DIRECTOR OF PUBLIC PROSECUTIONS (RESPONDENT)
v.
MORGAN (APPELLANT)
DIRECTOR OF PUBLIC PROSECUTIONS (RESPONDENT)
v.
mcdonald (appellant)
DIRECTOR OF PUBLIC PROSECUTIONS (RESPONDENT)
DIRECTOR OF PUBLIC PROSECUTIONS (RESPONDENT)
v.
PARKER (APPELLANT)
Lord Cross of Chelsea
Lord Hailsham of St. Marylebone
Lord Simon of Glaisdale
Lord Edmund-Davies
Lord Fraser of Tullybelton
Lord Cross of Chelsea
MY LORDS,
The facts of this case are set out in the speeches of my noble and learned
friends, Lord Hailsham of St. Marylebone and Lord Edmund-Davies. The
question of law which is raised by the appeal is whether the judge was right
in telling the jury that, if they came to the conclusion that Mrs. Morgan had
not consented to the intercourse in question but that the defendants believed
or may have believed that she was consenting to it, they must nevertheless
find the defendants guilty of rape if they were satisfied that they had no
reasonable grounds for so believing. If the direction given by the judge was
wrong in law, the further question arises whether the case is one in which the
conviction should stand notwithstanding the misdirection by virtue of the
proviso to section 2(1) of the Criminal Appeal Act 1968. The Sexual
Offences Act 1956 which provides by section 1(1) that it is an offence ” for a
” man to rape a woman ” contains no definition of the word ” rape “. No
one suggests that rape is an ” absolute ” offence to the commission of which
the state of mind of the defendant with regard to the woman’s consent is
wholly irrelevant. The point in dispute is as to the quality of belief which
entitles the defendant to be acquitted and as to the ” evidential ” burden of
proof with regard to it.
The submissions of counsel for the appellants can be summarised as
follows: —
” When it is said—as it was for example by Stephen J. in R. v.
” Tolson 23 Q.B.D. 168 at 185—that the mental element in rape is an
” intention to have intercourse without the woman’s consent that means
” not simply an intention to have intercourse with a woman who is not
” in fact consenting to it but an intention to have non-consensual inter-
” course, not, of course, in the sense that it must be shown that the
” defendant would have been unwilling to have had intercourse with the
” woman if he had thought that she was consenting to it, but in the
” sense that he was either aware that she was not consenting or did not
” care whether or not she consented. That does not mean that the
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” Crown is obliged to adduce positive evidence as to the defendant’s
” state of mind. If it adduces evidence to show that intercourse took
” place and that the woman did not consent to it then in the absence of
” any evidence from the defendant the jury will certainly draw the
” inference that he was aware that she was not consenting. So as a
” practical matter he is bound—if he wishes to raise the point—to give
” evidence to the effect that he believed that she was consenting and as
” to his reasons for that belief; and the weaker those reasons are the
” more likely the jury is to conclude that he had no such belief. But the
” issue as to the accused’s belief in the woman’s consent is before the
” jury from the beginning, and is an issue in respect of which the
” evidential burden is on the Crown from first to last. There is never
” any question of any evidential burden with regard to it being on the
” accused or of the judge withdrawing it from the jury.”
The submissions of counsel for the Director can be summarised as
follows: —
” When it is said that the ” mens rea ” in rape means an intention to
” have intercourse without consent that means no more than that the
” intercourse must be intentional. Rape is in fact analogous to bigamy
” where the offence is defined as going through a ceremony of marriage
” when you are in fact married to someone else. But though the Crown
” discharges the evidential burden which is on it when it adduces, in a
” case of rape, evidence of intercourse and lack of consent, or, in a case
” of bigamy, evidence of marriage during the subsistence of an earlier
” marriage, R. v. Tolson shows that it is open to the defendant on
” general principles of criminal liability, not in any way confined to rape
” or bigamy, to raise the defence that he had reasonable grounds for
” believing that the woman was consenting or that his earlier marriage
” was no longer subsisting, as the case may be. If he raises such a
” defence then since the evidential burden of establishing it is on him the
” judge must rule whether the evidence of belief on reasonable grounds
” is sufficient to justify the defence being put to the jury. If he rules
” that it is then the onus is on the Crown to satisfy the jury that the
” defendant in fact either had no such belief or had no reasonable
” grounds for entertaining it.”
Before I turn to consider which of these rival contentions is to be preferred
there are three matters to which I would refer. The first relates to the
judgment of the Court of Appeal. I am not, I believe, alone among your
Lordships in finding that judgment hard to follow. I have no doubt that
the Court rejected the submissions of the appellants but whether they accepted
the contention advanced by the respondent that rape consists simply in inten-
tionally having intercourse with a woman who does not in fact consent, or
whether they were putting forward some other definition of the offence, and,
if so, what that other definition was, I really do not know.
Secondly, I would say something as to how far—if at all—the decision in
R. v. Tolson, which was, of course, a case of bigamy, has a bearing on this
case. The statute there provided that ” who ever being married shall marry
” any other person during the life of the former husband or wife shall be
” guilty of felony ” with a proviso that: —
” nothing in this section contained shall extend to any person marrying
” a second time whose husband or wife shall have been continually
” absent from such person for the space of seven years then last past,
” and sha11 not have been known by such person to be living within that
“time.”
The defendant who was found by the jury to have had reasonable grounds
for believing that her husband was then dead—though in fact he was not—
went through a ceremony of marriage with another man within seven years
of the time when she last knew of his being alive. She therefore fell within
the very words of the statute. Nevertheless, the majority of the Court of
Crown Cases Reserved held that she was entitled to be acquitted because on
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general principles of criminal liability, having no particular relation to the
crime of bigamy, a mistaken belief based on reasonable grounds in the
existence of facts, which, if true, would have made the act charged against
her innocent, afforded her a defence since it was not to be supposed that
Parliament intended bigamy to be an ” absolute ” offence to the commission
of which the state of mind of the defendant was wholly irrelevant. The
minority of the judges, on the other hand, thought that the existence of the
proviso which gave an express exemption from liability in certain circum-
stances made it impossible to imply an exemption from liability in other
circumstances not covered by it. If the Sexual Offences Act 1956 had
provided that it was an offence for a man to have sexual intercourse with
a woman who did not consent to it then the case of R. v. Tolson would
undoubtedly have been in point; but what the Act says is that it is an
offence for a man to ” rape ” a woman and, as I see it, one cannot say that
R. v. Tolson applies to rape unless one reads the words ” rape a woman ”
as equivalent to ” have intercourse with a woman who is not consenting
” to it”. Counsel for the Director says, of course, that they are equivalent
but the question remains whether he is right.
Finally, I must refer to an alternative submission, made by counsel for the
appellant—namely, that in R. v. Tolson the Court was wrong in saying that
to afford a defence to a charge of bigamy the mistaken belief of the defendant
had to be based on reasonable grounds. It is, of course, true that the
question whether a mistaken belief honestly held but based on no reasonable
grounds would have afforded a defence was not argued in that case. There
had been several conflicting decisions by judges on assize—one saying that
an honest belief would be a defence, others that a belief on reasonable
grounds would be a defence, and yet others that not even a belief on
reasonable grounds would be a defence. In R. v. Tolson Stephen J. asked
the jury whether they thought that the defendant in good faith and on
reasonable grounds believed her husband to be dead at the date of her
second marriage. Having obtained an affirmative answer he then, in order
to get the point settled by the Court of Crown Cases Reserved, directed the
jury—contrary to his own opinion—that such a belief would not be a defence
and, after they had duly convicted Mrs. Tolson, sentenced her to one day’s
imprisonment. On her appeal against her conviction, her counsel was not,
of course, concerned to dispute the view that a mistaken belief had to be
based on reasonable grounds, since the jury had held that his client had had
reasonable grounds for her belief, and the question whether an honest belief
would have been enough was never argued. If it had been argued, it is
possible that some of the judges who were in the majority—though having
regard to the way in which he framed his question, I do not think that
Stephen J. would have been one of them—might have held that a mistaken
belief honestly but unreasonably held was enough. But R. v. Tolson was
decided over eighty years ago. It is accepted as a leading authority in the
law of bigamy not only in this country (see R. v. King [1964] 1 Q.B. 285
and R. v. Gould [1968] 2 QB 65) but also in Australia (see Thomas v. JR.
59 C.L.R. 279). Moreover, the phrase ” an honest and reasonable belief
” entertained by the accused of the existence of facts, which, if true, would
” make the act charged against him innocent ” has been adopted on several
occasions as a definition of mens rea generally applicable to cases where the
offence is not an absolute one but the words defining it do not expressly or
impliedly indicate that some particular mens rea is required to establish it.
(See Bank of New South Wales v. Piper [1897] AC 383: by Lord Reid in
R. v. Warner [1969] 2 A.C. 256 at 268: and by Lord Diplock in Sweet v.
Parsley [1970] AC 132 at 164/165). Counsel did not refer us to any case
in which the propriety of the inclusion of the element of ” reasonableness ”
has been doubted ; and its inclusion was, in fact, approved in R. v. King and
by Lord Diplock in Sweet v. Parsley. So, even if I had been myself inclined
to think that the inclusion of the element of reasonableness was wrong, I
would not have thought it right for us to call it in question in this case. In
fact, however, I can see no objection to the inclusion of the element of
reasonableness in what I may call a ” Tolson ” case. If the words defining an
offence provide either expressly or impliedly that a man is not to be guilty
4
of it if he believes something to be true, then he cannot be found guilty if
the jury think that he may have believed it to be true, however inadequate
were his reasons for doing so. But, if the definition of the offence is on the
face of it ” absolute ” and the defendant is seeking to escape his prima facie
liability by a defence of mistaken belief, I can see no hardship to him in
requiring the mistake—if it is to afford him a defence—to be based on
reasonable grounds. As Lord Diplock said in Sweet v. Parsley, there is
nothing unreasonable in the law requiring a citizen to take reasonable care
to ascertain the facts relevant to his avoiding doing a prohibited act. To
have intercourse with a woman who is not your wife is, even today, not
generally considered to be a course of conduct which the law ought positively
to encourage and it can be argued with force that it is only fair to the
woman and not in the least unfair to the man that he should be under a duty
to take reasonable care to ascertain that she is consenting to the intercourse
and be at the risk of a prosecution if he fails to take such care. So if the
Sexual Offences Act 1956 had made it an offence to have intercourse with a
woman who was not consenting to it, so that the defendant could only escape
liability by the application of the “Tolson” principle, I would not have
thought the law unjust.
But, as I have 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. Rape, to my mind, imports at least
indifference as to the woman’s consent. I think, moreover, that in this
connection the ordinary man would distinguish between rape and bigamy.
To the question whether a man who goes through a ceremony of marriage
with a woman believing his wife to be dead, though she is not, commits
bigamy, I think that he would reply ” Yes,—but I suppose that the law
” contains an escape clause for bigamists who are not really to blame “.
On the other hand, to the question whether a man, who has intercourse with
a woman believing on inadequate grounds that she is consenting to it, though
she is not, commits rape, I think that he would reply “No. If he was
” grossly careless then he may deserve to be punished but not for rape “. That
being my view as to the meaning of the word ” rape ” in ordinary parlance,
I next ask myself whether the law gives it a different meaning. There is very
little English authority on the point but what there is—namely, the reported
directions of several common law judges in the early and the middle years
of the last century—accords with what I take to be the proper meaning of
the word. The question has been canvassed in a number of recent cases
in New South Wales and Victoria but there is only one of them—R. v. Daly
[1968] V.R. 257—that I find of much assistance. In none of the others do
the judges advert to the fact that to include an intention to have intercourse
whether or not the woman consents in the definition of rape and to say that a
reasonable mistake with regard to consent is an available defence to a charge
of rape are two incompatible alternatives which cannot be combined in a
single direction to a jury—as, incidentally, the judge combined them in one
passage in his summing up in this case. In R. v. Daly the Court, as well
as drawing that distinction which I regard as fundamental, indicated pretty
clearly that it thought—as I do—that the former approach to the problem
was the right one. For these reasons, I think that the summing up contained
a misdirection.
The question which then arises as to the application of the proviso is far
easier of solution. I suppose that cases may occur in which the problem
which was discussed at such length on this appeal may be of more than
academic interest but on the facts of this case it was of no practical importance
whatever. If the appellants when they came to give evidence had said that
what Mrs. Morgan had said was perfectly true, that she had never at any
5
stage given any sign that she was consenting to—let alone enjoying—the
intercourse, but that they were so much influenced by what her husband had
told them that they believed throughout that her manifestations of unwilling-
ness were only play acting, then it is conceivable that a jury, on a proper
direction, might have acquitted them. They might, that is to say, have said
to themselves that though it was almost incredible that any young men
could have been so stupid yet, having seen and heard them, they would give
them the benefit of the doubt. But the appellants chose—most unwisely—
to challenge the truth of Mrs. Morgan’s evidence and to assert that although
to start with she manifested some unwillingness when it came to the point
she co-operated in the proceedings with evident relish. So, as the judge
made clear at the outset of his summing up, the only real issue in the case
was whether what took place in the Morgan’s house that night was a
multiple rape or a sexual orgy. The jury obviously considered that the
appellants’ evidence as to the part played by Mrs. Morgan was a pack of
lies and one must assume that any other jury would take the same view
of the relative credibility of the parties. That any jury which thought that
the grounds for a belief in consent put forward by the defendants, which
if truly held would have been eminently reasonable, were in fact never
entertained by them at all, should in the same breath hold that they may
have had an honest belief in consent based on different and unreasonable
grounds is inconceivable. So I would apply the proviso and dismiss the
appeal.
