DPP v Morgan [1976] AC 182

Four RAF men, including Mrs Morgan’s husband, were convicted of multiple rapes. They argued they honestly believed she consented, based on the husband’s assurances. The House of Lords split on whether such belief must be reasonable, but unanimously upheld the convictions under the Criminal Appeal Act 1968 proviso.

Facts

The four appellants, Morgan (a senior NCO in the RAF) and three younger RAF men, spent the evening drinking together. Morgan proposed that they return to his home so that the three younger men could have sexual intercourse with his wife, Mrs Daphne Ethel Morgan. They did so in the early hours of 15 August 1973.

Mrs Morgan was asleep in a bedroom she shared with her eleven-year-old son. According to her evidence, accepted by the jury, she was suddenly awakened, seized and dragged or carried by the four men from her bed to another room containing a double bed. She said she yelled to her younger son to call the police, and later called to her elder son on the landing to get the police and screamed. She described being held by wrists and ankles, her face covered and nose pinched so she could not breathe, and being placed on the double bed.

On her account, throughout the incident she did not consent, made her opposition very plain, and was never free from restraint. Each of the three younger appellants in turn had sexual intercourse with her while the others held her limbs or committed lewd acts. When they had finished, Morgan himself had intercourse with her. Immediately afterwards she fled to the nearby hospital, complained she had been raped, and medical and hospital evidence corroborated her prompt complaint.

The appellants’ police statements (admissible only against each maker) largely corroborated Mrs Morgan’s description and, in lurid detail, amounted to confessions of multiple rapes. At trial they repudiated those statements and gave a wholly different account. They accepted there had been some struggle and that she was moved forcibly from her bed, but claimed that, once in the second bedroom, she consented enthusiastically and participated in what they presented as a sexual orgy. They alleged that she caressed and masturbated them, performed oral sex, made noises of pleasure and, when the acts were over, made a comment suggesting satisfaction.

The three younger appellants also claimed Morgan had told them on the way to the house that his wife was “kinky” and might appear to struggle, but that this was pretence to become sexually aroused. Morgan denied saying this, though he did invite them to have intercourse with his wife. It was common ground on appeal that in fact Mrs Morgan never consented.

Morgan, as husband, was not charged with rape (the then common law rule being that a husband could not rape his wife) but was charged with and convicted of aiding and abetting the rapes committed by the others. The other three were each convicted of rape and of aiding and abetting the others’ rapes.

Issues

Certified question

The Court of Appeal certified the following question of law of general public importance:

" 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 ".

Accordingly, two main issues arose before the House of Lords:

• What is the mental element (mens rea) for rape, and in particular does an honest but unreasonable belief in the woman’s consent negate rape?
• If the trial judge’s direction on this point was wrong, should the convictions nonetheless be upheld under the proviso to section 2(1) of the Criminal Appeal Act 1968?

The trial judge’s direction

Mr Justice Kenneth Jones directed the jury that 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."

He then instructed the jury that the prosecution had to prove an intention to have intercourse without consent:

" 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."

Thus, the judge required the jury to reject an otherwise honest belief in consent unless it was also reasonable.

Judgment

General approach to mens rea in rape

The House unanimously rejected the prosecution’s extreme submission that rape required no mental element beyond an intention to have intercourse with a woman who in fact did not consent. The Law Lords accepted that rape is not an absolute offence and that there must be a guilty mental state concerning the absence of consent.

Several definitions and earlier authorities were reviewed. Lord Edmund‑Davies cited East and the current edition of Archbold, and noted that practice for centuries was to treat rape as a violent crime, involving intercourse “by force, fear or fraud”. He concluded that these variants:

" indicate that knowledge by the accused of the woman’s
" unwillingness to have intercourse is essential to the crime of rape."

Stephen J’s statement in R v Tolson was also relied upon:

"’ Mens rea‘ means … in the case of rape, an intention to have
" forcible connection with a woman without her consent."

Lord Hailsham agreed that the prohibited act in rape is non‑consensual intercourse and that the necessary mens rea is an intention to have intercourse knowing the woman does not consent or being reckless as to whether she consents (“nolens volens”), rather than a mere intention to have intercourse simpliciter.

Rape was treated as a crime of “basic intent”: the mental element corresponds to the actus reus (intercourse without consent), and does not include any ulterior purpose beyond that.

Honest but unreasonable belief: division in the House

The House was sharply divided on whether an honest but unreasonable belief in consent suffices to negate the necessary mens rea.

Lords Cross, Hailsham and Fraser: honest belief suffices (question answered No)

Lord Cross analysed the ordinary meaning of “rape” and concluded that, in popular and legal usage, it imports at least indifference to the woman’s consent. He stated:

" Rape, to my mind, imports at least
" indifference as to the woman’s consent."

On that view, a man who genuinely believes a woman is consenting, however foolishly, lacks the intention to have intercourse “without consent” or with indifference to consent, and so lacks the mental element for rape. Reasonableness is relevant only as evidence bearing on whether the belief was honestly held, not as an independent legal requirement.

He therefore held that the summing‑up “contained a misdirection” in requiring a reasonable belief, but considered that the misdirection made no practical difference in this case. He applied the proviso to section 2(1) of the Criminal Appeal Act 1968 and would dismiss the appeals.

Lord Hailsham adopted a similar analysis. He held that the two propositions in the trial judge’s direction (“in the first place” and “secondly”) were:

" wholly irreconcileable."

