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 not have been reasonably held. Where a defendant had sexual intercourse with a woman without her consent but believing she did consent, he was not guilty of rape even though he might have no reasonable grounds for his belief. The intent to commit rape involves an intention to have intercourse without the woman’s consent or with a reckless indifference to whether she consents or not.
Lord Cross said: ‘section 1 of the 1956 Act does not say that a man who has sexual intercourse with a woman who does not consent to it commits an offence; it says that a man who rapes a woman commits an offence. Rape is not a word in the use of which lawyers have a monopoly and the question to be answered in this case, as I see it, is whether according to the ordinary use of the English language a man can be said to have committed rape if he believed that the woman was consenting to the intercourse and would not have attempted to have it but for his belief, whatever his grounds for so believing. I do not think that he can.’
Lord Hailsham said: ‘Once one has accepted, what seems to me abundantly clear, that the prohibited act in rape is non-consensual sexual intercourse, and that the guilty state of mind is an intention to commit it, it seems to me to follow as a matter of inexorable logic that there is no room either for a ‘defence’ of honest belief or mistake, or of a defence of honest and reasonable belief and mistake. Either the prosecution proves that the accused had the requisite intent, or it does not. In the former case it succeeds, and in the latter it fails. Since honest belief clearly negatives intent, the reasonableness or otherwise of that belief can only be evidence.’
Lord Simon of Glaisdale said: ‘ By ‘crimes of basic intent’ I mean those crimes whose definition expresses (or, more often, implies) a mens rea which does not go beyond the actus reus. The actus reus generally consists of an act and some consequence. The consequence may be very closely connected with the act or more remotely connected with it: but with a crime of basic intent the mens rea does not extend beyond the act and its consequence however remote as defined in the actus reus. I take assault as an example of a crime of basic intent where the consequence is very closely connected with the act. The actus reus of assault is an act which causes another person to apprehend immediate and unlawful violence. The mens rea corresponds exactly. The prosecution must prove that the accused foresaw that his act would probably cause another person to have apprehension of immediate and unlawful violence or would possibly have that consequence, such being the purpose of the act, or that he was reckless as to whether or not his act caused such apprehension. This foresight (the term of art is ‘intention’) or recklessness is the mens rea in assault.
For an example of a crime of basic intent where the consequence of the act involved in the actus reus as defined in the crime is less immediate, I take the crime of unlawful wounding. The act is, say, the squeezing of a trigger. A number of consequences (mechanical, chemical, ballistic and physiological) intervene before the final consequence involved in the defined actus reus-namely, the wounding of another person in circumstances unjustified by law. But again here the mens rea corresponds closely to the actus reus. The prosecution must prove that the accused foresaw that some physical harm would ensue to another person in circumstances unjustified by law as a probable (or possible and desired) consequence of his act, or that he was reckless as to whether or not such consequence ensued.’
Lord Edmund-Davies, Lord Cross of Chelsea, Lord Hailsham of St. Marylebone, Lord Simon of Glaisdale, Lord Fraser of Tullybelton
[1976] AC 182, [1975] 1 All ER 8, [1975] UKHL 3
Bailii
Sexual Offences Act 1956 1
England and Wales
Citing:
Cited – Regina v Weston 1879
. .
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 – 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 – 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 – Regina v Hyam HL 1974
The defendant had burnt down the house of her rival in love, thereby killing her children. The judge directed the jury to convict the defendant of murder if she knew that it was highly probable that her act would cause death or serious bodily harm. . .
Cited – Regina v Chisam CCA 1963
A defendant’s belief founding a plea of self defence must be both honest and reasonable. A sufficient justification was established if the accused genuinely believed on reasonable grounds that a relative or friend was in imminent danger of injury, . .
Cited – Regona v Sperotto and Salvietti 1970
(Court of Criminal Appeal of New South Wales) The court considered the mental element in the crime of rape: ‘In all crimes at common law a guilty intention is a necessary element and with the crime of rape this intention is to have carnal knowledge . .
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 – Regina v Gould CACD 1968
Diplock LJ said: ‘In its criminal jurisdiction, which it has inherited from the Court of Criminal Appeal, the Court of Appeal does not apply the doctrine of stare decisis with the same rigidity as in its civil jurisdiction. If upon due consideration . .
Cited – Rex v Steane 1947
The defendant was charged with an offence requiring an ‘ulterior intent’, which he denied having.
Held: Lord Goddard discussed the direction to the jury: ‘if on the totality of the evidence there is room for more than one view as to the intent . .
Cited – Regina v King 1964
. .
Cited – Regina v Wright 1864
The defendant faced charges of rape and of assault with intent to commit rape. The court was asked whether a jury could convict without being convinced that rape was in his mind.
Held: Channell B directed the jury: ‘even to convict of an . .
Cited – Regina v Horton 1871
The defendant was convicted of bigamy.
Held: Whilst there is a presumption that he knew of the circumstamnces creating the offence, that presumprion was not conclusive. . .
Cited – Regina v Flattery 1877
The victim of the rape alleged that she had agreed to a surgical procedure which she hoped would cure her fits.
Held: Denman J said: ‘There is one case where a woman does not consent to the act of connection and yet the man may not be guilty . .
Cited – Regina v Hornbuckle 1945
The defendant answered the charge of rape by saying that he had been drunk.
Held: Lowe J said: ‘To hold that knowledge that the act of intercourse was occurring sufficiently establishes the intent, [to have intercourse without consent] because . .
Cited – Regina v Buries 1947
The defendant said in answer to a charge of rape that he knew he had the woman’s consent because both by word and by deed she plainly told him so. The jury clearly disbelieved him. On appeal he asked the court whether the jury should have been . .
Cited – Regina v King 1964
. .
Cited – Regina v Flaherty and Others 1968
Asprey J considered the mistakae as to the woman’s consent as a defence to a charge of rape: ‘a long line of authority establishes, at any rate so far as I am concerned, that the defence of mistake requires that the accused holds both an honest and . .
Cited – Regina v Daly 1968
The court considered the availability of mistake as to consent as a defence to a charge of rape: ‘What the learned trial judge did in the present case was to omit from the definition of rape that he gave to the jury all reference to the element of . .
Cited – Devlin v Armstrong CANI 1971
The defendant faced a charge of riot. He said that he had held an honest and reasonable belief that the police were about to behave unlawfully.
Held: The Court assumed that the accused did honestly and reasonably so believe, but held that for . .
Cited – Regina v Flannery and Prendergast 1969
(Supreme Court of Victoria) On the defendant’s trial for rape, the judge directed the jury: ‘It is a defence in a charge of rape if a person honestly believed on reasonable grounds that the girl in fact was a consenting party. That involves three . .
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 . .
Applied – 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, . .
Limited – 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 . .
Applied – 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 – B (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 . .
Cited – Ashley 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 . .
Cited – Ashley 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 . .
Cited – Director of Public Prosecutions v Majewski HL 1976
The defendant took a cocktail of drink and drugs and, whilst intoxicated, assaulted pub landlord. He said that he did not know what he was doing, and had no mens rea, that self-induced intoxication could be a defence to a charge of assault, and that . .
Cited – Regina v Cogan and Another CACD 9-Jun-1975
The defendants appealed againts their convictions for rape and against sentence. The victims was the second defendant’s wide.
Held: Applying Morgan, the first defendant’s belief that the victim was consenting was an answer to the charge. His . .
Lists of cited by and citing cases may be incomplete.
Crime
Leading Case
Updated: 02 November 2021; Ref: scu.186843