Lord Hailsham of St. Marylebone
MY LORDS,
In Hyam v. D.P.P. [1974] 2 All E.R. 41 this House discussed the mental
element in murder. This appeal is concerned with the mental element in
rape. It involves two questions at vastly different levels of importance but
each strangely illustrative of the other, which were argued before us. The
first is a question of great academic importance in the theory of English
criminal law, certified for this House by the Court of Appeal, which also
gave leave to appeal. The second, which arises only if the first is answered
favourably to the appellants, is whether the House can be satisfied that no
miscarriage of justice has taken place so as to compel them to apply the
proviso to section 2(1) of the Criminal Appeal Act, 1968. As I propose
to answer these two questions, as to the first favourably, and as the second,
unfavourably to the appellants, and thus dismiss the appeals, I will begin
this opinion with the facts.
The four appellants were all convicted at the Stafford Crown Court
of various offences connected with alleged rapes upon the person of Daphne
Ethel Morgan of whom the first appellant is, or, at the material time was,
the husband. The second, third and fourth appellants were convicted each
of a principal offence against Mrs. Morgan, and each of aiding and abetting
the principal offences alleged to have been committed by each of the other
two. The appellant Morgan, who also had connexion with his wife allegedly
without her consent as part of the same series of events, was not charged
with rape, the prosecution evidently accepting and applying the ancient
common law doctrine that a husband cannot be guilty of raping his own
wife. Morgan was therefore charged with and convicted of aiding and
abetting the rapes alleged to have been committed by the other three.
Although each appellant was originally separately represented, their
appeals raise the same point, and they were accorded single representation
before this House. The question certified as being of general public impor-
tance by the Court of Appeal, and the only point of principle raised on
their behalf is:
” Whether, in rape, the defendant can properly be convicted notwith-
” standing that he in fact believed that the woman consented, if such
” belief was not based on reasonable grounds “.
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The question arises in the following way. The appellant Morgan and
his three co-defendants, who were all members of the R.A.F., spent the
evening of the 15th August, 1973, in one another’s company. The appellant
Morgan was significantly older than the other three, and considerably
senior to them in rank. He was, as I have said, married to the alleged
victim, but not, it seems at the time habitually sleeping in the same bed.
At this time, Mrs. Morgan occupied a single bed in the same room as her
younger son aged about eleven years, and by the time the appellants arrived
at Morgan’s house, Mrs. Morgan was already in bed and asleep, until she
was awoken by their presence.
According to the version of the facts which she gave in evidence, and which
was evidently accepted by the jury, she was aroused from her sleep, frog-
marched into another room where there was a double bed, held by each
of her limbs, arms and legs apart, by the four appellants, while each of
the three young appellants in turn had intercourse with her in the presence
of the others, during which time the other two committed various lewd acts
upon various parts of her body. When each had finished and had left
the room, the appellant Morgan completed the series of incidents by having
intercourse with her himself.
According to Mrs. Morgan she consented to none of this and made her
opposition to what was being done very plain indeed. In her evidence to
the Court, she said that her husband was the first to seize her and pull her
out of bed. She then ” yelled ” to the little boy who was sleeping with
her to call the police, and later, when the elder boy came out on the
landing, she called to him also to get the police, and ” screamed “. Her
assailants, however, covered her face and pinched her nose, until she begged
them to let her breathe. She was held, wrists and feet, ” dragged ” to the
neighbouring room, put on the bed where the various incidents occurred.
At this stage she was overcome by fear of ” being hit”. There was never
a time when her body was free from being held. When it was all over
she grabbed her coat, ran out of the house, drove straight to the hospital
and immediately complained to the staff of having been raped. This last
fact was fully borne out by evidence from the hospital.
In their evidence in Court, the appellants made various damaging
admissions which certainly amounted to some corroboration of all this.
They admitted that some degree of struggle took place in the bedroom, that
Mrs. Morgan made some noise which was forcibly suppressed, and that
she was carried out forcibly into the other bedroom, and that her arms and
legs were separately held. In addition to this, Mrs. Morgan’s evidence
was far more fully corroborated by a number of statements (each, of course,
admissible only against the maker) which virtually repeated Mrs. Morgan’s
own story but in far greater and more lurid detail. Of course, the
appellants repudiated their statements in the witness box, saying that the
words were put into their mouths by the police, even though at least one
was written out in the hands of the makers of the statement. I think it
likely to the extent of moral certainty that the jury accepted that these
statements were made as alleged and contained the truth. But I need not
rest my opinion upon this, since the undeniable fact is that the jury
accepted, after an impeccable summing-up and adequate corroboration, that
Mrs. Morgan was telling the truth in her evidence. I mention all these
details simply to show, that if, as I think plain, the jury accepted Mrs.
Morgan’s statement in substance there was no possibility whatever of any
of the appellants holding any belief whatever, reasonable or otherwise, in
their victim’s consent to what was being done.
The primary ” defence ” was consent. I use the word ” defence ” in
inverted commas, because, of course, in establishing the crime of rape,
the prosecution must exclude consent in order to establish the essential
ingredients of the crime. There is no burden at the outset on the accused
to raise the issue. Nevertheless, at the close of the prosecution case the
accused had a formidable case to answer, and they answered by going
into the witness box and swearing to facts which, if accepted, would have
meant, not merely that they reasonably believed that Mrs. Morgan had
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consented, but that, after she entered the bedroom where the acts of
intercourse took place, she not merely consented but took an active and
enthusiastic part in a sexual orgy which might have excited unfavourable
comment in the Courts of Caligula or Nero.
All four defendants explained in the witness box that they had spent
the evening together in Wolverhampton, and by the time of the alleged
offences had had a good deal to drink. Their original intention had been
to find some women in the town, but when this failed, Morgan made the
surprising suggestion to the others that they should all return to his home
and have sexual intercourse with his wife. According to the three younger
appellants (but not according to Morgan who described this part of their
story as ” lying “) Morgan told them that they must not be surprised if his
wife struggled a bit, since she was ” kinky ” and this was the only way in
which she could get ” turned on “. However this may be, it is clear that
Morgan did invite his three companions home in order that they might have
sexual intercourse with his wife, and, no doubt, he may well have led
them in one way or another to believe that she would consent to their
doing so. This, however, would only be matter predisposing them to
believe that Mrs. Morgan consented, and would not in any way establish
that, at the time, they believed she did consent whilst they were having
intercourse.
I need not enter into the details of what the defendants said happened
after they had arrived at the house. As I have said they admitted that
some degree of struggle took place in the wife’s bedroom. But all asserted
that after she got into the double bedroom she not merely consented to
but actively co-operated with and enjoyed what was being done. She
caressed and masturbated their private parts, she licked their private parts,
she made noises and ” moans” of pleasure. When it was all over she said,
” Have you all had a go? “, but not in a sarcastic sense. In other words,
she was actively participating in a sexual orgy, and was anxious to see
that each of the participants had enjoyed himself as much as she.
The choice before the jury was thus between two stories each wholly
incompatible with the other, and in my opinion it would have been quite
sufficient for the judge, after suitable warnings about the burden of proof,
corroboration, separate verdicts and the admissibility of the statements
only against the makers, to tell the jury that they must really choose between
the two versions, the one of a violent and unmistakeable rape of a singularly
unpleasant kind, and the other of active co-operation in a sexual orgy,
always remembering that if in reasonable doubt as to which was true they
must give the defendants the benefit of it. In spite of the valiant attempts
of counsel to suggest some way in which the stories could be taken
apart in sections and give rise in some way to a situation which might
conceivably have been acceptable to a reasonable jury in which, while
the victim was found not to have consented, the appellants, or any of
them could conceivably either reasonably or unreasonably have thought she
did consent, I am utterly unable to see any conceivable half-way house.
The very material which could have introduced doubt into matter of consent
goes equally to belief and vice versa. As the judge’s summing-up, so far
as relevant to this point, was wholly impeccable, and as the jury obviously
accepted the victim’s story in its substance there is in my view no conceivable
way in which a miscarriage of justice can have taken place and therefore
no possibility of quashing these convictions, even though, as I shall show,
the substantial question of principle should be answered in favour of the
appellants’ contention.
The certified question arises because counsel for the appellants raised
the question whether, even if the victim consented, the appellants may
not have honestly believed that she did. As I have pointed out, the question
was wholly unreal, because if there was reasonable doubts about belief,
the same material must have given rise to reasonable doubt about consent,
and vice versa. But, presumably because, at that stage, the jury’s view of
the matter had not been sought, the matter was left to them, as the appellants
8
complain, in a form which implied that they could only acquit if the mistaken
belief in consent was reasonable, and it was not enough that it should
be honest. This ruling was originally made at the close of the case for the
prosecution, but, as it was subseuently embodied in the summing-up, it is
sufficient to refer to this.
I will quote the principal passage in extenso from the record. The learned
judge said:
“First of all, let me deal with the crime of rape. What are its
” ingredients? What have the Prosecution to prove to your satisfaction
” before you can find a defendant guilty of rape? The crime of rape
” consists in having unlawful sexual intercourse with a woman without
” her consent and by force. By force. Those words mean exactly
” what they say. It does not mean there has to be a fight or blows
” have to be inflicted. It means that there has to be some violence
” used against the woman to overbear her will or that there has to be
” a threat of violence as a result of which her will is overborne. You
” will bear in mind that force or the threat of force carries greater
” weight when there are four men involved than when there is one
” man involved. In other words, measure the force in deciding whether
” force is used. One of the elements to which you will have regard
” is the number of men involved in the incident.”
” Further, the Prosecution have to prove that each defendant intended
” to have sexual intercourse with this woman without her consent. Not
” merely that he intended to have intercourse with her but that he
” intended to have intercourse without her consent. Therefore if the
” defendant believed or may have believed that Mrs. Morgan consented
” to him having sexual intercourse with her, then there would be no
” such intent in his mind and he would be not guilty of the offence of
” rape, but such a belief must be honestly held by the defendant in the
” first place. He must really believe that. And, secondly, his belief
” must be a reasonable belief; such a belief as a reasonable man
” would entertain if he applied his mind and thought about the matter.
” It is not enough for a defendant to rely upon a belief, even though
” he honestly held it, if it was completely fanciful; contrary to every
” indication which could be given which would carry some weight with
” a reasonable man. And, of course, the belief must be not a belief
” that the woman would consent at some time in the future, but a
” belief that at the time when intercourse was taking place or when
” it began that she was then consenting to it.”
No complaint is made of the first paragraph where the learned judge is
describing what, to use the common and convenient solecism, is meant
by the actus reus in rape. Nor is there any complaint by the appellants
of the judge’s first proposition describing the mental element.
It is upon the second proposition about the mental element that the
appellants concentrate their criticism. An honest belief in consent, they
contend, is enough. It matters not whether it be also reasonable. No doubt
a defendant will wish to raise argument or lead evidence to show that his
belief was reasonable, since this will support its honesty. No doubt the
prosecution will seek to cross examine or raise arguments or adduce
evidence to undermine the contention that the belief is reasonable, because,
in the nature of the case, the fact that a belief cannot reasonably be held
is a strong ground for saying that it was not in fact held honestly at all.
Nonetheless, the appellants contend, the crux of the matter, the factum
probandum, or rather the fact to be refuted by the prosecution, is honesty
and not honesty plus reasonableness. In making reasonableness as well as
honesty an ingredient in this ” defence ” the judge, say the appellants, was
guilty of a misdirection.
My first comment upon this direction is that the propositions described
” in the first place ” and ” secondly ” in the above direction as to the mental
ingredient in rape are wholly irreconcileable. In practice this was accepted
by both counsel for the appellants and for the respondent, counsel for the
9
appellants embracing that described as ” in the first place ” and counsel
for the respondent embracing the ” secondly “, and each rejecting the other
as not being a correct statement of the law. In this, in my view, they had
no alternative.
If it be true, as the learned judge says ” in the first place”, that the
prosecution have to prove that ” each defendant intended to have sexual
” intercourse without her consent. Not merely that he intended to have
” intercourse with her but that he intended to have intercourse without
” her consent.” the defendant must be entitled to an acquittal if the prosecu-
tion fail to prove just that. The necessary mental ingredient will be lacking
and the only possible verdict is ” not guilty “. If, on the other hand, as is
asserted in the passage beginning ” secondly “, it is necessary for any belief
in the woman’s consent to be ” a reasonable belief ” before the defendant
is entitled to an acquittal, it must either be because the mental ingredient
in rape is not ” to have intercourse and to have it without her consent” but
simply ” to have intercourse ” subject to a special defence of ” honest and
” reasonable belief “, or alternatively to have intercourse without a reason-
able belief in her consent. Counsel for the Crown argued for each of
these alternatives, but in my view each is open to insuperable objections
of principle. No doubt it would be possible, by statute, to devise a law
by which intercourse, voluntarily entered into, was an absolute offence,
subject to a ” defence ” of belief whether honest or honest and reasonable,
of which the evidential” burden is primarily on the defence and the
” probative ” burden on the prosecution. But in my opinion such is not
the crime of rape as it has hitherto been understood. The prohibited act
in rape is to have intercourse without the victim’s consent. The minimum
mens rea or guilty mind in most common law offences, including rape, is
the intention to do the prohibited act, and that is correctly stated in the
proposition stated ” in the first place ” of the judge’s direction. In murder
the situation is different, because the murder is only complete when the
victim dies, and an intention to do really serious bodily harm has been
held to be enough if such be the case.
