Prosecution to prove absence of genuine belief
To convict a defendant under the 1960 Act, the prosecution had the burden of proving the absence of a genuine belief in the defendant’s mind that the victim was 14 or over. The Act itself said nothing about any mental element, so the assumption must be that mens rea was required. There was no need to establish that the basis for any belief or lack of it was reasonable in fact. Honest belief is now the basis for the interpretation of such issues. The accused’s honest belief that a girl was over 14 need not be based on reasonable grounds.
Lord Nicholls of Birkenhead said: ‘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.’ The starting point is: ‘the established common law presumption that a mental element, traditionally labelled mens rea, is an essential ingredient unless Parliament has indicated a contrary intention either expressly or by necessary implication. The common law presumes that, unless Parliament has indicated otherwise, the appropriate mental element is an unexpressed ingredient of every statutory offence.’
Lord Nicholls said: ”Necessary implication’ connotes an implication which is compellingly clear. Such an implication may be found in the language used, the nature of the offence, the mischief sought to be prevented and any other circumstances which may assist in determining what intention is properly to be attributed to Parliament when creating the offence.’
Lord Chancellor, Lord Mackay of Clashfern, Lord Nicholls of Birkenhead, Lord Steyn, Lord Hutton
Times 25-Feb-2000, Gazette 16-Mar-2000, [2000] 2 AC 428, [2000] UKHL 13, [2000] 2 WLR 452, [2000] 1 All ER 833, [2000] Crim LR 403, [2000] 2 Cr App R 65
House of Lords, House of Lords, Bailii
Indecency with Children Act 1960 1(1)
England and Wales
Citing:
Cited – Fairclough v Whipp CCA 1951
The defendant was charged with indecent assault on a girl aged nine. At the man’s invitation the girl had committed an indecent act on the man.
Held: An invitation to another person to touch the invitor could not amount to an assault on the . .
Cited – Director of Public Prosecutions v Rogers 1953
It was not an assault on a girl, for a man to invite an eleven year old girl to touch him (in this case her father) indecently. . .
Cited – Regina v Tolson CCR 11-May-1889
Honest and Reasonable mistake – No Bigamy
The defendant appealed against her conviction for bigamy, saying that she had acted in a mistaken belief.
Held: A man commits bigamy if he goes through a marriage ceremony while his wife is alive, even though he honestly and reasonably . .
Cited – Bank of New South Wales v Piper PC 1897
(New South Wales) ‘the absence of mens rea really consists in an honest and reasonable belief entertained by the accused of facts which, if true, would make the act charged against him innocent.’ . .
Restricted – Sweet v Parsley HL 23-Jan-1969
Mens Rea essential element of statutory Offence
The appellant had been convicted under the Act 1965 of having been concerned in the management of premises used for smoking cannabis. This was a farmhouse which she visited infrequently. The prosecutor had conceded that she was unaware that the . .
Cited – Regina v Kimber CACD 1983
For mens rea, it is the defendant’s belief, not the grounds on which it is based, which goes to negative the intent. The guilty state of mind was the intent to use personal violence to a woman without her consent. If the defendant did not so intend, . .
Cited – Beckford v The Queen PC 15-Jun-1987
(Jamaica) Self defence permits a defendant to use such force as is reasonable in the circumstances as he honestly believed them to be. ‘If then a genuine belief, albeit without reasonable grounds, is a defence to rape because it negatives the . .
Cited – Regina v Morgan HL 30-Apr-1975
The defendants appealed against their convictions for rape, denying mens rea and asserting a belief (even if mistaken) that the victim had consented.
Held: For a defence of mistake to succeed, the mistake must have been honestly made and need . .
Cited – Blackburn and Others v Bowering and Another CA 5-Nov-1993
It was self defence if the defendant honestly believes the victim was not an officer of court. The issue was the genuineness of the belief, not its reasonableness. . .
Cited – Regina v Phekoo CACD 1981
The defendant was charged with doing acts calculated to interfere with the peace and comfort of residential occupiers so as to cause them to give up their occupation contrary to section 1(3)(a) of the 1977 Act. The defendant contended that he did . .
Cited – Regina v Williams (Gladstone) CACD 28-Nov-1983
The defendant believed that the person whom he assaulted was unlawfully assaulting a third party. That person was a police officer, who said he was arresting the other, but did not show his warrant card.
Held: The court considered the issue of . .
Doubted – Regina v Prince 1875
The defendant was convicted of unlawfully taking an unmarried girl under the age of 16 out the possession of her father. The defendant bona fide and on reasonable grounds believed that the girl was over 16.
Held: This provided no defence. ‘It . .
Cited – Rex v Maughan CCA 1934
The defendant was aged 22 and the child between 13 and 16. There were six counts, three of carnal knowledge, three of indecent assault, arising from the same facts. He was acquitted on the carnal knowledge counts, plainly because he made good the . .
Appeal from – B (A Minor) v Director of Public Prosecutions QBD 1999
Rougier J: ‘Though any violation of a child’s innocence attracts very grave stigma, yet the protection of children from sexual abuse is a social and moral imperative.’ . .
Cited – Rex v Forde CCA 1923
A man, under the age of 23, had intercourse with a 15 year-old girl. He was charged with offences against section 5(1) of the 1885 Act and section 52 of the 1861 Act, relating to the same act of intercourse. He pleaded not guilty to the first (more . .
