Gammon (Hong Kong) v Attorney General of Hong Kong

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

Section 14 of the 1956 Act is in these terms:

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

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

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

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

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

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

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

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

It was not long before this anomaly became apparent. In R v Forde [1923] 2 KB 400 a young man, under the age of 23, had intercourse with a 15 year-old girl. He was charged with offences against section 5(1) of the 1885 Act and section 52 of the 1861 Act, both offences relating to the same act of intercourse. He pleaded not guilty to the first (more serious) offence but guilty to the second and was bound over. It was found as a fact that he had had reasonable cause to believe that the girl was over 16 and the charge under section 5 was not proceeded with. He appealed by leave of the trial judge, and it was argued that, to avoid absurdity, the statutory defence should be available in relation to the indecent assault charge as well as the carnal knowledge charge, where the indecent assault was the act of carnal knowledge. Counsel for the crown did not contend that the result of the statute was not absurd but said the law was clear. The Court of Criminal Appeal upheld the conviction. Giving the judgment of the court Avory J said, at p 404:

In R v Laws (1928) 21 Cr App R 45 the defendant had intercourse with a girl aged 15 years and 9 months. He was about a year older. He could rely on the statutory defence to a charge laid against him under section 5 of the 1885 Act, but pleaded guilty to a count of indecent assault arising out of the same incident. Lord Hewart CJ, at p 46, described it as "a grotesque state of affairs that the law offers a defence upon the major charge, but excludes that defence if the minor charge is preferred". But the conviction was upheld. The defendant's sentence of four months' imprisonment was reduced to a nominal sentence of one day.

The defendant in R v Keech (1929) 21 Cr App R 125 was aged 21 at the relevant time. He had intercourse with a girl under the age of 16 and faced counts of unlawful carnal knowledge and indecent assault, the facts relied on in relation to both sets of counts being the same. The mother of the victim gave evidence that at the time of the relevant events the girl looked 18, and but for the recent increase in the minimum age of marriage the two would have been married. The defendant was acquitted on the carnal knowledge count, no doubt in reliance on the statutory defence, but was convicted on the indecent assault count. The 1922 Act was again described as "grotesque" (at p 128) and the legislation was described by Lord Hewart CJ as "amazing" (p 131). But the conviction was upheld and the sentence of one month's imprisonment reduced to one day, which permitted the immediate discharge of the defendant.

Since the 1956 Act was a consolidation Act, there was no opportunity to correct this apparent absurdity. Section 5 of this Act again made it a felony to have unlawful sexual intercourse with a girl under the age of 13. Section 6 as enacted again made it an offence, subject to the exceptions in the section, for a man to have unlawful sexual intercourse with a girl not under the age of 13 but under the age of 16. One of the exceptions, in subsection (2), corresponded to the invalid marriage exception in section 14(3). The second exception, in subsection (3), reproduced the statutory or young man's defence. Thus the anomaly highlighted by the cases cited above was perpetuated. Asked to suggest any reason why it could rationally have been intended to provide the statutory defence where full intercourse took place and no defence based on belief as to the child's age when intercourse was charged as indecent assault, leading counsel for the crown in the present appeal was unable to assist, as his predecessor in R v Forde had been in 1923.

Even before enactment of the 1956 Act, a lacuna in the existing legislation had come to light. In both Fairclough v Whipp [1951] 2 All ER 834 and Director of Public Prosecutions v Rogers [1953] 1 WLR 1017 there had been objectionable acts of indecency, in the first case involving an adult man and a child of nine, in the second a father and his eleven year-old daughter. But in neither case had there been an assault since the child had, at the adult's invitation, touched him, albeit indecently. Following a report of the Criminal Law Revision Committee in 1959 (Cmnd 835) Parliament enacted the Indecency with Children Act 1960 which in section 1(1) provided:

In reaching this conclusion the House relied on

The rule that a person under the age of 16 could not in law consent to what would otherwise be an indecent assault led to the description of an offence under section 14(1) or 15(1) against a victim under the age of 16 as an absolute offence or an offence of strict liability. These descriptions were a misnomer. There always had to be such deliberation in the conduct of the defendant as would be necessary to prove an assault. But the need for mens rea in a fuller sense was made clear by the Court of Appeal (Criminal Division) (Lawton LJ, Michael Davies and Sheldon JJ) in R v Kimber [1983] 1 WLR 1118. In that case the charge was one of indecent assault contrary to section 14(1) of the 1956 Act and the victim was an adult. The recorder directed the jury that the sole issue for their consideration was whether the victim had given her real and genuine consent, adding that it did not matter whether the defendant believed or thought she was consenting. This was held to be a misdirection, at pp 1121E-1122A:

In B (A Minor) v Director of Public Prosecutions [2000] 2 AC 428 the House considered section 1(1) of the 1960 Act in the light of the presumption that guilty knowledge is an essential ingredient of a statutory offence unless it is shown to be excluded by express words or necessary implication. It found no express words and no necessary implication having that effect. It was accordingly necessary for the prosecution to prove the absence of a genuine belief on the part of the defendant, whether reasonable or not, that the victim had been 14 or over. The House was invited in that case (see pp 457G, 473A) to treat the Acts of 1956 and 1960 as part of a single code, and that approach seems to me to be plainly correct. It is at once obvious that if an absence of genuine belief as to the age of an under-age victim must be proved against a defendant under section 1 of the 1960 Act but not against a defendant under section 14 of the 1956 Act, another glaring anomaly would be introduced into this legislation. But that conclusion does not relieve the House of the need to carry out, in relation to section 14, the task that it carried out in relation to section 1.