The only qualification I would make to the direction of the learned
judge’s ” in the first place ” is the refinement for which, as I shall show,
there is both Australian and English authority, that if the intention of the
accused is to have intercourse nolens volens, that is recklessly and not caring
whether the victim be a consenting party or not, that is equivalent on
ordinary principles to an intent to do the prohibited act without the consent
of the victim.
The alternative version of the learned judge’s direction would read that
the accused must do the prohibited act with the intention of doing it without
an honest and reasonable belief in the victim’s consent. This in effect is
the version which took up most of the time in argument, and although I
find the Court of Appeal’s judgment difficult to understand, I think it the
version which ultimately commended itself to that Court. At all events I
think it the more plausible way in which to state the learned judge’s
” secondly “. In principle, however, I find it unacceptable. I believe that
” mens rea ” means ” guilty or criminal mind “, and if it be the case, as
seems to be accepted here that mental element in rape is not knowledge
but intent, to insist that a belief must be reasonable to excuse is to insist
that either the accused is to be found guilty of intending to do that which
in truth he did not intend to do, or that his state of mind, though innocent
of evil intent, can convict him if it be honest but not rational. Even if
full value is to be given to the ” probative ” burden as defined in Wool-
mington v. D.P.P. [1935] AC 462, this is to insist on an objective element
in the definition of intent, and this is a course which I am extremely
reluctant to adopt, especially after the unhappy experience of the House
after the decision in D.P.P v. Smith [1961] A.C. 290, a case which is full of
warnings for us all, and which I fully discussed in Hyam v. D.P.P. [1974]
2 A11E.R. 41.
So far from my being constrained to adopt this objective element in the
mental element in rape, the prosecution had to travel to New South Wales
10
for direct authority in their favour (see Flaherty (1968) 89 W.N. Pt. 1
(N.S.W.) 141 and Sperotto & Salvietti [1970] 1. N.S.W.R. 502). In place
of direct authority they relied on the very wide range of bigamy cases in
England and Australia from Tolson (1889) 23 Q.B.D. 168 to Thomas (1937)
59 C.L.R. 279, King [1964] 1 Q.B. 285. and Gould [1968] 2 QB 65, on
the abduction case of Prince (1875) Law Rep. 2 C.C. 154, 13 C.C.C. 138,
on the analogies of the ” defences ” of ” self defence ” and ” provocation ”
in murder and assault, and on the remarks of Lord Diplock in Sweet v.
Parsley [1970] AC 132 at pp. 164 and 165.
By contrast, the appellants’ counsel had a fairly impressive list of authori-
ties directly applying to the crime of rape and saying that the prohibited
act is sexual intercourse without consent, and the intention is to do the
prohibited act, that is to have sexual intercourse without consent or irres-
pective of whether the victim consents or not.
First amongst these authorities I would cite the traditional definition of
rape as enshrined in paragraph 2871 of the current Archbold:
” Rape consists in having unlawful sexual intercourse with a woman
” without her consent by force, fear or fraud “.
for which are cited as authorities 1 East P.C. 434 and 1 Hale 627.
It is true that this definition contains no express explicit reference to a
mental element, and the model indictment displayed some paragraphs later
observes the same reticence. But this is misleading. Not only would it be
repugnant for any common law crime of this gravity to lack a mental
element, but as Lord Diplock pointed out in Sweet v. Parsley [1970] AC 132
at p. 162, both statutory and common law offences employ habitually in
their definitions words which impliedly import into the definition of the
crime an implication of an intent or state of mind in the accused. I regard
the words ” force, fear or fraud ” as of this sort. It was suggested in argument
that these simply described ways of disproving consent. I do not agree.
There is also a series of direct statements by successive judges charging
juries of speaking of rape which bear out the appellants’ contention. Thus in
Wright 4 F. & F. 967, 176 E.R. 869, Channell, B., who had to deal with
charges of rape and assault with intent to commit rape, charged a jury :
” Both charges required an intent … to commit the act by force
” against her (the victim’s) will “.
The note to the case also contains reference to a similar and earlier charge
by Coleridge J. in the case of Stanton. In Tolson (supra) Stephen J. in talk-
ing of the mental element in crime said at p. 185,
” Mens rea means … in the case of rape, an intention to have
” forcible connection with a woman without her consent”.
He had made a similar statement in the 7th edition of Roscoe’s Criminal
Evidence. A similar charge in cases of assault with intent to commit rape
was given by Patteson J. in Lloyd (1836) 7 C. & P. 317.
In contrast to the New South Wales Cases, in four Victorian cases, the
Court took a view directly in support of the appellants’ contention (see
Hornbuckle (1945) v. L.R. 281 ; Daly [1968] v. R. 257; Flannery & Prender-
gast [1969] v. R. 31; Buries [1947] v. L.R. 392). In passing I may say that
although on the whole case that Court favoured the ” objective ” test, even
the Court of Criminal Appeal of New South Wales expressly approved this
view of the mental ingredient of the crime in Sperotto & Salvietti [1970] 1
N.S.W.R. 502 where they said at p. 504:
” 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 of the woman without her consent. In order to convict the
” accused of the crime of rape and, subject to what is hereinafter said, to
” establish this intention on his part the Crown must prove beyond
” reasonable doubt that when the accused had intercourse with the
11
” woman either (i) he was aware that she had not consented, or (ii) he
” realized that she might not be consenting and was determined to have
” intercourse with her whether she was consenting or not. The intent
” and the act must both concur to constitute the crime “.
They then cited Thomas v. R. (1937) 59 C.L.R. 279 at p. 287.
How then can one explain the apparently analogous cases relied on by the
respondents which seem to establish that the defence of mistake of fact, in
order to be a ” defence ” to a criminal charge must depend on an ” evidential”
burden to be discharged by the defence before the “probative” burden
reverts to the Crown, to introduce material on which the jury could find
a belief on the part of the accused which is not only honest, but
reasonable?
Bridge J., in giving the judgment of the Court of Appeal, attempted to do
so by three propositions which, again, I quote in extenso. He said:
” The relevant principles can perhaps be restated in the following
” propositions:
” 1. In all crimes the Crown has both the evidential and the probative
” burden of showing that the accused did the prohibited act, and where
” that act, according to the definition of the offence, is an act of volition,
” of showing that the act of the accused in voluntary. An obvious
” example of a crime where the evidential burden on the Crown is limited
” to these two elements is common assault.
” 2. Wherever the definition of a crime includes as one of its express
” ingredients a specific mental element both the evidential and the pro-
” bative burden lie upon the Crown with respect to that element. Typical
” examples are dishonesty in theft and knowledge or belief in handling.
” In seeking to rebut the Crown’s case against him in reference to his
” state of mind the accused may and frequently does assert his mistaken
” belief in non-existent facts. Of course it is right that in this context the
” question whether there were reasonable grounds for the belief is only
” a factor for the jury’s consideration in deciding whether the Crown
” has established the necessary mental element of the crime. This is be-
” cause the issue is already before the jury and no evidential burden
” rests upon the accused.
” The decision of the Divisional Court in Wilson v. Inyang [1951] 2
” K.B. 799 is to be understood in the light of this principle. The court
” there rejected the argument that an acquittal by a magistrate of a
” defendant charged with an offence under section 40 of the Medical
” Act, 1858, should be reversed on appeal by case stated on the ground
” that the defendant had no reasonable ground for his belief that he was
” entitled to call himself a ‘ physician ‘.
” Lord Goddard said at page 803: ‘ If he has acted without any
” reasonable ground, and has refrained from making any proper in-
” quiry, that is generally very good evidence that he is not acting
” ‘ honestly. But it is only evidence.’
” The Statute, however, under which that prosecution was brought
” required the prosecution to prove that the defendant acted ‘ wilfully
‘ and falsely ‘. Inevitably, therefore, if this subjective mental element
” was not proved the prosecution failed.
” 3. But where the definition of the crime includes no specific mental
” element beyond the intention to do the prohibited act, the accused
” may show that though he did the prohibited act intentionally he lacked
” mens rea because he mistakenly, but honestly and reasonably, believed
” facts which, if true, would have made his act innocent. Here the
” evidential burden lies upon the accused but once evidence sufficient to
” raise the issue is before the jury the probative burden lies upon the
” Crown to negative the mistaken belief. The rationale of requiring
” reasonable grounds for the mistaken belief must lie in the law’s
12
” consideration that a bald assertion of belief for which the accused
” can indicate no reasonable ground is evidence of insufficient sub-
” stance to raise any issue requiring the jury’s consideration. Thus,
” for example, a person charged with assault upon a victim shown to
” have been entirely passive throughout who said he had believed
” himself to be under imminent threat of attack by the victim but could
” indicate no circumstance giving cause for such a belief would not
” discharge the evidential burden of showing a mistaken belief that he
” was acting lawfully in self-defence.”
In the event Bridge J. then went on to subsume rape under the third and
not the second heading and so to reach the conclusion: —
” The correct view, we think, is that, on proof of the fact of absence
” of consent from circumstances which in the nature of the case must
” have come to the notice of the defendant, he may be presumed to have
” appreciated their significance, and it is this presumption which casts
” upon the defendant the evidential burden of showing an honest and
” reasonable belief in consent before any issue as to his state of mind
” can arise for the jury’s consideration.”
He goes on to say that, once the ” evidential” burden is discharged the
” probative burden ” is cast once more on the Crown.
With due respect, though with one qualification there is something to be
said for the premises of this statement, I do not believe the conclusion
follows. The qualification I make to the premise is that I can see no
reason why the class of case to which his second proposition applies should
be limited to cases where the mental ingredient is limited to a ” specific
” mental element” if, as appears to be the case, by that is meant an
” ulterior ” intent within Messrs. Smith and Hogan’s definition of that term.
(See Smith & Hogan’s text book on the Criminal Law p. 47).
I believe the law on this point to have been correctly stated by Lord
Goddard in Steane [1947] K.B. 997, at p. 1004, when he said:
” if on the totality of the evidence there is room for more than one view
” as to the intent of the prisoner, the jury should be directed that it is
” for the prosecution to prove the intent to the jury’s satisfaction, and
” if, on review of the whole evidence, they either think the intent did
” not exist or they are left in doubt as to the intent, the prisoner is
” entitled to be acquitted.”
That was indeed, a case which involved a count where a specific, or, as
Professor Smith has called it, an ulterior, intent was, and required to be,
charged in the indictment. But, once it be accepted that an intent of what-
ever discription is an ingredient essential to the guilt of the accused I cannot
myself see that any other direction can be logically acceptable. Otherwise a
jury would in effect be told to find an intent where none existed or where
none was proved to have existed. I cannot myself reconcile it with my
conscience to sanction as part of the English law what I regard as logical
impossibility, and, if there were any authority which, if accepted would compel
me to do so, I would feel constrained to declare that it was not to be followed.
However for reasons which I will give, I do not see any need in the instant
case for such desperate remedies.
The beginning of wisdom in all the ” mens rea ” cases to which our
attention was called is, as was pointed out by Stephen J. in Tolson (supra)
at p. 185, that ” mens rea ” means a number of quite different things in
relation to different crimes. Sometimes it means an intention e.g., in
murder, “to kill or to inflict really serious injury”. Sometimes it means
a state of mind or knowledge, e.g. in receiving or handling goods ” knowing
” them to be stolen”. Sometimes it means both an intention and a state
of mind, e.g. “Dishonestly and without a claim of right made in good
” faith with intent permanently to deprive the owner thereof “. Sometimes
it forms part of the essential ingredients of the crime without proof of
which the prosecution, as it were, withers on the bough. Sometimes it is
a matter, of which, though the ” probative ” burden may be on the Crown,
13
normally the ” evidential” burden may usually (though not always) rest
on the defence, e.g. ” self defence ” and ” provocation ” in murder, though
it must be noted that if there is material making the issue a live one, the
matter must be left to the jury even if the defence do not raise it. In
statutory offences the range is even wider since, owing to the difficulty of
proving a negative, Parliament quite often expressly puts the burden on the
defendant to negative a guilty state (see per Lord Reid in Sweet v. Parsley
[1970] A.C. at p. 150, or inserts words like “fraudulently”, “negligently”,
” knowingly “, ” wilfully “, ” maliciously ” which import special types of guilty
mind, or even imports them by implication by importing such word as
” permit” (c.f. per Lord Diplock in the same case at p. 162) or as in Warner
[1969] 2 A.C. 256 prohibit the ” possession ” of a particular substance, or as,
in Sweet v. Parsley itself, leaves the courts to decide whether a particular
prohibition makes a new ” absolute” offence or provides an escape by
means of an honest, or an honest and reasonable belief. Moreover of course,
a statute can, and often does, create an absolute offence without any degree
of mens rea at all. It follows from this, surely, that it is logically imper-
missible, as the Crown sought to do in this case, to draw a necessary inference
from decisions in relation to offences where mens rea means one thing,
and cases where it means another, and in particular from decisions on the
construction of statutes, whether these be related to bigamy, abduction
or the possession of drugs, and decisions in relation to common law offences.