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Cited – Regina v Secretary of State for the Home Department, Ex Parte Pierson HL 24-Jul-1997
The Home Secretary may not later extend the tariff for a lifer, after it had been set by an earlier Home Secretary, merely to satisfy needs of retribution and deterrence: ‘A power conferred by Parliament in general terms is not to be taken to . .
Cited – Warner v Metropolitan Police Commissioner HL 1968
The appellant had been convicted of an offence contrary to section 1 of the 1964 Act, of having been found in possession of drugs.
Held: (Reid dissenting) The prosecution had only to prove that the accused knew of the existence of the thing . .
Cited – Lim Chin Aik v The Queen PC 29-Nov-1962
Displaced Presumption Against Absolute Liability
In considering how the presumption against an absolute offence having been created, can be displaced ‘it is not enough in their Lordships’ opinions merely to label the statute as one dealing with a grave social evil and from that to infer that . .
Cited – Regina v Burstow, Regina v Ireland HL 24-Jul-1997
The defendant was accused of assault occasioning actual bodily harm when he had made silent phone calls which were taken as threatening.
Held: An assault might consist of the making of a silent telephone call in circumstances where it causes . .
Cited – Regina v Savage; Director of Public Prosecutions v Parmenter HL 7-Nov-1991
The first defendant had been convicted of wounding. She had intended to throw beer over her victim, but her glass slipped from her hand, and cut the victim. The second defendant threw his three year old child in the air and caught him, not realising . .
Cited – Woolmington v Director of Public Prosecutions HL 23-May-1935
Golden Thread of British Justice – Proof of Intent
The appellant had been convicted of the murder of his wife. She had left him and returned to live with her mother. He went to the house. He said he intended to frighten her that he would kill himself if she did not return. He wired a shotgun to . .
Cited – Brend v Wood 1946
The court discussed the need to assume that conviction for an offence required proof of mens rea.
Lord Goddard CJ said: ‘It should first be observed that at common law there must always be mens rea to constitute a crime; if a person can show . .
Cited – Gammon v The Attorney-General of Hong Kong PC 1984
(Hong kong) The court considered the need at common law to show mens rea. A Hong Kong Building Ordinance created offences of strict liability in pursuit of public safety which strict liability was calculated to promote.
Held: Lord Scarman . .
Cited by:
Cited – Regina v G and R HL 16-Oct-2003
The defendants, young boys, had set fire to paper and thrown the lit papers into a wheelie bin, expecting the fire to go out. In fact substantial damage was caused. The House was asked whether a conviction was proper under the section where the . .
Cited – Dunnachie v Kingston Upon Hull City Council CA 11-Feb-2004
Compensation for non-economic loss brought about by the manner of an unfair dismissal is, on authority and on principle, recoverable. The award of such compensation by the employment tribunal in the present case was not excessive and was adequately . .
Cited – Regina v Lambert HL 5-Jul-2001
Restraint on Interference with Burden of Proof
The defendant had been convicted for possessing drugs found on him in a bag when he was arrested. He denied knowing of them. He was convicted having failed to prove, on a balance of probabilities, that he had not known of the drugs. The case was . .
Cited – Sheldrake v Director of Public Prosecutions; Attorney General’s Reference No 4 of 2002 HL 14-Oct-2004
Appeals were brought complaining as to the apparent reversal of the burden of proof in road traffic cases and in cases under the Terrorism Acts. Was a legal or an evidential burden placed on a defendant?
Held: Lord Bingham of Cornhill said: . .
Cited – Regina v K HL 25-Jul-2001
In a prosecution for an offence of indecent assault on a girl under 16 under the section, it was necessary for the prosecution to prove the absence of a positive belief in the defendant’s mind that the victim was 16 or over. The legislation history . .
Cited – Regina v Kumar CACD 16-Dec-2004
The defendant appealed a conviction for buggery of a complainant under the age of 16, saying that he had a genuine belief that the boy had been of age.
Held: Buggery was not an absolute offence. The amendments to the 1956 Act did not signify . .
Cited – Regina on the Application of PW v Commissioner of Police for the Metropolis, The London Borough of Richmond-Upon-Thames Admn 20-Jul-2005
W, a child of 14 sought judicial review of an order to remove persons under the age of 16 from dispersal areas in Richmond.
Held: The issue was whether the power given to police to remove youths was permissive or coercive. The power given ‘is . .
Cited – Juncal, Regina (on the Application of) v Secretary of State for the Home Department and others CA 25-Jul-2008
The claimant appealed dismissal of his claim for wrongful imprisonment having been detained in 1997 on being found unfit to plead to an offence of violence.
Held: Parliament had a legitimate concern for the protection of the public, and . .
Cited – Brown, Regina v (Northern Ireland) SC 26-Jun-2013
The complainaint, a 13 year old girl had first said that the defendant had had intercourse with her againt her consent. After his arrest, she accepted that this was untrue. On being recharged with unlawful intercourse, he admitted guilt believing he . .
Cited – Lane and Another, Regina v SC 11-Jul-2018
The defendants were to be tried for allegedly sending funds abroad to support terrorism. The court now considered the meaning of the phrase ‘reasonable cause to suspect’ in the context of the anticipated use of the funds: ‘Does it mean that the . .
Lists of cited by and citing cases may be incomplete.
Crime
Leading Case
Updated: 31 December 2021; Ref: scu.78038