R v Prince [1874-80] All ER Rep 881 considered.

The Facts

The defendant was charged with inciting a girl aged under 14 to commit an act of gross indecency with him contrary to section 1(1) of the 1960 Act. At his trial he initially pleaded not guilty. It was admitted that:

He honestly believed that she was over 14.

At the start of the trial the justices were asked to rule as to whether his state of mind constituted a defence to the charge. They ruled that it did not. He changed his plea to guilty. The question for the opinion of the High Court was whether the justices were correct in convicting him when he had held an honest belief that the girl was over 14.

The Law

Section 1(1) of the 1960 Act said nothing about the mental element. Accordingly, the starting-point for a court was the established common law presumption that a mental element, traditionally labelled "mens rea", was an essential ingredient unless Parliament had indicated a contrary intention either expressly or by necessary implication: see Sweet v Parsley.

Where a defendant had acted under a mistaken view of the facts, the presumption had been expressed traditionally in terms that an honest mistake did not avail him unless it had been made on reasonable grounds: see R v Tolson (1889) 23 QBD 168, 181 and Bank of New South Wales v Piper (1897) AC 383, 389-390. In Sweet v Parsley, Lord Diplock had said (at p 163):

"... a general principle of construction of any enactment, which creates a criminal offence, [is] that ... the words ... are ... to be read as subject to the implication that a necessary element in the offence is the absence of a belief, held honestly and upon reasonable grounds, in the existence of facts which, if true, would make the act innocent."

The "reasonable belief" school of thought had held unchallenged sway for many years. But over the last quarter of a century there had been several important cases where the courts had preferred the "honest belief" approach, placing new, or renewed, emphasis on the subjective nature of the mental element.

When mens rea was ousted by a mistaken belief, it was as well ousted by an unreasonable belief as by a reasonable belief: see R v Kimber [1983] 1 WLR 1118, 1122 and R v Williams (Gladstone) [1987] 3 All ER 411, 415: see also R v Morgan [1976] AC 182; R v Kimber [1983] 1 WLR 1118; Beckford v The Queen [1988] AC 130; and Blackburn v Bowering [1994] 1 WLR 1324). Considered as a matter of principle, the honest belief approach must be preferable. By definition, the mental element in a crime was concerned with a subjective state of mind, such as intent or belief.

To the extent that an overriding objective limit ("on reasonable grounds") was introduced, the subjective element was displaced. The traditional formulation of the common law presumption, in so far as it envisaged that a mistaken belief had to be based on reasonable grounds, was out of step with recent authority. It seemed to be a relic from the days when a defendant could not give evidence in his own defence. It was not surprising that in those times juries had judged a defendant’s state of mind by the conduct to be expected of a reasonable person. The formulation had now to be modified, otherwise it would not be an accurate reflection of the current state of the criminal law regarding mistakes of fact.

Lord Diplock’s dictum had in future to be read as though the reference to reasonable grounds were omitted. "Necessary implication" connoted an implication that was compellingly clear. It might be found in the language used, the nature of the offence, the mischief sought to be prevented and any other circumstances that might assist in determining what intention was properly to be attributed to Parliament.

The statutory context of section 1 apart, there was no great difficulty. The section had created an entirely new criminal offence, in simple unadorned language. It was a serious offence. The more serious the offence, the greater was the weight to be attached to the presumption, because the more severe was the punishment and the graver the stigma that accompanied a conviction.

Further, the offence was drawn broadly. It could embrace conduct ranging from predatory approaches by a much older paedophile to consensual sexual experimentation between precocious teenagers of whom the offender might be the younger.

The conduct might be depraved by any acceptable standard, or it might be relatively innocuous behaviour in private between two young people.

Those factors reinforced, rather than negatived, the application of the presumption.

The purpose of the section was, of course, to protect children. An age ingredient had, therefore, been an essential ingredient of the offence. That factor in itself did not assist greatly. Without more, it did not lead to the conclusion that liability had been intended to be strict so far as the age element was concerned, so that the offence was committed irrespective of the offender’s belief about the age of the victim and of how he had come to hold that belief.