It is equally impermissible to draw direct or necessary inferences from
decisions where the mens rea is, or includes, a state of opinion, and cases
where it is limited to intention (a distinction I referred to in Hyam, supra),
or between cases where there is a special ” defence “, like self defence or
provocation and cases where the issue relates to the primary intention which
the prosecution has to prove.
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 for or against the view that
the belief and therefore the intent was actually held, and it matters not
whether, to quote Bridge J. in the passage cited above: “the definition
” of a crime includes no specific element beyond the prohibited act”.
If the mental element be primarily an intention and not a state of belief
it comes within his second proposition and not his third. Any other view,
as for insertion of the word ” reasonable ” can only have the effect of saying
that a man intends something which he does not.
By contrast, the appellants invited us to overrule the bigamy cases from
Tolson onwards and perhaps also Prince (the abduction case) as wrongly
decided at least in so far as they purport to insist that a mistaken belief
must be reasonable. The arguments for this view are assembled, and
enthusiastically argued, by Professor Glanville Williams in his treatise on
Criminal Law between pages 176 and 205, and by Messrs. Smith and
Hogan (see Smith and Hogan at pp. 148, 149 of their text book).
Although it is undoubtedly open to this House to reconsider Tolson
(supra) and the bigamy cases, and perhaps Prince (supra) which may stand or
fall with them, I must respectfully decline to do so in the present case. Nor
is it necessary that I should. I am not prepared to assume that the statutory
offences of bigamy or abduction are necessarily on all fours with rape, and
before I was prepared to undermine a whole line of cases which have been
accepted as law for so long, I would need argument in the context of a
case expressly relating to the relevant offences. I am content to rest my
view of the instant case on the crime of rape by saying that it is my
opinion that the prohibited act is and always has been intercourse without
consent of the victim and the mental element is and always has been the
14
intention to commit that act. or the equivalent intention of having intercourse
willy-nilly not caring whether the victim consents or no. A failure to prove
this involves an acquittal because the intent, an essential ingredient, is
lacking. It matters not why it is lacking if only it is not there, and in
particular it matters not that the intention is lacking only because of a
belief not based on reasonable grounds. I should add that I myself am
inclined to view Tolson as a narrow decision based on the construction of
a statute, which prima facie seemed to make an absolute statutory offence,
with a provisio, related to the seven year period of absence, which created
a statutory defence. The judges in Tolson decided that this was not
reasonable, and, on general jurisprudential principles, imported into the
statutory offence words which created a special “defence” of honest and
reasonable belief of which the ” evidential” but not the probative burden
lay on the defence. I do not think it is necessary to decide this conclusively
in the present case. But if this is the true view there is a complete distinction
between Tolson and the other cases based in statute and the present.
I may also add that I am not impressed with the analogy based on the
decision in Wilson v. Inyang [1951] 2 K.B. 799 at p. 803 which has attracted
the attention of some academic authors. That clearly depends on the
construction of the words ” wilfully and falsely ” where they are used in the
relevant statute. Also, though I get some support from what I have been
saying from the reasoning of the decision in Smith (D.R.) [1974] 1 All
E.R. 632, I nevertheless regard that case as a decision on the Criminal
Damage Act, 1971, rather than a decision covering the whole law of
criminal liability.
For the above reasons I would answer the question certified in the
negative, but would apply the proviso to the Criminal Appeal Act on the
ground that no miscarriage of justice has or conceivably could have occurred.
In my view, therefore, these appeals should be dismissed.
Lord Simon of Glaisdale
MY LORDS,
I have had the advantage of reading in draft the speech prepared by my
noble and learned friend, Lord Edmund-Davies. I concur with him that
the authorities demand that the question certified for your Lordships’ con-
sideration should be answered, Yes. But, agreeing as I do with the judgment
of Bridge J. in the Court of Appeal, I feel no reluctance in coming to this
conclusion, which seems to me to accord with legal principle and with good
sense.
To say that, to establish a charge of rape, the Crown must show on the
part of the accused ” an intention to have sexual intercourse with a woman
” without her consent” is ambiguous. It can denote either, first, an
intention to have sexual intercourse with a woman who is not, in fact,
consenting to it. This was the contention advanced on behalf of the D.P.P.
before your Lordships; but, for the reasons given by my noble and learned
friends, I do not think that it is acceptable. Or, secondly, it can mean
an intention to have sexual intercourse with a woman with knowledge that
she is not consenting to it (or reckless as to whether or not she is consenting).
I believe that this second meaning indicates what it is that the prosecution
must prove.
The problem which faces your Lordships arises when the accused raises
a case fit for the jury’s consideration that he believed that the woman was
consenting to sexual intercourse, though in fact she was not doing so. Does
an honest but unreasonable belief that the woman is consenting to sexual
intercourse suffice to negative the charge of rape?
The answer to this question, in my view, depends on the following matters:
first, a distinction between crimes of basic and of ulterior intent; secondly,
a distinction between probative and evidential burdens of proof; thirdly,
the interrelationship of these two distinctions; fourthly, ascertainment
15
whether rape is a crime of basic or ulterior intent; and, fifthly, the general
policy of the criminal law when the prosecution has provisionally discharged
the burden of proving actus reus and mens rea, and the accused then
alleges a belief, albeit erroneous, in a state of facts which would, if true,
negative the actus reus and the mens rea provisionally proved by the
prosecution. After examining these five matters I shall endeavour to
determine the reasons for what I believe to be the general policy of the
criminal law in such circumstances.
I turn to examine, first, the distinction between crimes of basic and of
ulterior intent, having taken the latter expression from Smith & Hogan.
I leave aside, as irrelevant, crimes of absolute liability ; and I propose to
use the terms actus reus and mens rea in the senses which I indicated in
D.P.P, for Northern Ireland v. Lynch. 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 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 unjusti-
fied by law as a probable consequence of his act, or that he was reckless
as to whether or not such consequence ensued.
On the other hand, there are crimes of ulterior intent—” ulterior ” because
the mens rea goes beyond contemplation of the actus reus. For example,
in the crime of wounding with intent to cause grievous bodily harm, the actus
reus is the wounding. The presecution must prove a corresponding mens rea
(as with unlawful wounding), but the prosecution must go further: it must
show that the accused foresaw that serious physical injury would probably
be a consequence of his act. The crime of wounding with intent to cause
grievous bodily harm could be committed without any serious physical
injury being caused to the victim. This is because there is no actus reus
corresponding to the ulterior intent. One of the questions which has to be
answered in this appeal is whether rape is a crime of basic or ulterior intent.
A second relevant distinction known to the modern law is that between
probative and the evidential burdens of proof. Though the terminology has
changed, this distinction goes back to a seminal article by Denning J. (as he
then was) in (1945) 41 L.Q.R. 379, entitled ” Presumtions and Burdens”.
In the criminal law the probative burden of every issue lies on the prose-
cution (except for the single common law exception of insanity and some
statutory exceptions). But the prosecution may adduce evidence sufficient,
at a certain stage in the trial, to discharge provisionally the probative burden
and thus call for some explanation on behalf of the accused (generally by
evidence ; though forensic analysis discounting the prosecution’s case some-
times suffices): the evidential burden has shifted, though the probative
burden remains on the prosecution. Again, the accused may raise a case
for the consideration of the jury on a fresh issue. For example, although
16
the prosecution may have provisionally discharged the onus of proving
an assault, the accused may raise an issue of self-defence in a form fit for
the consideration of the jury: if so, the evidential burden of disproving
it will shift to the prosecution, which has, of course, also (once the defence
is raised in a form fit for the consideration of the jury) the probative burden
of disproving it. In this way the evidential burden of proof will often shift
backwards and forwards during a trial, the probative burden remaining
throughout upon the presecution.
The third matter for consideration is the interaction between these two
distinctions—between crimes of basic and of ulterior intent, on the one
hand, and between probative and evidential burdens of proof on the other.
Such interaction occurs because proof of the actus reus generally raises a
presumption of a corresponding mens rea, an act being usually performed
with foresight of its probable consequences. I emphasise the words
” generally ” and ” usually “; because the inference may not be a natural
one in some circumstances. For example, a different inference as to intention
may be drawn from proof that the accused drove his elbow hard into the
stomach of a stranger in a crowded train from where it is proved that he did
the same act when alone with the stranger in the course of an angry
argument. If the crime is one of basic intent, so that the mens rea does
not extend beyond the actus reus, proof of the actus reus is therefore,
generally, sufficient prima facie proof of the mens rea to shift the evidential
burden of proof. Thus, if the prosecution proves that the accused squeezed
the trigger of a firearm and thereby wounded a victim, this will often be
sufficient proof not only on the actus reus of unlawful wounding but also
of the necessary mens rea—i.e., that the accused either foresaw the wounding
as a likely consequence of his act or was reckless as to whether it ensued—
so as to cause the evidential burden to shift and thus to call for some
explanation on behalf of the accused. But if the crime is one of ulterior
intent, proof of the actus reus tells little about the mens rea insofar as it
extends beyond the actus reus; so that the evidential burden does not
necessarily shift on proof of the actus reus. To prove that A wounded B,
even intentionally, does not of itself raise a presumption that A thereby
intended to cause serious physical injury to B.
This brings me to the fourth question—namely, whether rape is a crime
of basic or ulterior intent. Does it involve an intent going beyond the actus
reus? Smith & Hogan (3rd ed. p. 47) say No. I respectively agree. The
actus reus is sexual intercourse with a woman who is not in fact consenting
to such intercourse. The mens rea is knowledge that the woman is not con-
senting or recklessness as to whether she is consenting or not. That it is
nothing more can be seen by postulating an offence of rape with an ulterior
intent. The offence with which the 4th Earl of Bothwell was popularly
charged by his contemporaries was rape with intent to procure marriage.
If this were a crime—and several eighteenth century crimes of abduction
are near analogues—the crime would be one of ulterior intent. But com-
parison with such a postulated crime shows that rape itself involves no mens
rea going beyond the actus reus.
If this is right, proof of the actus reus in rape—that is, proof of sexual
intercourse with a woman who did not consent to it—will generally be
sufficient prima facie proof to shift the evidential burden. If the evidential
burden shifts in this way, the accused must either prove that his conduct
was involuntary (which is irrelevant in the crime of rape) or he must negative
the inference as to mens rea which might be drawn from the actus reus.
Assuming that the prosecution has proved sexual intercourse with a woman
who did not in fact consent to it, in general the only way in which the
accused can shift back the evidential burden is by showing a belief in a
state of affairs whereby the actus would not be reus. In the context of rape,
the accused in such circumstances must, in other words, show that he
believed that the woman was consenting. To say that he must show that he
believed it ” honestly ” is tautologous but useful as emphasising a distinction.
The question is whether he must show that he believed it reasonably, and,
if so, why.
17
My noble and learned friend, Lord Edmund-Davies, has reviewed a
number of cases which throw light on this question. I do not wish to cover
the same ground so carefully explored. I would, however, emphasise three
matters in relation to Tolson (1889) 23 Q.B.D. 168. First, it is to be
presumed that Stephen J. took the special verdict of the jury (that the
accused in good faith and on reasonable grounds believed her husband to
be dead) because he thought that it raised the appropriate issue; and none
of the other thirteen judges in the Court of Crown Cases Reserved questioned
this. Secondly, bigamy cannot be put in a class by itself because of the
terms of the statute defining the crime of bigamy. It was the minority who
felt constrained by the terms of the statute to hold, in effect, that bigamy
was a crime of absolute liability. The majority read into the statute, as an
implication of the common law, a requirement of mens rea. Thirdly, then,
the majority (without dissent by the minority on this point) proceeded on the
basis that what, by general common-law principles, negatived mens rea was
an honest and reasonable belief in facts which, if true, would make the
questioned act an innocent one. This appears throughout the majority
judgments; and I need only refer particularly to the following matters:
“… it was not suggested by any of the judges that the exception
” of honest and reasonable mistake was not applicable to all offences …”
(my italics).
“… I think it may be laid down as a general rule that an alleged
” offender is deemed to have acted under that state of facts which he in
” good faith and on reasonable grounds believed to exist when he did
” the act alleged to be an offence “. (My italics.)
(5) Stephen J.’s agreement at p. 190 (Grantham J. concurring) with Brett J.’s
statement in Prince (” a mistake of facts on reasonable grounds … is an
” excuse “) (my italics). (6) Hawkins J.’s agreement at p. 194 with Brett J.’s
judgment in Prince (” whose language I cheerfully adopt . . . touching the
” principles of law which govern such questions as that now before us “).
