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, he was entitled to be found not guilty. If he did not so intend because he believed she was consenting, the prosecution will have failed to prove the charge, irrespective of the grounds for the defendant’s belief. There had to be evidence that the appellant had intended to do what he did unlawfully. However, ‘recklessness’ is established by ‘indifference’ to the woman’s wishes, ‘aptly described in the colloquial expression, ‘Couldn’t care less”.
Lawton LJ said: ‘The offence of indecent assault is now statutory: see section14 of the Sexual Offences Act 1956. The prosecution had to prove that the appellant made an indecent assault on Betty. As there are no words in the section to indicate that Parliament intended to exclude mens rea as an element in this offence, it follows that the prosecution had to prove that the appellant intended to commit it. This could not be done without first proving that the appellant intended to assault Betty. In this context assault clearly includes battery. An assault is an act by which the defendant intentionally or recklessly causes the complainant to apprehend immediate, or to sustain, unlawful personal violence . . In this case the appellant by his own admissions did intentionally lay his hands on Betty. That would not, however, have been enough to prove the charge. There had to be evidence that the appellant had intended to do what he did unlawfully. When there is a charge of indecent assault on a woman, the unlawfulness can be proved . . by evidence that the defendant intended to cause bodily harm. In most cases, however, the prosecution tries to prove that the complainant did not consent to what was done. The burden of proving lack of consent rests upon the prosecution: see Reg v May [1912] 3 KB 572, 575, per Lord Alverstone CJ. The consequence is that the prosecution has to prove that the defendant intended to lay hands on his victim without her consent. If he did not intend to do this, he is entitled to be found not guilty; and if he did not so intend because he believed she was consenting, the prosecution will have failed to prove the charge. It is the defendant’s belief, not the grounds on which it was based, which goes to negative the intent.’
Lawton LJ
[1983] 1 WLR 1118, [1983] 3 All ER 316, (1983) 77 Cr App R 225
England and Wales
Citing:
AppliedRegina 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 . .
Dicta doubtedRegina 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 . .
CitedRegina v Venna CACD 31-Jul-1975
An assault is an act by which the defendant intentionally or recklessly causes the complainant to apprehend immediate, or to sustain, unlawful personal violence. The jury ought to be directed that the defendant cannot be guilty of an assault unless . .
CitedRex v Donovan CCA 1934
The defendant was convicted of indecent assault and common assault after caning a 17 year old female complainant for the purposes of sexual gratification. The complainant suffered actual bodily harm, though the defendant was not charged with an . .

Cited by:
CitedB (A Minor) v Director of Public Prosecutions HL 23-Feb-2000
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 . .
CitedDirector of Public Prosecutions v Armstrong-Braun Admn 5-Oct-1998
A building site was subject to a requirement to move great crested newts before work could proceed. The defendant, a local councillor interfered to prevent a digger destroying the land until the newts had been moved. He appealed his conviction for . .
CitedRegina 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 . .
CitedAshley and Another v Sussex Police CA 27-Jul-2006
The deceased was shot by police officers raiding his flat in 1998. The claimants sought damages for his estate. They had succeeded in claiming damages for false imprisonment, but now appealed dismissal of their claim for damages for assault and . .
CitedAshley and Another v Chief Constable of Sussex Police HL 23-Apr-2008
The claimants sought to bring an action for damages after a family member suspected of dealing drugs, was shot by the police. At the time he was naked. The police officer had been acquitted by a criminal court of murder. The chief constable now . .

These lists may be incomplete.
Updated: 27 February 2021; Ref: scu.195970