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Cite as: [2000] EWCA Crim 57

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CROWN PROSECUTION SERVICE v. `K' [2000] EWCA Crim 57 (31st October, 2000)



Case No: 200004142 S3

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Tuesday 31 October 2000
B e f o r e :
LORD JUSTICE ROCH
MR JUSTICE ROUGIER
and
MR JUSTICE GRAY

CROWN PROSECUTION SERVICE

Appellant

- and -



`K'

Respondent


- - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - -
Anthony Scrivener QC & Anthony Heaton-Armstrong (instructed by the Crown Prosecution Service for the Appellant)
David Fisher QC & Irena Ray-Crosby (instructed by Messrs Marsh Ferriman & Cheale for the Respondent)



Judgment
As Approved by the Court
Crown Copyright ©



ROCH LJ:

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

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