My noble and learned friend. Lord Edmund-Davies, has cited the cases
which exemplify the same rule operating in the common-law doctrine of
self-defence. Once the prosecution has discharged the burden of proving an
actus reus of assault and (by inference therefrom or extrinsically) the neces-
sary mens rea, the evidential burden shifts to the accused. He can discharge
it by raising a case fit for the consideration of the jury that he believed in
a state of affairs whereby the actus proved by the prosecution would not
be reus. He may do this by showing that his conduct towards the victim
was prompted by his belief that the victim was about to attack him, and
that what he did was no more than was necessary for his own defence in the
circumstances as he believed them to exist. But it is clear law that, in order
to establish a defence in such circumstances, his belief must be based on
reasonable grounds.
In Warner v. Metropolitan Police Commissioner [1969] 2 A.C. 256 at
p. 276, Lord Reid said :
” A passage often quoted from the judgment of the Privy Council
” in Bank of New South Wales v. Piper [1897] AC 383, 389, 390 is
” that ‘ the absence of mens rea really consists in an honest and
“‘ reasonable belief entertained by the accused of the existence of facts
“‘ which, if true, would make the act charged against him innocent.”
(my italics)
(in turn cited in connection with rape by Winneke C.J., in R. v. Flannery
and Prendergast [1969] V.R. 31, 34).
18
In Devlin v. Armstrong [1971] L.R. N.I. 13 the charge was of riot. The
defence was that the accused held an honest and reasonable belief that the
police were about to behave unlawfully. The Northern Irish Court of
Appeal, presided over by Lord MacDermott L.C.J., assumed that the
accused did honestly and reasonably so believe, but held that for a number
of reasons it constituted no defence in the circumstances: it was not
questioned that in other circumstances it might be the correct criterion.
The Court treated the case in a number of respects as analogous to
self-defence.
The common law seems to be the same in the U.S.A.; see specifically
as regards rape U.S. v. Short (1954) 4 U.S. C.M.A. 437, 16 C.M.R. 11.
Nor is the policy of the law exemplified merely in the common law: it is
equally demonstrated by Parliament—and recently—and in this very field
of law. Section 1(1) of the Sexual Offences Act 1956 codifies the common
law by enacting that ” It is felony for a man to rape a woman “. By
section 6 of the same Act:
” (1) It is an offence, subject to the exceptions mentioned in this
” section, for a man to have unlawful sexual intercourse with a girl
” not under the age of thirteen but under the age of sixteen.
” (2) …
” (3) A man is not guilty of an offence under this section because he
” has unlawful sexual intercourse with a girl under the age of sixteen.
” if he is under the age of twenty-four and has not previously been
” charged with a like offence, and he believes her to be of the age of
” sixteen or over and has reasonable cause for the belief,” (my italics of
course).
It remains to consider why the law requires, in such circumstances, that
the belief in a state of affairs whereby the actus would not be reus should
be held on reasonable grounds. One reason was given by Bridge J. in the
Court of Appeal:
” The rationale of requiring reasonable grounds for the mistaken
” belief must lie in the law’s consideration that a bald assertion of belief
” for which the accused can indicate no reasonable ground is evidence
” of insufficient substance to raise any issue requiring the jury’s
” consideration.”
I agree; but I think there is also another reason. The policy of the law
in this regard could well derive from its concern to hold a fair balance
between victim and accused. It would hardly seem just to fob off a victim
of a savage assault with such comfort as he could derive from knowing
that his injury was caused by a belief, however absurd, that he was about to
attack the accused. A respectable woman who has been ravished would
hardly feel that she was vindicated by being told that her assailant must go
unpunished because he believed, quite unreasonably, that she was consenting
to sexual intercourse with him. The policy behind section 6 of the Sexual
Offences Act is presumably that Parliament considered that a girl under
sixteen is generally unlikely to be sufficiently mature to realise the full
implications of sexual intercourse; so that her protection demands that a
belief by a man under the age of twenty-four that she herself was over
the age of sixteen should not only be an honest but also a reasonable belief.
All the foregoing accords, I trust and believe, with the passage in the
speech of my noble and learned friend, Lord Diplock, in Sweet v. Parsley
[1969] A.C. 132,164E-G which was cited by Bridge J.
I would therefore answer the question certified for your Lordships’
consideration, Yes. But, even did I consider that it should be answered
No, I would, for the reasons given by my noble and learned friends, think
this a suitable case to apply the proviso.
I would therefore dismiss the appeal.
19
Lord Edmund-Davies
MY LORDS,
The appellants, McDonald, McLarty and Parker were each convicted at
the Stafford Crown Court on January 24, 1974, of raping Mrs. Daphne Ethel
Morgan. Each man was also convicted of aiding and abetting the rapes
committed by the other two accused. The fourth appellant, Morgan, who
was and is the husband of Mrs. Morgan, was convicted of aiding and abetting
the rapes committed by McDonald, McLarty and Parker.
By leave of the single judge, all four men appealed against conviction.
On July 25th, 1974, the consolidated appeals of McDonald, McLarty and
Parker were dismissed and on October 14 that of Morgan also. The Court
of Appeal (Criminal Division) certified that a point of law of general public
importance was involved in their decision, and granted each appellant leave
to appeal to this House, the point of law being thus stated: Whether in rape
the defendant can properly be convicted, notwithstanding that he in fact
believed that the woman consented, if such belief was not based on reasonable
grounds. As will presently appear, the direction of Mr. Justice Kenneth
Jones, the trial judge, was to the effect that the proper answer to the certified
question is in the affirmative, and the Court of Appeal upheld that direction.
This House has now to adjudicate upon two matters: (1) Was there a
misdirection? (2) If so, is this a suitable case to apply the proviso to
section 2(1) of the Criminal Appeal Act, 1968, on the ground that no
miscarriage of justice resulted from such misdirection? If the proper answer
to question (1) is “Yes”, and that to question (2) “No”, it follows that
not only must the conviction of the principals in the first degree be quashed,
but that all convictions for aiding and abetting (including those of the
appellant Morgan) must also be quashed.
In the Court of Appeal Bridge J. described the facts of the case as
” somewhat bizarre”. They were indeed such as to create disgust and
indignation. But in the course of his clear and careful summing-up Kenneth
Jones J. stressed the necessity for a dispassionate approach by the jury to
their task. At the outset he placed before them the central issue of the trial
in these words:
” On the morning of the 15th August, 1973, the defendant Morgan,
” who is a Senior N.C.O. in the Royal Air Force, took back the other
” three defendants …. to his home where his wife and two young
” children were asleep, and he then invited and encouraged those three
” airmen to have sexual intercourse with his wife, each in the presence
” of the others and in his presence, and when they had finished he himself
” had intercourse with her.
” The prosecution say that the three defendants, McDonald, McLarty
” and Parker raped Mrs. Morgan and that Morgan himself aided and
” abetted that crime. The Defence say quite the contrary, that Mrs.
” Morgan fully consented to what had taken place and, indeed, took
” pleasure in it.
” That really, very simply, is the issue which you have to resolve.”
What is under attack in these consolidated appeals is the direction given
by the trial judge as to how the jury were to approach this central issue of
consent vel non, and, before examining the evidence, it is convenient to have
in mind his exposition of what the Crown had to establish before any one
of the accused could be convicted.
” The crime of rape consists in having unlawful sexual intercourse
” with a woman without her consent and by force. By force. Those
” words mean exactly what they say. It does not mean there has to be
” a fight or blows have to be inflicted. It means that there has to be
” some violence used against the woman to overbear her will or that
” there has to be a threat of violence as a result of which her will is
” overborne.”
20
” Further, the Prosecution have to prove that each defendant intended
” to have sexual intercourse with this woman without her consent Not
” merely that he intended to have intercourse with her, but that he
” intended to have intercourse without her consent. Therefore, if the
” defendant believed or may have believed that Mrs. Morgan consented
” to him having sexual intercourse with her, then there would be no
” such intent in his mind and he would not be guilty of the offence of
” rape, but such a belief must be honestly held by the defendant hi the
” first place. He must really believe that. And, secondly, his belief
” must be a reasonable belief; such a belief as a reasonable man would
” entertain if he applied his mind and thought about the matter. It is
” not enough for a defendant to rely upon a belief, even though he
” honestly held it, if it was completely fanciful, contrary to every indica-
” tion which could be given which would carry some weight with a
” reasonable man ….
” If you consider that she consented, or may have consented to this
” intercourse, that is an end of the case. Your verdicts would be one
” of not guilty. But if you are satisfied, if you are sure tht she did not
” consent, then you would have to turn to consider: Well, did the
” particular defendant honestly and reasonably believe that she
” consented? ….
” But if you are sure that she did not consent, that must mean that
” you have rejected the whole of the evidence of the defendants to the
” contrary. You have listened to them all say she did consent, and
” you have said to yourselves: That is a lie. You may consider—it is
” a matter entirely for you—it is a desperate defence to put forward,
” that, even although you have rejected so much of their evidence that
” nevertheless you should have some doubt as to whether they honestly
” and reasonably believed that she was consenting.”
So much for the judge’s directions. The strange evidence to which they
relate must now be considered: Morgan was a Senior N.C.O. in the Royal
Air Force. He was 37 years old, his wife 34, and they had been married
for about 13 years and had boys of 11 and 12. For some time husband
and wife had been or poor terms, and she had engaged in two love affairs,
at least one of them being (as Mrs. Morgan alleged) at her husband’s
instigation. Of the other three accused, one was nearly 20, the other two
were in their twenties, all three of them serving in the Royal Air Force and
having arrived at the R.A.F. Depot as Cosford on August 15, 1973. It is
common ground that Morgan invited the other three accused, all complete
strangers to him, that night to go back to his house and have intercourse
with his wife and that as he drove them from Wolverhampton to his home
at Cosford he supplied each of them with a contraceptive. The only
issue between the various accused relating to this part of the case was that
Morgan denied the assertion of the others that during the car journey he
told them that his wife might put up a show of struggling, but that this
would only be a charade stimulating her sexual excitement, as in reality
she would welcome intercourse with them. They claimed that, although
they were at first incredulous, Morgan finally persuaded them that he was
serious and that their behaviour thereafter was throughout based on their
belief that Mrs. Morgan was indeed only play-acting. Certainly she could
have done nothing more than she did to resist the attacks made upon her,
and before this House counsel for the appellants accepted that in fact
she never did consent to what transpired from the moment the four men
reached Morgan’s home. She was awakened from sleep in a bedroom
which she shared with her 11 year old son and her evidence was that all
four accused in part dragged and in part carried her into another room
which contained a double bed. She claimed that she struggled violently
and shouted ” Police! ” several times until a hand was placed over her mouth,
that both children were awakened and that thereafter each of the four
accused had sexual intercourse with her. It was established that, as soon
as the three strangers had departed and Morgan had gone to bed, Mrs.
21
Morgan drove off to Cosford Hospital and complained of having been
raped, her case being that she did all she could to resist but that she was
throughout held down on the bed by three men while the fourth had inter-
course with her. She was amply corroborated by the oral and written
statements of all four accused which amounted to complete confessions of
multiple rapes. But at their trial all challenged their police statements
and asserted that Mrs. Morgan was throughout a willing party. Morgan,
indeed, denied that his wife struggled and asserted that she evinced pleasure
in the treatment to which she was being subjected. McDonald testified
that she masturbated him while one of his colleagues was having intercourse
with her—this in contrast to his statement to the police that she had dug
her nails into his penis so as to prevent his advances. McLarty claimed
both in his police statement and in evidence that Mrs. Morgan engaged
herself in fellatio with him while Parker was having intercourse, while
Parker himself testified that she had caressed his private parts, moved her
body with his, and that” Everything happened with her full approval”.
The reason why it has seemed necessary to go into this disagreeable
evidence in some detail will appear during the concluding stage of this
judgment. I now turn to consider the law.
The basic submission of the appellants both below and before this House
was that the Jury had been wrongly directed that (to quote Bridge J.):
“… the Crown can establish the element of mens rea necessary
” to support a conviction for rape if they satisfy the jury that a
” defendant’s belief in consent by the prosecutrix, though honestly
” held, was not based on reasonable grounds. The correct view in law,
” it is urged, is that the Crown must negative honest belief in consent,
” and that the question whether or not there were reasonable grounds
” for such a belief is no more than a factor (albeit an important factor)
” in the evidence to be considered by the jury in deciding whether the
” belief was honestly held “.
Pointing out that the question raised by the submission is not directly deci-
ded by any English authority, Bridge J. embarked on a helpful survey of the
reported cases, both in this country and in Australia, and then restated what
he described as the relevant principles in the following propositions:
“1. In all crimes the Crown has both the evidential and the probative
” burden of showing that the accused did the prohibited act, and where
” that act, according to the definition of the offence, is an act of volition,
” of showing that the act of the accused was voluntary. An obvious
” example … is common assault.
” 2. Wherever the definition of a crime includes as one of its express
” ingredients a specific menial element, both the evidential and the proba-
” live burden lie upon the Crown with respect to that element. Typical
” examples are dishonesty in theft and knowledge or belief in handling.