Nor could much weight be attached to a fear that it might be difficult sometimes for the prosecution to prove that the defendant had known that the child was under 14 or had been recklessly indifferent about its age: see Thomas v The King [1937] 59 Crim LR 279, 309: "... a lack of confidence in the ability of a tribunal correctly to estimate evidence of states of mind and the like can never be sufficient ground for excluding from inquiry the most fundamental element in a rational and humane criminal code." Similarly, it was far from clear that strict liability regarding the age ingredient would further the purpose of section 1 more effectively than would be the case if a mental element were read into the offence. There was no general agreement that strict liability was necessary to the enforcement of the law protecting children in sexual matters.

The statutory background was the Crown’s strongest point. The Crown had submitted that the law in this field had been regarded as settled for well over 100 years, ever since R v Prince [1875] LR 2 CCR 154, that the Sexual Offences Act 1956 had not been intended to change that established law and that section 1 of the 1960 Act was to be read with the 1956 Act.

In this field, where Parliament intended belief as to age to be a defence, that was stated expressly: see, for instance, the "young man’s defence" in section 6(3) of the 1956 Act. That was a formidable argument, but his Lordship could not accept it. Leaving on one side Counsel for the defendant's sustained criticisms of the reasoning in R v Prince and R v Maughan [1934] 24 Cr App R 130, where the Crown’s argument broke down was that the motley collection of offences, of diverse origins, gathered into the 1956 Act displayed no satisfactorily clear or coherent pattern. If the interpretation of section 1 of the 1960 Act was to be gleaned from the contents of another statute, that other statute had to give compelling guidance.

The 1956 Act as a whole fell short of that standard. So did sections 14 and 15, which had been the genesis of section 1. Accordingly, the Court could not find, either in the statutory context or otherwise, any indication of sufficient cogency to displace the application of the common law presumption. The necessary mental element regarding the age ingredient in section 1 of the 1960 Act was the absence of a genuine belief by the accused that the victim was 14 or above. The burden of proof of that rested on the prosecution in the usual way.

If Parliament considered that the position should be otherwise regarding this serious social problem, it had itself to confront the difficulties and express its will in clear terms.

LORD HUTTON, also concurring in allowing the appeal, said that he shared the regret of Lord Justice Brooke that Parliament did not take account of the expert advice that it had received over the years from the Criminal Law Revision Committee and the Law Commission and did not address its mind, in enacting legislation creating or restating criminal offences, to the issue whether mens rea should be a constituent part of the offences and did not state in clear terms whether or not mens rea was required.

The Decision

For a conviction under section 1(1) of the Indecency with Children Act 1960 it was necessary for the prosecution to prove the absence of a genuine belief on the part of the accused, which did not have to be on reasonable grounds, that the victim was 14 or over. The House of Lords allowed an appeal by the defendant from the Queen’s Bench Divisional Court which had dismissed his appeal by case stated against his conviction at Youth Court.

Comment

In the early 1950s a lacuna in this type of legislation became apparent. A man 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. The Court of Criminal Appeal held that an invitation to another person to touch the invitor could not amount to an assault on the invitee. As the man had done nothing to the girl which, if done against her will, would have amounted to an assault on her, the man’s conduct did not constitute an indecent assault on the girl. That was Fairclough v Whipp [1951] 2 All ER 834. Two years later the same point arose and was similarly decided regarding a girl aged 11: see DPP v Rogers [1953] 2 All ER 644,[1953] 1 WLR 1017. Following a report of the Criminal Law Revision Committee in August 1959 (First Report (Indecency with Children)(Cmnd 835), Parliament enacted the Indecency with Children Act 1960. Prior to the Lords ruling it had been held that a genuine belief that a child was 14 will not be a defence to a charge under s. 1 (1).

This offence was enacted to deal with occasions where no contact is actually made with the child or where the defendant is passive. It can be committed by masturbating in the presence of children (provided the defendant knows that the children are aware of what is going on R v Francis [1988] 88 Cr App R 127 and also by inviting children to touch one's genitals R v Speck [1977] 2 All ER 859.

