R V K - Case Law - VLEX 793089737

• Crime and Sentencing
• Nature of Offence

• Practice and Procedure
• Hearing

[2001] UKHL 41

Lord Bingham of Cornhill

Lord Nicholls of Birkenhead

Lord Steyn

Lord Hobhouse of Wood-borough

Lord Millett

HOUSE OF LORDS

My Lords,

The appellant K was indicted on a single count of indecent assault committed against a girl C who at the time was aged 14, contrary to section 14(1) of the Sexual Offences Act 1956. His defence was to be that the sexual activity between him and C was consensual, that she had told him she was 16 and that he had had no reason to disbelieve her. He is a man of good character, aged 26 at the date of the offence charged against him. Before the trial a preliminary issue was raised on behalf of K: whether, to establish K's guilt under the section, the prosecution had to prove that at the time of the incident K did not honestly believe that C was 16 or over. Argument on this issue was heard by his Honour Judge Thorpe at the Chichester Crown Court. He ruled, in favour of K, that the prosecution did have to prove an absence of genuine belief on the part of the accused that the victim was aged 16 or over. In so ruling the judge relied on the recent decision of the House of Lords in B (A Minor) v Director of Public Prosecutions [2000] 2 AC 428. The prosecution appealed against that ruling under section 35 of the Criminal Procedure and Investigations Act 1996. The Court of Appeal (Criminal Division) (Roch LJ, Rougier and Gray JJ) allowed the appeal and held that such absence of genuine belief did not have to be proved. The court certified the following point of law of general public importance:

"(a) Is a defendant entitled to be acquitted of the offence of indecent assault on a complainant under the age of 16 years, contrary to section 14(1) of the Sexual Offences Act 1956, if he may hold an honest belief that the complainant in question was aged 16 years or over?

(b) If yes, must the belief be held on reasonable grounds?"

Leave to appeal was refused by the Court of Appeal but granted by the House.

Section 14 of the 1956 Act is in these terms:

"(1) It is an offence, subject to the exception mentioned in subsection (3) of this section, for a person to make an indecent assault on a woman.

(2) A girl under the age of sixteen cannot in law give any consent which would prevent an act being an assault for the purposes of this section.

(3) Where a marriage is invalid under section two of the Marriage Act, 1949, or section one of the Age of Marriage Act, 1929 (the wife being a girl under the age of sixteen), the invalidity does not make the husband guilty of any offence under this section by reason of her incapacity to consent while under that age, if he believes her to be his wife and has reasonable cause for the belief.

(4) A woman who is a defective cannot in law give any consent which would prevent an act being an assault for the purposes of this section, but a person is only to be treated as guilty of an indecent assault on a defective by reason of that incapacity to consent, if that person knew or had reason to suspect her to be a defective."

This section is matched by a parallel section, section 15, which makes it an offence for a person to make an indecent assault on a man. Subsections (2) and (3) of section 15 are to the same effect, in relation to men, as subsections (2) and (4) in relation to women.

If the provisions of section 14 were part of a single, coherent legislative scheme and were read without reference to any overriding presumption of statutory interpretation, there would be great force in the simple submission which Mr Scrivener, resisting this appeal on behalf of the crown, based upon them: subsections (3) and (4) define circumstances in which a defendant's belief, knowledge or suspicion exonerate a defendant from liability for what would otherwise be an indecent assault; if it had been intended to exonerate a defendant who believed a complainant to be 16 or over, this ground of exoneration would have been expressed in subsection (2); the omission of such a provision makes plain that no such ground of exoneration was intended.

It is, however, plain that section 14 was not part of a single, coherent legislative scheme. The 1956 Act was a consolidation Act. Its provisions derived from diverse sources. The rag-bag nature of the 1956 Act and its predecessor statutes has been the subject of repeated comment: see, for example, the observations of the draftsman of the 1861 Act quoted in B (A Minor) v Director of Public Prosecutions [2000] 2 AC 428, 473D; the criticisms of Lord Nicholls of Birkenhead in the same case, at p 465G; the description of the Act by Professor Lacey as "a patchwork of pre-existing offences" in [2001] Crim LR 3, at p 3; the recognition of the Home Office in "Setting the Boundaries, Reforming the law on sex offences" (July 2000, vol 1, para 3.2.3) that the present legislation "does not form a coherent code".