” In seeking to rebut the Crown’s case against him in reference to his
” state of mind the accused may and frequently does assert his mistaken
” belief in non-existent facts. Of course it is right that in this context the
” question whether there were reasonable grounds for the belief is only
” a factor for the jury’s consideration in deciding whether the Crown has
” established the necessary mental element of the crime. This is because
” the issue is already before the jury and no evidential burden rests
” upon the accused.
‘ 3. But where the definition of the crime includes no specific mental
” element beyond the intention to do the prohibited act, the accused may
” show that though he did the prohibited act intentionally he lacked the
” mens rea because he mistakenly, but honestly and reasonably, believed
” facts which, if true, would have made his act innocent. Here the evi-
” dential burden lies upon the accused but once evidence sufficient to
” raise the issue is before the jury the probative burden lies upon the
” Crown to negative the mistaken belief. The rationale of requiring rea-
” sonable grounds for the mistaken belief must lie in the law’s con-
” sideration that a bald assertion of belief for which the accused can
22
” indicate no reasonable ground is evidence of insufficient substance to
” raise any issue requiring the jury’s consideration …”
The parties to these appeals are at one in regarding the offence of rape as
falling within the third of Bridge J’s. propositions, but they differ widely in
relation to what is involved in ” the intention to do the prohibited act”.
Before this House, learned prosecuting counsel submitted that rape consists
simply in having sexual intercourse with a woman who does not in fact
consent, and that more than this the Crown need not establish in order to
secure a conviction. This simplistic approach is reminiscent of the minority
judgments in Reg. v. Tolson (1889) 23 Q.B.D. 168, of which more hereafter,
that a man commits bigamy if he goes through a marriage ceremony while his
wife is alive, even though he honestly and reasonably believes she is dead.
Indeed, it would mean that rape involved no mental element save the inten-
tion to have intercourse; that the trial judge in the present case was com-
pletely wrong in thinking that it does; that the Court of Appeal (Criminal
Division) should have dismissed the appeals out of hand on the simple
ground that any misdirection as to the requirement of any particular mental
element was an irrelevance which could have operated only in favour of the
accused; and, in short, that there never was a point of law to certify as fit
for consideration by this House.
It was rightly submitted for the appellants that such an approach involves a
fundamentally wrong conception of what constitutes rape. The offence lacks
statutory definition, the Sexual Offences Act, 1956, section 1(1) merely declar-
ing it an offence for a man to rape a woman. East defined it as ” the un-
” lawful carnal knowledge of a woman by force and against her will ” (1 P.C.
434). Hawkins (1 P.C. 122) used similar words, and the practice for centuries
has been to charge a violent crime. Thus, in the 7th edition of Archbold
(1838), p. 142, the. particulars of the indictment there set out are that the
accused ” violently and feloniously did make an assault, and her the said
” A.N., then and there, violently and against her will, feloniously did ravish
” and carnally did know “. And the appended notes on evidence include
this passage :
” It must be proved that the rape was committed on A.N. against her
” will, and which of course implies violence. If, however, she yielded
” through fear of death or duress, it is rape “.
The current (38th) edition, paragraph 2871, states that:
” Rape consists in having unlawful sexual intercourse with a woman
” without her consent by force, fear or fraud “.
These variants all indicate that knowledge by the accused of the woman’s
unwillingness to have intercourse is essential to the crime of rape. No man,
one would have thought, could be a rapist per incuriam. And it will be
recalled that Kenneth Jones, J. said:
“… the prosecution have to prove that each defendant intended to
” have sexual intercourse with this woman without her consent. Not
” merely that he intended to have intercourse with her, but that he inten-
” ded to have intercourse without her consent”.
The Court of Appeal adopted this direction without qualification. And,
with respect, so do I, save that I would add that the man would have
the necessary mens rea if he set about having intercourse either against the
woman’s will or recklessly, without caring whether or not she was a consent-
ing party.
The crux of these appeals is to be found in the following words of
Bridge J.:
” However the crime of rape be defined, the Crown clearly has the
” evidential burden of showing the act of intercourse, and absence of
” consent. The second element is, of course, something more than the
” subjective unwillingness of the prosecutrix. The circumstances in
” which the act of intercourse takes place must be such that absence
” of consent is objectively demonstrated. . . .
23
” Has the Crown, beyond these two elements, the evidential burden
” of showing any and if so what degree of subjective appreciation by
” the accused of that which, ex hypothesi, has been objectively demon-
” strated, viz.: absence of consent? No accepted definition of the
” offence suggests the need to prove such a subjective mental element.
” Dicta to the effect that the mens rea of rape is an intention to have
” intercourse without consent really carry the matter no further. They
” tell us that the act of intercourse must be intentional, which by its
” nature it inevitably is, but throw no light on the state of mind required
” to be shown quoad absence of consent. The correct view, we think,
” is that on proof of the fact of absence of consent from circumstances
” which in the nature of the case must have come to the notice of the
” defendant he may be presumed to have appreciated their significance,
” and it is this presumption which casts upon the defendant the
” evidential burden of showing an honest and reasonable belief in
” consent before any issue as to his state of mind can arise for the
” jury’s consideration.”
In the absence of contrary evidence, the accused may be presumed to
have appreciated the significance of circumstances which must have come
to his notice. But it does not follow inexorably that he in fact did so, and
Reg. v. Horton (1871) 11 Cox C.C. 670, a bigamy case, is but one example
of failure in this respect. The presumption is not conclusive and, unless
it emerges that there is a weight of authority compelling a different con-
clusion, I should have considered that the honest belief of an accused
charged with rape that the woman was willing, being wholly inconsistent
with the criminal intention necessary to constitute the crime, would call
for his acquittal. The more unreasonable such a belief in the proved
circumstances of the case, the slimmer the chances of the jury’s thinking
that it was ever entertained. Nevertheless, if, after hearing all the evidence
(and, in most cases, particularly that of the accused himself), they did not
reject out of hand the plea of honest belief, even though they were alive
to its unreasonableness, I should have thought that they were duty bound
to acquit. Honest belief, however foolishly formed, that the woman was
willing seems to me incompatible with an intention to rape her. Here, as
in any other crime where knowledge is an essential ingredient, this should
connote actual knowledge and not merely what the accused ought to have
known. As Smith & Hogan put it (3rd Ed., 150),
” It is now established by section 8 of the Criminal Justice Act, 1967,
” that a failure to foresee the material results of one’s conduct is a
” defence whether reasonable or not. It is odd that a different rule
” should prevail with respect to circumstances, the more particularly
” since foresight of results frequently depends on knowledge of circum-
” stances. . . . Such a distinction seems unjustifiable. Its existence
” points in favour of a rule allowing as a defence any honest mistake
” which negatives mens rea, whether reasonable or not “.
Does the law, then, compel one to say that a man should be convicted
as a rapist though the jury remain unconvinced that rape was in his mind?
The direction given by Channell B., in Reg. v. Wright (1864) 4 F. & F. 967
seems to indicate that he would have answered that question in the negative.
On charges of rape and of assault with intent to commit rape, he directed
the jury that—
“… even to convict of an assault with intent to commit a rape,
” and a multi fortiori, in order to convict of a rape, they must be
” satisfied that there was an intention to commit the act, notwithstanding
” any resistance on the part of the prosecutrix. . . . For it was of
” the essence of the offence that it should be committed without the
” will and against the consent of the prosecutrix. . . . Both charges
” required an intent on his part to commit the act by force against her
” will.”
There are directions and obiter dicta in many oilier English cases to a like
effect Thus in Tolson [1889] 23 Q.B.D. 168, the well-known case of alleged
bigamy, Stephen J. said (at p. 185):
24
“‘ Mens rea‘ means … in the case of rape, an intention to have
” forcible connection with a woman without her consent.”
I therefore find it difficult to follow how a belief (‘honest’ is a
superfluous, but convenient, adjective) that the woman is consenting can exist
alongside an intention to rape her. Much stress was laid in the Court of
Appeal and in this House on certain Australian decisions bearing on the
question whether such belief has also to be based on reasonable grounds.
Relating as they do to charges of rape, I accordingly turn to them, before
considering English cases relating to the topic of mistaken belief as affecting
mens rea over a wider field.
In R. v. Hornbuckle (1945) V.L.R. 281, where the court was considering
the plea of drunkenness in answer to a rape charge, Lowe J. said (at p. 287):
” To hold that knowledge that the act of intercourse was occurring
” sufficiently establishes the intent, [to have intercourse without consent]
” because the man who knows he is committing the act must intend it,
” even if prima facie warranted, seems to us to fail to distinguish
” ‘ intent to have intercourse’ from ‘ intent to have intercourse without
” ‘ consent of the female ‘ “.
Unfortunately, however, that case is not directed to the point of law giving
rise to this appeal.
In R. v. Buries (1947) V.L.R. 392, where the defence to a charge of rape
was that the accused knew he had the woman’s consent because both by word
and by deed she plainly told him so, a defence which the jury clearly
disbelieved, the point raised on the appeal against conviction was whether
the jury should have been directed as to the legal position arising if the
accused mistakenly believed that the woman was consenting, a version
which he never advanced at the trial. Dismissing the appeal, Gavan Duffy, J.,
after a wide survey of the authorities said: (p. 403)
“… when once there is some evidence of belief and reasonable ground
” for it, the jury should be told that a guilty mind is a necessary
” constituent of the crime and that unless they are satisfied beyond
” reasonable doubt, on a consideration of all the evidence, that that
” constituent along with the others has been proved, they should
” acquit.”
(p. 404):
“… the jury should only consider the possibility of the accused having
” acted on a wrong belief as to the facts when there is some evidence
” that he did honestly believe at least that the necessary facts existed.”
In Reg. v. Daly (1968) V.L.R. 257 the nearest one gets to support for the
present appellants is the following passage from the judgment of the court
given by Smith J. (at p. 259):
” 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 intention … but to tell the jury that it was a defence
” to the charge of rape if the accused honestly believed on reasonable
” grounds that the girl was consenting. He also told them that the
” Crown had to satisfy them beyond reasonable doubt that the accused
” did not have such a belief. Even if it were proper to discuss the
” mental aspect of a charge of rape in terms of a defence of reasonable
” mistake of fact, this direction as to onus would be erroneous.”
In R. v. Flannery and Prendergast 1969 V.R. 31, which purported to
apply Hornbuckle (ante), the trial judge had directed that:
” 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 things, gentlemen, an honest belief, that means a
” real genuine bona fide belief based upon reasonable grounds, that is
” to say, grounds that commend themselves to reasonable men as being
” reasonable that the girl in fact was consenting. . . .”
His further direction that it was for the accused to establish on the balance
of probability that he entertained such a belief was, not surprisingly, criticised
by the Supreme Court of Victoria, Winneke C.J. saying (at p. 33):
25
” Where there is absence of consent an accused’s belief, albeit
” mistaken in fact, that the woman was consenting to the act of
” intercourse necessarily relates to … the element of intention involved
” in the crime. It is impossible to dissociate that intention from a
” genuine belief in the mind of the accused, even though mistaken in
” fact, that such consent existed. The existence of such a belief
” necessarily negatives an awareness that the woman was not consenting,
” or a realization that she might not be and a determination to have
” intercourse with her whether she was consenting or not. It would,
” accordingly, negative an intention to have intercourse without consent
” inasmuch as the existence of such a belief would be inconsistent
” with such an intention:”
So far, so good, from the present appellants’ point of view. But the Chief
Justice continued:
” In a case where the evidence at the trial does raise [an issue of
” honest belief], its relevance is to the ingredient of the crime on which
” the burden of proof rests on the Crown. … It is apposite to quote a
” statement cited by Lord Reid in Warner v. Metropolitan Commis-
” sioner, [1968] 2 All E.R. 356, at p. 364: ‘The absence of mens rea
“‘ really consists in an honest and reasonable belief entertained by the
“‘ accused of the existence of facts which, if true, would make the act
” ‘ charged against him innocent’ “.
It therefore seems that the Supreme Court’s criticism was confined to the
onus of proving the absence of such a belief having been wrongly placed
by the trial judges on the accused, but that they concurred in holding that, in
the last analysis, the question was whether the Crown had established the
absence of a reasonable belief that the woman was consenting.
That case was followed by the Court of Criminal Appeal of New South
Wales in Reg. v. Sperotto and Salvietti [1970] 1 N.S.W.R. 502, where
Herron C.J. said (at p. 504):
” Although the fact of the act of intercourse may be admitted by
” the accused or proved beyond reasonable doubt to the satisfaction of
” the jury, the accused may negative any intention on his part to have
” intercourse with the woman regardless of her consent if he holds an
” honest belief on reasonable grounds in the existence of circumstances
” which, if true, would make his act of intercourse with the woman an
” innocent one (Warner v. Metropolitan Police Commissioner, per Lord
” Reid). This involves these three concepts, firstly, that he in fact
” held the belief that the woman was consenting to the act of intercourse,
” secondly, that he was mistaken in that belief and, thirdly, that he
” can point objectively to circumstances which provided him with
” reasonable grounds for his mistake.
