R v K [2001] UKHL 41; [2002] 1 AC 462

K, aged 26, was charged with indecent assault on a 14-year-old girl under section 14(1) of the Sexual Offences Act 1956. He claimed she said she was 16. The House of Lords held that an honest belief the victim was 16 or over was a defence.

Facts

The appellant, K, a man of good character aged 26, was charged on a single count of indecent assault contrary to section 14(1) of the Sexual Offences Act 1956. The complainant, C, was 14 years old at the time. K’s defence was that the sexual activity was consensual, that C had told him she was 16, and that he had no reason to disbelieve her.

A preliminary issue was raised as to whether the prosecution had to prove that K did not honestly believe C was 16 or over. Judge Thorpe at Chichester Crown Court ruled in K’s favour, relying on B (A Minor) v DPP [2000] 2 AC 428. The Court of Appeal reversed that ruling. K appealed to the House of Lords.

Issues

The certified questions were:

(a) Whether a defendant is entitled to be acquitted of indecent assault on a complainant under 16, contrary to section 14(1), if he may hold an honest belief that the complainant was aged 16 or over; and

(b) If so, whether such belief must be held on reasonable grounds.

Arguments

Crown

Counsel for the Crown submitted that section 14, read as a coherent scheme, indicated that subsections (3) and (4) expressly defined circumstances in which a defendant’s belief exonerated him; the omission of a comparable provision in subsection (2) demonstrated Parliament’s intention that belief as to age was no defence. The Crown also relied on a historical line of authority (notably R v Prince (1875) LR 2 CCR 154, R v Forde [1923] 2 KB 400 and R v Maughan (1934) 24 Cr App R 130) suggesting a special rule of construction for age-based sexual offences.

Appellant

K relied on the constitutional presumption that mens rea is an essential ingredient of every statutory offence unless displaced by express words or necessary implication, as affirmed in Sweet v Parsley [1970] AC 132 and B (A Minor) v DPP [2000] 2 AC 428. There was nothing in section 14 which, by necessary implication, displaced that presumption in respect of the victim’s age.

Judgment

The House of Lords unanimously allowed the appeal and answered question (a) in the affirmative and question (b) in the negative.

Lord Bingham held that the 1956 Act was a consolidation Act drawn from disparate sources and could not properly be read as a single coherent legislative scheme. He traced the legislative history through the Offences against the Person Act 1861, the Criminal Law Amendment Acts of 1880, 1885 and 1922, and the Age of Marriage Act 1929, showing that the anomalies identified in R v Forde, R v Laws, R v Keech and R v Maughan had long been recognised as absurd but had been perpetuated by consolidation.

The House applied the constitutional presumption that mens rea is required in every statutory offence unless displaced expressly or by necessary implication. Lord Bingham cited Lord Reid in Sweet v Parsley:

there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did. That means that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea

He also cited Lord Goddard CJ in Brend v Wood (1946) 62 TLR 462:

It is of the utmost importance for the protection of the liberty of the subject that a Court should always bear in mind that unless a statute, either clearly or by necessary implication, rules out mens rea as a constituent part of a crime, the Court should not find a man guilty of an offence against the criminal law unless he has a guilty mind.

Lord Steyn emphasised that the presumption operates as a constitutional principle, requiring a “compellingly clear” implication to displace it (following Lord Nicholls in B v DPP). Section 14(1) was silent as to mens rea in relation to the victim’s age, and no compellingly clear implication displaced the presumption. Unlike sections 5 and 6 (concerning unlawful sexual intercourse), which contained an express “young man’s defence” in section 6(3) necessarily excluding the general presumption, section 14 contained no such express scheme.

Lord Hobhouse, endorsing R v Kimber [1983] 1 WLR 1118, confirmed that indecent assault requires proof of mens rea as to the assault itself, and that the presumption applies equally to the age element introduced by section 14(2). The historical special rule for age-based sexual offences derived from R v Prince had been decisively rejected in B v DPP.

Lord Millett agreed with the result but expressed misgivings, considering that the decision would leave section 14 incoherent, particularly because subsection (3) required a reasonable as well as honest belief in a valid marriage, whereas the belief as to age now imported by the presumption need only be honest.

Concluding qualifications

Lord Bingham emphasised: (1) the decision has no bearing where the victim did not in fact consent; (2) the belief need not be reasonable, but the reasonableness of the belief is relevant to whether it is genuinely held, following R v Williams (Gladstone) [1987] 3 All ER 411; (3) the presumption does not apply to sections 5 and 6 of the 1956 Act, which contain their own express scheme; and (4) indecent assault remains a potentially very serious offence.

Implications

The decision confirms that where a statutory sexual offence is silent as to the mental element concerning the age of the complainant, the common law presumption of mens rea applies, and can only be displaced by express words or a compellingly clear necessary implication. An honest, though not necessarily reasonable, belief that the complainant was aged 16 or over is a defence to a charge of indecent assault under section 14(1) of the 1956 Act.

The judgment reinforces the constitutional status of the mens rea presumption articulated in Sweet v Parsley and applied in B (A Minor) v DPP, and finally disposes of any surviving argument, derived from R v Prince, that age-based sexual offences form a special category of strict liability. It also demonstrates the willingness of the House to depart from long-standing but anomalous authorities such as R v Forde, R v Laws, R v Keech and R v Maughan.

The practical significance is considerable for criminal practice: prosecutors must be prepared to disprove an honest belief as to age where raised as a defence. Lord Bingham however cautioned that the reasonableness of a belief remains highly relevant to whether the jury accepts it as genuine. The decision does not apply to offences of unlawful sexual intercourse under sections 5 and 6, which contain express provisions.

The House also drew attention to the unsatisfactory state of the law and the need for Parliament to reconsider the law on sexual offences comprehensively, referencing the Home Office review “Setting the Boundaries” and the Law Commission’s draft criminal code. Lord Bingham observed that the rule of law is ill-served if criminal statutes are drafted so widely that prosecutorial discretion is required to avoid injustice.

Verdict: Appeal allowed. The first certified question was answered in the affirmative and the second in the negative: a defendant is entitled to be acquitted of indecent assault under section 14(1) of the Sexual Offences Act 1956 if he honestly believed the complainant was aged 16 or over, and that belief need not be held on reasonable grounds.

Source: R v K [2001] UKHL 41; [2002] 1 AC 462