The facts of Speck were a girl aged eight came up to the defendant who was sitting in a chair, put her hand on his penis outside his trousers and left it there for about five minutes. In consequence of the pressure of the child’s hand the defendant had an erection. The defendant remained inactive throughout the child’s activity and did nothing to encourage her act. He did not however remove her hand.

The defendant was charged with gross indecency with a child, contrary to s 1(1) of the Indecency with Children Act 1960. The judge proposed to direct the jury that where a man deliberately suffered a child’s hand to remain on his penis for a substantial period so that he had an erection the man would be guilty of an offence under s 1(1) of the 1960 Act, if the jury were satisfied that the particular act or conduct in question amounted to gross indecency. On the basis of that ruling the defendant pleaded guilty and was convicted. He appealed against the conviction contending, inter alia, that the proposed direction was wrong in law since mere inactivity could not constitute an act of gross indecency within s 1(1) of the 1960 Act.

Held – Inactivity by the man was capable of amounting to an invitation to the child to undertake the act done by the child. If the circumstances justified the view that his inactivity did amount to an invitation to the child to continue to do the act she was doing, that constituted sufficient activity on the part of the man to justify a conviction of gross indecency under s 1(1) of the 1960 Act. Accordingly, the proper direction should have been that the defendant’s conduct might, rather than would, constitute an offence under s 1(1) of the 1960 Act if the jury took the view that the conduct amounted to an invitation from the defendant to the child to continue the activity in question. It followed that insofar as the judge had proposed to direct the jury that the defendant’s conduct would constitute an offence under s 1(1) of the 1960 Act it would have been a misdirection. Since, however, if properly directed, the jury would have convicted the defendant, there had been no miscarriage of justice and the appeal would therefore be dismissed

There will be occasions where the distinction between this offence and the more general one of indecent assault is difficult to make see R v Sargeant [1997] 161 JP 127.

Leaving notes in a public lavatory trying to encourage young boys to get in touch with the defendant was held not to amount to an attempt at committing the above offence, even though the defendant's ultimate motive in meeting the boys was to commit acts of gross indecency with them R v Rowley [1991] 4 All ER 649.

The facts were, Rowley left notes in public places over a period of three weeks offering money and presents to boys. The Crown alleged that the notes were designed to lure boys for immoral purposes, but there was nothing lewd, obscene or disgusting in the notes. Rowley was charged with committing acts outraging public decency and attempted incitement of a child under the age of 14 years to commit an act of gross indecency contrary to s 1(1) of the Criminal Attempts Act 1981. Entries were found in Rowley's diary indicating a desire for sexual activity with boys and linking him with the notes.

At his trial he submitted that the writing and placing of the notes could not support charges of outraging public decency and that with regard to the attempted incitement to commit gross indecency the acts done were no more than preparatory to the commission of an offence. The judge rejected those submissions, admitted the dairy entries in evidence and directed the jury in his summing up that they were entitled to look at the purpose behind the notes in deciding whether they were lewd or disgusting. Rowley was convicted on five counts of committing acts outraging public decency and one count of attempted incitement to commit gross indecency.

He appealed on the grounds that the judge had erred in holding that writing and placing the notes were acts which outraged public decency, in admitting evidence of the appellant’s diary and in his direction to the jury.

Held - The common law offence of committing an act outraging public decency consisted of the deliberate commission of an act which was in itself of a lewd, obscene or disgusting nature and outraging public decency. The issue to be decided was whether a member of the public was outraged by the act itself, and the intention and motive for doing an act could not supply lewdness or obscenity to an act which in itself lacked those qualities. It followed that Rowley’s motive or purpose in leaving the notes was irrelevant and since there was nothing in the notes themselves capable of outraging public decency the convictions relating to the charges of committing acts outraging public decency would be quashed. Furthermore, since the notes went no further than to seek to engineer preliminary meetings with boys and contained no proposition or incitement they could not be regarded as more than a preparatory act even on the assumption that the Rowley’s ultimate intention was gross indecency. Accordingly, the conviction of attempting to incite a child under the age of 14 years to commit an act of gross indecency would also be quashed

Sections 1 and 2 of the Criminal Evidence (Amendment) Act 1997 also apply to this offence (and to conspiracies, attempts or incitements in the circumstances set out in that Act.

Rob Jerrard

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