” It then becomes necesary for the Crown as part of the ultimate
” onus which rests upon it to negative the existence of such belief, and
” this beyond reasonable doubt. This the Crown may do by reference
” to all the material adduced at the trial which tends to show that the
” belief asserted by the accused was not genuinely held by him or that
” the grounds upon which he relies for the foundation of his belief
” are, when examined in the light of all the circumstances, not a
” reasonable basis for the mistake which he claims to have made.”
Bridge J. regarded the foregoing cases of Hornbuckle, Daly and Flannery
and Prendergast as supporting the appellants’ submission that the certified
question calls for a negative answer, but in my respectful view this is not
clear. However that may be, Bridge J. was assuredly right in his citation
of another New South Wales decision as supporting the Crown’s contention.
I refer to Reg. v. Flaherty and Others (1968) 89 W.N. (Pt. 1) (N.S.W.) 141.
where Asprey J. said (at p. 148):
“… 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 reasonable belief in the existence of a state
” of facts which, if true, would make the act charged innocent.”
26
But to speak of “the defence of mistake” is, with respect, to use lax
language. In the context of the present case, it constitutes a challenge
that the mens rea necessary for rape existed, and it has a defensive connotation
only in the sense that, if a prima jade case of rape is established, it is for
the accused, either through cross-examination of the Crown witnesses, or
by his own evidence, or by a combination of the two, to raise an issue
fit to go to the jury as to his belief in the woman’s unwillingness.
No decision was cited to us directly supporting the submission of appellants’
counsel that honest belief, without more, is sufficient. The old case of
Reg. v. Flattery (1877) 13 Cox C.C. 388 certainly affords it no support.
It is true that Denman, J. there said (p. 392):
” There is one case where a woman does not consent to the act of
” connection and yet the man may not be guilty of rape, that is where
” the resistance is so slight and her behaviour such that the man may
” bona fide believe that she is consenting;”.
But the reference to the woman’s conduct must, I think, be taken to indicate
that the man was thereby both honestly and reasonably misled into thinking
that she was a willing party to the act of intercourse.
In this country a long line of authorities and numerous dicta indicate
that, when an accused challenges that he had the necessary mens rea
involved in the offence charged by asserting that he committed the actus reus
under a mistake of fact, his belief must have been based on reasonable
grounds. Of these cases, the best known are those arising from charges
of bigamy. It is true that in Reg. v. Turner (1862) 9 Cox C.C. 145,
Martin B. directed the jury simply to consider whether the accused woman
” had an honest belief that her first husband was dead “, and that although
Cleasby, B. purported in Reg. v. Horton (ante) to be following Turner,
he in fact made a vital addition by twice directing the jury that:
” You must find the prisoner guilty, unless you think that he had fair
” and reasonable grounds for believing, and did honestly believe, that
” his first wife was dead.”
But Reg. v. Tolson (ante) established the correctness of the latter direction
and it has been applied in countless bigamy cases ever since; for example,
in Reg. v. King [1964] 1 Q.B. 285, where Lord Parker, C.J. said (at p. 293):
” Honest belief is not enough; there must be an honest belief on
” reasonable grounds”.
Tolson had earlier been followed in Australia in Thomas v. The King (1937)
59 C.L.R. 279 and both were in their turn followed here in Reg. v. Gould
[1968] 2 QB 65 where Diplock L.J., as he then was, pointed out (at p. 76)
that the offence of bigamy:
“… is not an absolute one and that honest and reasonable belief in
” a fact affecting the matrimonial status of the defendant which, if
” true, would make his second marriage lawful and innocent can
” constitute a defence . . . .”
Such an approach has been criticised. In America, for example, Professor
Jerome Hall observed (1957 33 Indiana Law Journal, 5),
” Anglo-American law restricts the scope of ignorantia facti in ways
” which constitute serious limitations … An honest mistake is not
” sufficient. ‘ The apprehension of danger must be bona fide and
” ‘reasonable’ (Hill v. State 194 Ala. 11) …. The plain conse-
” quences of this application of objective liability to ignorantia facti is
” that persons who commit harms solely because they are mistaken
” regarding the material facts are nonetheless criminally liable, i.e.
” despite the complete lack of criminal intent …. (p. 11) The
” elimination of ‘ reasonableness’ as a substantive restriction of the
” doctrine of ignorantia facti would clarify the public mind regarding
” the nature of criminal conduct. It would facilitate analysis of the
” criminal law and stimulate a sounder administration of it.”
In this country, Russell (12th Ed., Vol. 1, p. 76), in the course of a discussion
of mens rea, refers to
27
” the ancient doctrine that the mistake must be reasonable ”
and adds:
” It is hardly necessary to point out that such a doctrine, based purely
” on an objective test, is out of keeping with the modern principle that
” the mens rea required by the common law is a subjective element.”
And Professor Glanville Williams has commented (Criminal Law, 2nd Ed.
p. 177):
“… it is not true to say that the general run of crimes can be com-
” mitted by inattention. … It is submitted that this is not the law.
” In the absence of words in the statute dispensing with proof of mens
” rea, it should be held that the crime can be committed only intention-
” ally or recklessly. If a person charged with bigamy believed that he
” was legally free to marry again, it cannot be said that the crime was
” committed either intentionally or recklessly, and the question whether
” the belief was unreasonable is irrelevant.”
And, after a discussion of reported cases, he concluded (p. 204):
” Even if, as a result of decisions like this, it must now be conceded
” that unreasonable mistake is no defence in bigamy, this only means
” that bigamy can be committed negligently. It does not prove that
” other crimes can be committed negligently.”
For myself, I am greatly impressed by these forceful passages and others
of a like kind to be found in the text books of many modern writers on the
criminal law. They give rise to two questions:
-
-
-
Are there any grounds for differentiating between bigamy and
rape in this matter of mistaken belief? I can think of none, and,
although counsel for the appellants understandably stressed that in
Tolson Wills, J. said (at p. 180) that ” there can be no crime without
” a tainted mind “, the rest of his judgment relates to a bona fide belief
on reasonable grounds held at the time of the marriage ceremony that
the spouse was dead. Counsel was unable to indicate any reason why
the two offences should be differently treated, and it should not be
overlooked that the definition of rape given by that master of the
criminal law, Stephen J., which I earlier quoted was given in the course
of his majority judgment in Tolson’s case. -
Are there any grounds for thinking that the established law in
bigamy is out of step with other aspects of criminal jurisprudence and
accordingly ought not to be applied to other cases and, in particular, is
inapplicable to the present case?
-
-
As lo that, while Tolson dealt with a statutory offence, the majority who
favoured an acquittal clearly did not consider that in so concluding they
were doing anything more than applying established and general principles
of the criminal law. Thus, Cave, J. said (at p. 181):
” At common law an honest and reasonable belief in the existence
” of circumstances, which, if true, would make the act for which a
” prisoner is indicted an innocent act has always been held to be a
” good defence. This doctrine is embodied in the somewhat uncouth
” maxim, ‘ actus non facit reum, nisi mens sit rea ‘. Honest and reason-
” able mistake stands in fact on the same footing as absence of the
” reasoning faculty, as in infancy, or perversion of that faculty, as in
” lunacy. Instances of the existence of this common law doctrine will
” readily occur to the mind “.
Again, Stephen, J. said (at p. 188):
” Apart, indeed, from the present case, I think it may be laid down as
” a general rule that an alleged offender is deemed to have acted under
” that state of facts which he in good faith and on reasonable grounds
” believed to exist when he did the act alleged to be an offence.
” I am unable to suggest any real exception to this rule, nor has one
” ever been suggested to me.”
A little later (p. 190), citing the dissenting judgment of Lord Esher, then
Brett, J. in Reg. v. Prince (1875) L.R. 2 C.C.R. 154, Stephen, J. commented:
28
” His judgment established at much length, and as it appears to me,
” unanswerably, the principle above explained, which he states as fol-
” lows: ‘ That a mistake of facts in reasonable grounds, to the extent
” ‘ that, if the facts were as believed, the acts of the prisoner would
” ‘ make him guilty of no offence at all, is an excuse, and that such an
” ‘ excuse is implied in every criminal charge and every criminal enact-
” ‘ ment in England ‘.”
Finally, having declared (p. 191) that,
” The general principle is clearly in favour of the prisoners,”
Stephen, J. proceeded to consider
” how does the intention of the legislature appear to have been against
” them,”
and concluded that in reality it was not.
To my way of thinking, such weighty observations as these make it im-
possible to put bigamy into a special category or to regard Tolson as turning
merely upon the wording of a particular statute. The majority view was
founded on common law principles of general applicability in the field of
criminal law for many years and, as Smith & Hogan put it (3rd Ed., 148, 149),
” The majority all relied on the maxim, actus non facit reum nisi mens
” sit rea, yet all emphasised that the defence was allowed because of (the
” accused’s) belief in good faith and on reasonable grounds that her hus-
” band was dead “.
In Bank of New South Wales v. Piper [1897] AC 383 (P.C.) which involved
the interpretation of a statute making it an offence to do certain acts ” with
” a view to defraud “, Sir Richard Couch said (at p. 389) :
“… the absence of mens rea really consists in an honest and reason-
” able belief entertained by the accused of the existence of facts which, if
” true, would make the act charged against him innocent “.
But as Professor Glanville Williams has pointed out (ibid., p. 203):
” The question of reasonableness was not in issue on the facts of the
” case.”
He contrasts this with the observation of Lord Atkin in Thorne v. Motor
Trade Association [1937] A.C. 797, at p. 809, that:
“… I do not think that doubt should exist upon a well established
” proposition in criminal law that normally a geuine belief in the exist-
” ence of facts as apart from law, which if they existed would constitute
” a defence, is itself a sufficient defence.”
But that had reference to the interpretation of section 29(1) of the Larceny
Act, 1916, relating to demanding with menaces “and without reasonable or
” probable cause “. The case therefore belongs to Class 2 of Bridge J’s. cate-
gories, just as does Wilson v. Inyang [1951] 2 K.B. 799, referred to in his
judgment, which turned on the ingredients of the statutory charge of
” wilfully and falsely using ” the title of ” physician “.
The law requires reasonable grounds for believing that physical action in
self-defence or the defence of another is called for: Reg. v. Rose (1884) 15
Cox C.C. 540, Owens v. H.M. Advocate 1946 JC 119, Reg. v. Chisam (1963)
47 Cr. App. R. 130, Reg. v. Fennell [1971] 1 Q.B. 428.
Finally, in relation to the critical comments of Professor Glanville Williams
that crimes requiring mens rea ought not to be capable of being committed by
inattention, it is important to recall that in Sweet v. Parsley [1970] AC 132,
Lord Diplock said in this House (at p. 163):
“… the importance of the actual decision of the nine judges who
” constituted the majority in Reg. v. Tolson . . . was that it laid down as
” a general principle of construction of any enactment, which creates a
” criminal offence, that, even where the words used to describe the
” prohibited conduct would not in any other context connote the
” necessity for any particular mental element, they are nevertheless 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
29
” grounds, in the existence of facts which, if true, would make the act
” innocent. As was said by the Privy Council in Bank of New South
” Wales v. Piper, the absence of mens rea really consists in such a
” belief by the accused.”
(P. 164):
” It has been objected that the requirement laid down in Reg. v.
” Tolson and the Bank of New South Wales v. Piper that the mistaken
” belief should be based on reasonable grounds introduces an objective
” mental element into mens rea. This may be so, but there is nothing
” novel in this. The test of the mental element of provocation which
” distinguishes manslaughter from murder has always been at common
” law and now is by statute the objective one of the way in which a
” reasonable man would react to provocation. There is nothing
” unreasonable in requiring a citizen to take reasonable care to ascertain
” the facts relevant to his avoiding doing a prohibited act.”
These words express the general approach of the criminal law adopted
over a wide spectrum, by courts applying the common law both here and
overseas, approved of to the extent already indicated by this House and by
courts of inferior jurisdiction, and in respect of a variety of offences. What
Professor Glanville Williams has described as ” the hoary error that a
” mistake to afford a defence to a criminal charge must be reasonable ”
(14 M.L.R. 485) is not only old but widely accepted. I indicated at an
early stage the approach which I should have been inclined to adopt in
relation to the direction on mens rea given in the present case had I felt
free to do so. It is, of course, true to say that there is no direct decision
of this House which compels my Lords now to uphold that direction, which
has been so vigorously attacked by appellants’ counsel. That being so,
Professor J. C. Smith has invited us (1975 Cr.L.R. 42) to hold that it was
a clear misdirection. In support, he cited the recent Court of Appeal
decision in Smith (D.R.) [1974] 1 All E.R. 632, where a man charged under
section 1(1) of the Criminal Damage Act, 1971, with damaging another’s
property without lawful excuse pleaded that he thought it was his own.
The Crown urged that, in order to establish ” lawful excuse ” as a defence,
it must be shown that the defendant honestly but mistakenly believed
on reasonable grounds that the facts were such that, had they existed, his
conduct would have been lawful. But, in giving the judgment of the court
allowing the appeal, James, L.J. stressed that the statutory offence under
Section 1 relates to ” A person who without lawful excuse destroys or
” damages any property belonging to another “, and added (at p. 636):
” Applying the ordinary principles of mens rea, the intention and
” recklessness and the absence of lawful excuse required to constitute
” the offence have reference to property belonging to another. It follows
” that in our judgment no offence is committed under this section if a
” person destroys or causes damage to property belonging to another
” if he does so in the honest though mistaken belief that the property
” is his own, and provided that the belief is honestly held it is irrelevant
” to consider whether or not it is a justifiable belief “.