Section 14(1) derives from section 52 of the Offences against the Person Act 1861. At common law there was no offence of indecent assault. Section 52 of the 1861 Act criminalised "any indecent assault upon any female". The maximum penalty was two years' imprisonment. Since conduct is not generally an assault in law if done with the consent of the alleged victim, it seems clear that the consent of the victim, whatever her age, defeated a charge under this section as originally enacted.

Plainly this provision gave inadequate protection to children, whose inherent immaturity was understandably regarded as impairing any consent they might give. There was legitimate public concern when a defendant accused of indecently assaulting a child of 6 years relied successfully on the consent of the child. There could have been no belief on the defendant's part that the child was over the age of consent, so that issue did not arise. In the Criminal Law Amendment Act 1880 (43 & 44 Vict, c45) it was provided that it should be no defence to a charge of indecent assault on a young person under the age of 13 to prove that he or she consented to the act of indecency. This provision was re-enacted in section 1 of the Criminal Law Amendment Act 1922 (with an increase of the age to 16). It is the source of section 14(2).

Until 1929 England and Wales adhered to the old canon law rule that boys could be married at 14 and girls at 12. The Age of Marriage Act of that year provided that a marriage between persons either of whom was under the age of 16 should be void. This enactment was subject to a proviso that in any proceedings against a person charged under section 5(1) of the Criminal Law Amendment Act 1885 (48 & 49 Vict, c69) or with indecent assault it should be a sufficient defence to prove that at the time when the offence was alleged to have been committed he had reason to believe that the alleged victim was his wife. This proviso was repealed by the Marriage Act 1949 (which re-enacted the age limit) but the repeal was itself repealed in 1953. Section 14(3) thus derives from sources quite different from the other provisions of the 1956 Act with which the House is concerned.

Section 14(4) derives from section 56(3) of the Mental Deficiency Act 1913 which provided that no consent should be any defence in any proceedings for an indecent assault upon any defective, if the accused knew or had reason to suspect that the person in respect of whom the offence was committed was a defective.

Since the 1956 Act was a consolidation Act, with corrections and improvements to the expression but not to the substance of existing provisions (see generally Halsbury's Laws of England, 4th ed reissue, vol 44( 1) (1995), para 1247), it is not surprising that the terms of section 14 reflected their miscellaneous origins. But that section cannot properly be considered in isolation. Section 50 of the 1861 Act made unlawful carnal knowledge of a girl under the age of 10 a felony punishable by penal servitude for life. Section 51 made unlawful carnal knowledge of a girl aged 10 or 11 a misdemeanour punishable by up to three years' penal servitude. It was these sections to which Blackburn J, with the concurrence of nine other judges, referred in the course of his ruling in R v Prince (1875) LR 2 CCR 154, 171-172 that for purposes of section 55 of the 1861 Act it was no defence for a defendant charged with taking an unmarried girl under the age of 16 out of the possession of her father to establish a reasonable belief that she was over 16:

"It seems impossible to suppose that the intention of the legislature in those two sections could have been to make the crime depend upon the knowledge of the prisoner of the girl's actual age. It would produce the monstrous result that a man who had carnal connection with a girl, in reality not quite ten years old, but whom he on reasonable grounds believed to be a little more than ten, was to escape altogether. He could not, in that view of the statute, be convicted of the felony, for he did not know her to be under ten. He could not be convicted of the misdemeanour, because she was in fact not above the age of ten. It seems to us that the intention of the legislature was to punish those who had connection with young girls, though with their consent, unless the girl was in fact old enough to give a valid consent. The man who has connection with a child, relying on her consent, does it at his peril, if she is below the statutable age."

But the law did not rest there. By section 5 of the Criminal Law Amendment Act 1885 it was provided that:

"Any person who -

(1) Unlawfully and carnally knows or attempts to have unlawful carnal knowledge of any girl being of or above the age of thirteen years and under the age of sixteen years; or …

shall be guilty of a misdemeanour, and being...

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