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On 7 March 2013 the Supreme Court will revisit the vexed question of strict liability for sexual offences. In R v Brown five Justices must decide whether the Criminal Law Amendment Act 1885, s 4, which made it an offence to have carnal knowledge of a girl under the age of 14, included any requirement of mens rea (guilty knowledge) in relation to the victim’s age.
The House of Lords considered similar questions in relation to incitement to perform grossly indecent acts (B v DPP [2000] UKHL 13) and indecent assault (R v K [2001] UKHL 41). Although the 1885 Act is no longer in force, the Court’s judgment has the potential to inform the interpretation of many other criminal offences.
Factual background
Shortly before his 18th birthday the appellant had consensual sexual intercourse with a 13 year-old girl. He claimed he believed the girl was 15. The appellant was prosecuted and pleaded guilty to an offence under s 4 of the 1885 Act. This provided:
‘Any person who unlawfully and carnally knows any girl under the age of fourteen years shall be guilty of felony, and being convicted thereof shall be liable to be imprisoned for life or to be fined or both.’
The case proceeded on the basis that an honest but mistaken belief that the victim was over 14 was irrelevant under s 4. The appellant subsequently appealed his conviction on the ground that, on a proper analysis, s 4 was not a strict liability offence.
Judgment of the Court of Appeal in Northern Ireland
In a short judgment the Court of Appeal in Northern Ireland upheld the conviction and ruled that s 4 was indeed an offence of strict liability.
In R v K Lord Steyn said it was ‘a constitutional principle of general application’ that whenever a statute is silent as to mens rea, there is a presumption that the section must be interpreted as requiring mens rea. The presumption is not dependent on ambiguity in the statutory wording and can only be displaced by specific language – i.e. by an express provision or a necessary implication. Similarly, in B v DPP Lord Hutton emphasised that:
‘ . . . the test is not whether it is a reasonable implication that the statute rules out mens rea as a constituent part of the crime – the test is whether it is a necessary implication’.
In its original form s 4 established an offence of carnal knowledge with a girl under the age of 13 years. The offence was silent on mens rea. S 5 established a parallel offence of carnal knowledge with a girl over 13 years but below 16 years. However that section contained a defence if the defendant had reasonable cause to believe the girl was 16 or over. S 6 (which dealt with the criminal liability of owners of premises where young girls were carnally known) and s 7 (which dealt with abduction of females) also contained defences based upon reasonable cause to believe that the victim was 16 or over.
The Court of Appeal said it was clear the legislature had deliberately omitted any defence based upon the defendant’s belief about the age of the child from s 4. To imply such a requirement into the original enactment would therefore be contrary to the parliamentary intent.
Several decades after the 1885 Act Parliament passed the Criminal Law (Amendment) Act (Northern Ireland) 1923. The 1923 Act deleted the defences based on reasonable belief from ss 5 and 6. It left s 4 untouched.
The appellant submitted that by deliberately repealing the defences, the context had now changed and the argument for the displacement of the presumption had been undermined. Following the 1923 Act, ss 4 to 6 of the 1885 Act were now silent on mens rea. The presumption requiring mens rea did not apply to ss 5 and 6 (because the express words of the 1923 Act were inconsistent with that presumption). However it did apply to s 4 (which the Act said nothing about).
The Court of Appeal rejected the appellant’s argument. Morgan LCJ said the 1923 Act was concerned solely with the defences based on reasonable belief under ss 5 and 6. The methodology used by Parliament to remove those defences had no effect on any other sections of the 1885 Act. It followed that s 4 remained, as before, an offence of strict liability.
Strict liability in criminal cases
Statutes establishing criminal offences frequently say nothing about the state of mind required to establish guilt. It therefore falls to the courts to determine what mental element (if any) the offences involve.
The presumption of mens rea affirmed in R v K and B v PP is a strong one. Professor David Ormerod has suggested that all offences of strict liability may be vulnerable to challenge following the ‘twenty-first century revitalized presumption of mens rea’ declared by the House of Lords.[1]
Nevertheless, the appellant faces an uphill battle to overturn his conviction. In R v G [2008] UKHL 37 the House of Lords considered the mens rea requirement for the equivalent offence of rape of a child under 13 under the Sexual Offences Act 2003, s 5. G (a 15 year-old boy) pleaded guilty to an offence under s 5 in circumstances where the victim (a 12 year-old girl) had consented to intercourse and G had reasonably believed that she was older than 13.
The House of Lords said s 5 created an offence of strict liability. Lord Hope explained:
‘The offence which the section creates is one of strict liability in the sense that proof of the intentional penetration of a child under 13 is all that is needed for a conviction. Mistake as to age is a defence in the case of offences committed against older children. In the case of children under 13 it is not. This must be taken to have been a deliberate choice by Parliament which, under domestic law, it was entitled to take. The principle which has been applied is that intentional sexual activity of the proscribed kind with children below that age should not be permitted in any circumstances.’
Lady Hale similarly said:
‘There is nothing unjust or irrational about a law which says that if he chooses to put his penis inside a child who turns out to be under 13 he has committed an offence (although the state of his mind may again be relevant to sentence).’
While R v Brown concerns the interpretation of an obsolete nineteenth century statute, it also raises an issue of wider importance for the criminal law: when does the law punish honest mistakes? Strict liability for criminal offences is a controversial concept, particularly where crimes bear heavy penalties and conviction carries a heavy stigma. Recent years have seen a proliferation of criminal legislation, much of which is silent about mens rea. The outcome of R v Brown is therefore awaited with interest.
Edward Craven is a barrister at Matrix Chambers.