It is, however, not without significance that, in relation to another section
of the Act (Section 5), which afforded a defence if at the material time the
accused believed that the person entitled to consent to the destruction or
damage of the property in question had consented, it was expressly provided
that:
” For the purposes of this section it is immaterial whether a belief
” is justified or not if it is honestly held “.
That exculpatory provision had no application to the defence relied upon in
the case, namely, that the accused believed that the property he had damaged
was his own, a defence which therefore had to be judged in accordance
with general principles. As to these. Professor Smith commented (ibid.)
that :
” The ordinary principles of mens rea should certainly be no less
” applicable to the common law offence of rape than to the statutory
” offence of criminal damage “.
30
Smith (D.R.) was a special case and at some future date the question
involved in it may have to be reconsidered. Be that as it may, had I felt
free to do so I would have acceded to the invitation extended by Professor
Smith to this House that we
” should decide that a mistake of a relevant fact is a defence if the
mistake was honest and genuine, even if it was also unreasonable”.
But regard must be had to the uniformity of approach over a wide area and
for a long time—Tolson, it should be remembered, was decided nearly
ninety years ago. Paying such regard, the conclusion I have come to is
that the necessary course is to uphold, as being in accordance with
established law, the direction given in this case by the learned trial judge as
to the necessity for the mistake of fact urged to be based on reasonable
grounds. The approach which I should have preferred must, I think,
wait until the legislature reforms this part of the law, just as it did in
relation to the former presumption of intending the reasonable consequence
of one’s actions by section 8 of the Criminal Justice Act 1967. The
proponents of such reform will doubtless have regard to the observations
of Lord Reid in Sweet v. Parsley (ante, at p. 150 B-F). On the other hand,
those who oppose the notion that honest belief should per se suffice, on the
ground that it facilitates the raising of bogus defences, should bear in mind
the observations of Dixon J. in Thomas v. The King (1937) 59 C.L.R. 279,
at 309 cited with approval by Lord Reid in Warner v. Metropolitan Police
Commissioner [1969] 2 A.C. at p. 274. But, the law being as it now is
and for a long time has been, I find myself obliged to say that the certified
point of law should be answered in the affirmative.
I should, however, make it clear that, even had I felt free to hold that
there had been “a misdirection, I would have been for applying the proviso
to section 2(1) of the Criminal Appeal Act, 1968. The evidence of the
accused as to the conduct of Mrs. Morgan was to the effect that she was
not merely submissive to their lust but manifested her enthusiastic
participation by acts of depravity even while another of their company was
in the act of having intercourse with her. Had she in fact behaved in that
way, not only would the accused have been justified in forming the belief
that she was a consenting party to intercourse, but they would have been
unreasonable had they failed to form it. Accordingly, had the jury
entertained any doubt regarding the truth of their belated allegations of
such depraved conduct, they must surely have acquitted all the accused.
The verdicts they returned can, I think, be interpreted only as an outright
rejection of such allegations, and it was accepted before this House that
Mrs. Morgan was not in fact a consenting party. I cannot think that
different verdicts would have been returned had the jury been directed that
they should acquit if they felt that there was a doubt as to whether the
accused honestly (even though unreasonably) thought that she was.
In my judgment, in the light of all the evidence in this extraordinary
case, no reasonable jury could have failed to convict all four accused even
had they been directed as counsel for the appellants urges they should.
Accordingly, even had I acceded to the submission that there was a
misdirection, I should have held that no miscarriage of justice resulted
in respect of any of the accused. I would therefore still have said, as I now
do, that the appeals of all four should be dismissed.
Lord Fraser of Tullybelton
MY LORDS,
The answer to the general question raised in this case depends, in my
opinion, on the nature of the mens rea or mental element in the definition
of the crime of rape. Most offences, whether at common law or under
statute, include some mental element, but the description of the offence
normally refers only to the prohibited act, leaving the mental element to be
implied. Thus, the definition of rape in East’s Pleas of the Crown p. 434
is as follows: —
31
” Rape is the unlawful carnal knowledge of a woman by force and
” against her will.”
The nature of the mental element differs in different offences, as was explained
by Stephen J. in the Queen v. Tolson (1889) 23 Q.B.D. 168 at p. 185, and at
p. 187 he said this: —
” The full definition of every crime contains expressly or by implication
” a proposition as to a state of mind. Therefore, if the mental element
” of any conduct alleged to be a crime is proved to have been absent
” in any given case, the crime so defined is not committed; or, again,
” if a crime is fully defined, nothing amounts to that crime which does
” not satisfy that definition.”
That passage was quoted in Sweet v. Parsley [1970] AC 132 at 162D by
Lord Diplock who went on to say: —
” Where the crime consists of doing an act which is prohibited by
” statute the proposition as to the state of mind of the doer which is
” contained in the full definition of the crime must be ascertained
” from the words and subject-matter of the statute.”
Rape being a crime at common law, the proposition as to the state of mind
of the doer which is contained in the full definition has to be collected
from such judicial dicta or other authoritative statements of law as are
available.
All the definitions of rape quoted to us which made any reference to the
state of mind required of the rapist included a statement to the effect that: —
” One of the elements of the crime of rape is an intention on the part
” of an accused person to have intercourse without consent.”
I take that quotation from R. v. Flannery and Prendergast [1969] V.R.
31 at 32; decided by the full Court in Victoria. Statements to similar
effect are to be found in R. v. Daley [1968] V.R. 257, R. v. Buries [1947]
V.L.R. 392 and R. v. Hornbuckle [1945] V.L.R. 281 and R. v. Sperotto [1970]
1 N.S.W.R. 502. In England there are statements to the same effect in
Tolson, supra, by Stephens J. at p. 185, and in R. v. Wright (1866) 4 F
and F 967 Baron Channell said that there must be ” an intention to commit
” the act, notwithstanding any resistance on the part of the prosecutrix.”
In the present case, the learned judge’s direction to the jury about the
mental element in the crime fell into two parts. The first part was exactly
in accordance with the cases to which I have referred. I need not quote
the direction again in full but I would particularly refer to one sentence where
the learned judge emphasised that the prosecution must prove ” not merely
” that [the defendant] intended to have intercourse with [the woman] but
” that he intended to have intercourse without her consent.” He continued,
with what was in my opinion complete logic, ” Therefore, if the defendant
” believed or may have believed that [the woman] consented to him having
” sexual intercourse with her, then there would be no such intent in his
” mind and he would not be guilty of the offence of rape, but such a belief
” must be honestly held by the defendant . . .”. Strictly speaking, I do
not think that a belief, if held at all, can be held otherwise than honestly,
but I read that last phrase as a warning to the jury to consider carefully
whether the evidence of the defendant’s belief was honest. So far, the
direction was unexceptionable. The difficulty arises in the immediately
following sentence where the learned judge said this:-
” And, secondly, his belief must be a reasonable belief; such a belief
” as a reasonable man would entertain if he applied his mind and
” thought about the matter.”
That second direction, although not without precedent, is in my opinion
impossible to reconcile with the first. If the defendant believed (even on
unreasonable grounds) that the woman was consenting to intercourse then
he cannot have been carrying out an intention to have intercourse without
her consent.
The Court of Appeal, Criminal Division, did not feel the logical difficulty
because they appear to have read the second part of the direction, and earlier
32
dicta to the same effect, as meaning that the intention was related only to
the intercourse and not to the absence of consent. Bridge J. said:
” Dicta to the effect that the mens rea of rape is an intention to have
” intercourse without consent really carry the matter no further. They
” tell us that the act of intercourse must be intentional, which by its
” nature it inevitably is, but throw no light on the state of mind required
” to be shown quoad absence of consent.”
With all respect, I cannot regard that as the proper reading of the passage
in the learned judge’s direction or of earlier dicta in similar terms. For one
thing, it would be unnecessary because, as Bridge J. said, the act of inter-
course by its nature inevitably is intentional. It seems to me that the
meaning of the direction, and of the earlier dicta is that the mens rea of
rape is an intention to have intercourse with a non-consenting woman or
to have non-consensual intercourse. If that is so, then the logical difficulty
of requiring a belief in the woman’s consent to be based on reasonable
grounds arises sharply. If the effect of the evidence as a whole is that the
defendant believed, or may have believed, that the woman was consenting,
then the Crown has not discharged the onus of proving commission of the
offence as fully defined and, as it seems to me, no question can arise as to
whether the belief was reasonable or not. Of course, the reasonableness or
otherwise of the belief will be important as evidence tending to show
whether it was truly held by the defendant, but that is all.
The argument for the Crown in support of an affirmative answer to the
question in this case was not supported by any English decision on rape.
It was supported by reference to English decisions in relation to other
offences which are more or less analogous to rape, and to Australian
decisions on rape, some of which I have already referred to. The English
case upon which most reliance was placed was Tolson, supra, which was
concerned with bigamy, and which decided that a bona fide belief on
reasonable grounds in the death of the husband at the time of the second
marriage afforded a good defence to the indictment for bigamy. The main
argument in the case was concerned with the question whether a mistaken
belief could be a defence to a charge of bigamy at all, and comparatively
little attention was given to the subsidiary point of whether the belief had
to be based upon reasonable grounds. The case seems to me therefore of
only limited assistance for the present purpose. We were invited to overrule
Tolson but, as it has stood for over eighty years, and has been followed
in many later cases, I would not favour that course. But in my opinion
the case is distinguishable from the present. Bigamy was a statutory offence
under the Offences Against the Person Act 1861, section 57. So far as
appears from the words of the section, bigamy was an absolute offence,
except for one defence set out in a proviso, and it is clear that the mental
element in bigamy is quite different from that in rape. In particular, bigamy
does not involve any intention except the intention to go through a marriage
ceremony, unlike rape in which I have already considered the mental
element. So, if a defendant charged with bigamy believes that his spouse
is dead, his belief does not involve the absence of any intent which forms
an essential ingredient in the offence, and it is thus not comparable to the
belief of a defendant charged with rape that the woman consents. The
difficulty of arguing by analogy from one offence to another is strikingly
illustrated by reference to the case of R. v. Prince (1875) 13 Cox C.C. 138.
That case dealt with abduction of a girl under the age of sixteen, an offence
created by section 55 of the Act of 1861. Lord Bramwell, with whom five
other judges concurred, held that a mistaken and reasonable belief by the
defendant that the abducted girl was aged sixteen or more was no excuse,
because abduction of a young girl was immoral as well as illegal, although
% mistaken and reasonable belief by the defendant that he had the consent
of the girl’s father would have been an excuse. If such differences can
exist about mistaken beliefs of different facts in one offence, it is surely
dangerous to argue from one offence to another. No doubt a rapist, who
mistakenly believes that the woman is consenting to intercourse, must be
behaving immorally, by committing fornication or adultery. But those forms
of immoral conduct are not intended to be struck at “by the law against rape ;
33
indeed, they are not now considered appropriate to be visited with penalties
of the criminal law at all. There seems therefore to be no reason why they
should affect the consequences of the mistaken belief.
I feel more difficulty about the Australian, and especially the Victorian,
rape cases. I have already referred to their definition of the crime of rape
as including an intention to have intercourse against the consent of the
woman. Notwithstanding that, certain of them contain judicial dicta that a
mistaken belief by the accused that the woman was consenting was no
defence unless based upon reasonable grounds (see Buries [1947] V.L.R. at
402), but in none of these cases did the precise point with which we are now
concerned arise for decision. In some of them the Court accepted that
mens rea would be excluded by the mistaken belief only if it was based
on reasonable grounds. But they did so either because authorities which
they considered binding on them ” constrained” them to do so (R. v.
Sperotto, supra, at p. 505), or by reference to particular authorities without
separate consideration of the point (R. v. Flannery, supra, at p. 34). Accor-
dingly, those cases do not contribute any additional argument tending to
resolve the logical difficulty to which I have referred in considering the
learned judge’s direction in this case, and which seems to me insuperable.
The authority referred to in Flannery was Reg. v. Warner [1969] 2 A.C. 256
where Lord Reid at p. 276C quoted with approval the following words from
Bank of New South Wales v. Piper [1897] AC 383:
” the absence of mens rea really consists in an honest and reasonable
” belief entertained by the accused of the existence of facts which if
” true, would make the act charged against him innocent”. (My italics.)
Later in his speech Lord Reid said (p. 280C):
” Mens rea or its absence is a subjective test, and any attempt to sub-
” stitute an objective test for serious crime has been successfully
” resisted “.
With the greatest respect I cannot see how it could be a subjective test,
if the absence of mens rea includes the essentially objective element of being
reasonable.
For these reasons, I am of the opinion that there is no authority which
compels me to answer the question in this case in what I would regard as
an illogical way. I would therefore answer the question in the negative—
that is in favour of the accused. But for the reasons stated by my noble
and learned friends, Lord Hailsham and Lord Edmund-Davies, I would
apply the proviso to the Criminal Appeal Act 1968, section 2(1), and I
would refuse the appeal.
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