Reflections on Prince's Case' 91 Law Quarterly Review 540.

Home Office (January, 1999), A Review of Sex Offences.

Jefferson, M (1999), Criminal Law (4^th edition), Pitman Publishing.

Nash, M (1999), Police, Probation and Protecting the Public, Blackstone Press

Power, H (1998), 'Gay Men and Part I of the Sex Offenders Act 1997' [1998] 1 Web Journal of Current Legal Issues

Power, H (1999), 'Sex offenders, privacy and the police' Criminal Law Review 3

Wells, C (1982), 'Swatting the Subjectivist Bug' Criminal Law Review 209

Footnotes

(1) Section 2, Crime (Sentences) Act 1997 imposes a mandatory life sentence upon second conviction for rape (s 1, Sexual Offences Act 1956 - SOA) and attempted rape, and unlawful sexual intercourse with a girl under 13 (s 5, SOA 1956); s 52 increased the penalty for gross indecency with a child under 14 (s 1, Indecency with Children Act 1960) from 2 to 10 years' imprisonment. The penalty for indecent assault on a female (s 14, SOA 1956) was increased from 2 to 10 years to bring it into line with indecent assault on a male (Sexual Offences Act 1985).

(2) Section 58, Crime & Disorder Act 1998 enables the court to extend sex and violent offenders' sentences by up to a maximum of 10 years.

(3) See R v L (Indecent Assault: Sentencing) (1998) Times 28 April (approved in R v Wellman (Leslie Edward) (1999) Times 5 Jan), disapproving the guidelines laid down in R v Demel (1997) 2 CAR (S).

(4) The Sexual Offences (Conspiracy & Incitement) Act 1996 for the first time criminalised 'sex tour operators'; Part II, Sex Offenders Act 1997 targeted the 'tourists'. Part I of the latter Act introduced the requirement for those cautioned or convicted of certain sex offences to 'register' with the police: see Power, 1998. The Crime & Disorder Act 1998, ss 2-4, introduced a new civil order - the 'sex offender order' - available on request by the police from magistrates. Its effect is to impose certain conditions on the offender, breach of which is a crime; it also carries with it an obligation to 'register' under the 1997 Act: see Power, 1999. The policy focus on sex offending has contributed to the shift evident in the probation service towards protection of the public: see generally Nash, 1999. That shift will be given legal formality if the Criminal Justice & Court Services Bill 2000 is enacted: cl. 2(2) makes protection of the public the service's first aim.

(5) Hereinafter, all page references are to this report unless otherwise stated.

(6) A reference to Cross, 1975 and Wells, 1982. The decision in Caldwell [1982] AC 341, HL was widely regarded as having undermined the subjectivist approach to liability by having expanded the concept of 'recklessness' so as to include within its ambit the individual who fails to advert to a serious risk which would be obvious to the reasonable person.

(7) A caution or conviction for the offence under s 1 of the 1960 Act triggers liability to 'register' under the 1997 Act regardless of the ages of defendant and victim: see Sched. 1, para. 1(1)(b) of the 1997 Act.

(8) The use here of Cross to support a subjectivist approach to resolution of the case is somewhat ironic, given that Cross in that article "lamented the fact that some criminal lawyers were 'in total bondage to the subjectivist bug.'" (Wells 1982, p 210)

(9) This is not to suggest that the modern judicial approach is universally opposed to strict liability: see, for instance, Harrow London Borough Council v Shah [2000] 1 WLR 83 in which the Divisional Court ruled that s 13, National Lottery etc. Act, 1993 - sale of lottery ticket to person under 16 - is a crime of strict liability.

(10) This is not the place to enter into a discussion of the distinction between Caldwell recklessness and negligence in the criminal law: see Clarkson & Keating, 1998, pp 174-175. In any event, for the purposes of the proposal here, the distinction is not significant.

(11) Throughout the debates on the 1997 Act, the focus of Parliament's attention was the 'predatory paedophile': see Power, 1998.