If the prosecution must prove an intention to have intercourse without consent, then any genuine belief in consent, whether reasonable or not, negatives that intention. To insist on reasonableness is to import an impermissible objective element into intent, akin to the discredited reasoning in DPP v Smith. Reasonableness can only be evidential.

Lord Hailsham concluded:

" for the above reasons I would answer the question certified in the
" negative, but would apply the proviso … these appeals should be dismissed."

Lord Fraser agreed. Citing Stephen J and other authority, he accepted that the mental element is an intention to have intercourse without the woman’s consent. If a defendant believes she is consenting, then:

" he cannot have been carrying out an intention to have intercourse without
" her consent."

Accordingly, any honest belief in consent, however unreasonable, destroys the specific intention required for rape. He stressed that reasonableness remains important only as evidence of whether belief existed. He answered the certified question “in the negative” but also applied the proviso to uphold the convictions.

Lords Simon and Edmund‑Davies: belief must be honest and reasonable (question answered Yes)

Lord Simon agreed with Lord Edmund‑Davies that the authorities required the certified question to be answered “Yes”. He accepted that rape’s mental element is knowledge that the woman is not consenting or recklessness as to that, but treated the problem through a wider doctrinal framework distinguishing crimes of “basic” and “ulterior” intent, and evidential versus probative burdens.

He reasoned that rape is a crime of basic intent and that proof of intercourse without consent ordinarily raises a presumption of the corresponding mens rea, thereby shifting the evidential burden to the accused. To displace this, the accused must raise “a case fit for the jury’s consideration” that he believed the woman consented. Drawing on R v Tolson, self‑defence cases and the Privy Council’s statement in Bank of New South Wales v Piper, he treated general common law principle as requiring that such exculpatory belief be both honest and reasonable:

" an honest and reasonable belief in facts which, if true, would make the
" questioned act an innocent one."

He endorsed Bridge J’s explanation that the requirement of reasonable grounds reflects that a bare assertion of belief with no rational basis is too insubstantial to put the issue before the jury, and also that the law must fairly balance the interests of victim and accused. He therefore answered the certified question in the affirmative but, like the others, would apply the proviso and dismiss the appeal.

Lord Edmund‑Davies undertook an extensive survey of English and Australian authority on mistaken belief as to facts, including bigamy cases such as R v Tolson, R v King, R v Gould and Thomas v The King, as well as self‑defence and other contexts. He accepted that, conceptually, an honest (even unreasonable) belief in consent is incompatible with an intention to rape, and indicated that, if free to do so, he would have preferred a purely subjective test.

However, he considered himself constrained by long‑standing authority that, where a defendant relies on a mistake of fact to negate mens rea, that mistake must be both honest and based on reasonable grounds. He cited Lord Diplock’s approval in Sweet v Parsley of the principle from Tolson and Piper that an absence of mens rea “really consists” in such honest and reasonable belief, and concluded:

" I find myself obliged to say that the certified
" point of law should be answered in the affirmative."

Nonetheless, he considered that even if there had been misdirection he would apply the proviso. On the jury’s findings, the defendants’ account of Mrs Morgan’s alleged enthusiastic participation had been wholly rejected as false; had the jury entertained any doubt about that account, they would have acquitted. On any realistic view, no jury could sensibly have thought that the appellants, on these facts, honestly believed in consent.

Application of the proviso

All members of the House agreed that, whether or not there was a misdirection on the need for reasonable grounds, no miscarriage of justice had occurred and the proviso to section 2(1) of the Criminal Appeal Act 1968 should be applied.

Lord Cross pointed out that the only genuine issue at trial, given the appellants’ own evidence, was whether the events were “a multiple rape or a sexual orgy”. The jury’s acceptance of Mrs Morgan’s account and concomitant rejection of the appellants’ evidence meant that they could not at the same time have thought the appellants honestly (even unreasonably) believed she consented. Other Law Lords expressed similar views: on the totality of the evidence, there was “no conceivable way” in which a miscarriage of justice could have occurred.

Implications

This decision has a complex legacy. On the certified question, a majority of the House (Lords Cross, Hailsham and Fraser) held that an honest belief in the complainant’s consent, however unreasonable, suffices to negate the mental element of rape. Reasonableness is evidential only. A minority (Lords Simon and Edmund‑Davies) thought that, on established authority, the belief must be honest and reasonable.

All, however, agreed that the mens rea of rape is an intention to have intercourse without the woman’s consent, or reckless indifference as to whether she consents, and that rape is not an absolute liability offence. The case also clarifies the distinction between evidential and probative burdens: once the Crown has proved intercourse without consent, the evidential burden may shift to the defendant to raise a credible issue of mistaken belief, after which the probative burden remains on the Crown.

Practically, the House’s unanimous application of the proviso confirms that even an identified misdirection on mens rea will not result in quashing a conviction where, on the evidence, no reasonable jury could have acquitted. The case is therefore significant both for the substantive law of rape (particularly mistaken belief in consent) and for appellate treatment of misdirections under the Criminal Appeal Act 1968.

Verdict: The House of Lords dismissed all four appeals, applied the proviso to section 2(1) of the Criminal Appeal Act 1968, and upheld the convictions for rape and for aiding and abetting rape.

Source: DPP v Morgan [1976] AC 182