The defendant had been convicted under the Act, of having carnal knowledge of ‘a woman . . under care or treatment in an institution or certified house or approved home, or whilst placed out on licence therefrom.’ She was at an institution for defectives as a ‘moral defective’. At the time of the alleged offences, she was out on licence. The prosecution conceded that the order had first been made without proper evidence that she was a ‘moral defective’ and that it could be successfully challenged on an application for certiorari or a writ of habeas corpus.
Held: The Prosecutor’s appeal failed. The issue was the construction of section 56. Did the prosecution have to prove she was lawfully detained? Whilst detention established a prima facie case that a woman was a defective and lawfully under care, that presumption could be rebutted if the defendant showed that the detention was in fact unlawful. The prosecution had itself adduced the evidence from which the invalidity of the order appeared, but the defendant could have brought such evidence. If he had so that it could be quashed, the court would have to ask whether a defence was made out. (Lord Denning, minority) The order was valid as at the date of the alleged offence. That was enough. Even though it was voidable and therefore liable to be quashed on certiorari. The majority did not think it voidable rather than void, but also doubted that, even if voidable rather than void, a defendant could not raise the matter by way of defence. (Lord Somervell of Harrow) ‘Is a man to be sent to prison on the basis that an order is a good order when the court knows it would be set aside if proper proceedings were taken? I doubt it.’ It would be a fundamental wrong for an individual to be convicted for contravening a rule which is itself liable to be set aside by a court as unlawful’.
Judges:
Viscount Simonds, Lord Reid, Tucker and Somervell of Harrow, Lord Denning
Citations:
[1959] AC 83, [1958] 1 All ER 679
Statutes:
Mental Deficiency Act 1913 56(1)(a)
Jurisdiction:
England and Wales
Cited by:
Cited – Boddington v British Transport Police HL 2-Apr-1998
The defendant had been convicted, under regulations made under the Act, of smoking in a railway carriage. He sought to challenge the validity of the regulations themselves. He wanted to argue that the power to ban smoking on carriages did not . .
Lists of cited by and citing cases may be incomplete.
Crime
Updated: 29 April 2022; Ref: scu.187057