Neither in section 14 nor elsewhere in the 1956 Act is there any express exclusion of the need to prove an absence of genuine belief on the part of a defendant as to the age of an under-age victim. Had it been intended to exclude that element of mens rea it could very conveniently have been so provided in or following subsection (2)

For reasons already given, significance cannot be attached to the inclusion of grounds of exoneration in subsections (3) and (4) and the omission of such a ground from subsection (2), although subsections (3) and (4) do reflect parliamentary recognition that a defendant should not be criminally liable if he misapprehends a factual matter on which his criminal liability depends. There is nothing in the language of this statute which justifies, as a matter of necessary implication, the conclusion that Parliament must have intended to exclude this ingredient of mens rea in section 14 any more than in section 1. If the effect of the presumption is read into section 14, with reference to the defendant's belief as to the age of the victim, no absurdity results. With the wisdom of hindsight it can be seen that Avory J was right to hold, in R v Forde [1923] 2 KB 400, that the statutory defence in section 2 of the 1922 Act could not be read into section 1 of that Act, but he was wrong in failing to apply to section 1 of the 1922 Act the overriding presumption referred to in paragraph 17 above. He may, no doubt, have been misled by the now discredited authority of R v Prince (1875) LR 2 CCR 154, which although not apparently cited will have been very familiar to him.

I consider that Judge Thorpe reached the right conclusion. The Court of Appeal gave more weight to the re-enactment of the relevant provisions in 1956 than was appropriate for a consolidation Act.

I would accordingly give an affirmative answer to the first certified question. It is common ground that a negative answer should be given to the second question. In giving those answers I would make the following concluding points:

The rule of law is not well served if a crime is defined in terms wide enough to cover conduct which is not regarded as criminal and it is then left to the prosecuting authorities to exercise a blanket discretion not to prosecute to avoid injustice.

I find it unnecessary to consider an argument addressed to the House based on article 6 of the European Convention on Human Rights.

For these reasons, and also those given by my noble and learned friends Lord Steyn and Lord Hobhouse of Woodborough, I would allow this appeal.

I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Bingham of Cornhill. For the reasons he gives, and with which I agree, I too would allow this apeal.

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

The question before the House is one of the proper construction of section 14(1) of the Sexual Offences Act 1956. Counsel for the Director of Public Prosecutions invited the House to approach the question from a historical perspective. He started by emphasising the statutory precursors of section 14 of the 1956 Act, and dicta in R v Prince (1875) LR 2 CCR 154; in R v Forde [1923] 2 KB 400; and in R v Maughan (1934) 24 Cr App R 130. He said that Parliament, by which he meant the legislators making up the composite body, has consistently taken the view that in respect of age-based sexual offences, of which section 14 is an example, it is not a defence that the accused genuinely thought that the young person was over the prescribed age. This is another way of saying that there is a special rule of construction in respect of such offences under the 1956 Act. If this submission is correct, it follows that an accused's genuine belief that the girl was over 16 cannot be defence under section 14(1).

There are a number of interacting answers to this argument. First, as Lord Reid observed in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 , 613-15:

That brings me to the more formidable argument on behalf of the Director of Public Prosecutions based on the language of section 14(1). In B (A Minor) v Director of Public Prosecutions the House held that the 1956 Act is not the product of a legislative initiative designed to devise a more rational system. Except to point out that there is a strong theme running through the provisions of the 1956 Act of protection of young children from sexual depredations, there is little direct assistance to be gained from a review of other sections. It is necessary to concentrate on the language of section 14(1). It reads:

It is well established that there is a constitutional principle of general application 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": Sweet v Parsley [1970] AC 132 , 148; B (A Minor) v Director of Public Prosecutions [2000] 2 AC 428 , 470A-472C. The applicability of this presumption is not dependent on finding an ambiguity in the text. It operates to supplement the text. It can only be displaced by specific language, ie an express provision or a necessary implication. In the present case there is no express provision displacing the presumption. The question is whether it is ruled out by a necessary implication. In B (A Minor) v Director of Public Prosecutions Lord Nicholls of Birkenhead stated, at p 464A, that a necessary implication "connotes an implication which is compellingly clear". That is how I will approach the matter.

It is now possible to face directly the question whether section 14(1) makes it compellingly clear that the supplementation of the text by the presumption is ruled out. The actual decision of the House in B (A Minor) v Director of Public Prosecutions [2000] 2 AC 428 on the meaning of section 1(1) of the Indecency with Children Act 1960 springs to mind. The House concluded that on the statutory provision involved in that case the presumption was not displaced. But the particular wording of section 14(1) gives greater scope for the Crown's argument in the present case. Thus it is noteworthy that subsection (4) of section 14 but not subsection (2), makes specific provision, in the context of consent, for a defence of absence of mens rea. Nevertheless, I would hold that in the present case a compellingly clear implication can only be established if the supplementation of the text by reading in words appropriate to require mens rea results in an internal inconsistency of the text. Approaching the problem in this way, one can readily accept that section 14(2) could naturally have provided that a genuine belief by the accused that the girl was over 16 was no defence. Conversely, section 14(2) could have provided that a genuine belief that the girl was under 16 was a defence. In my view a provision of the latter type would not have been conceptually inconsistent with any part of section 14. By contrast, the terms of sections 5 and 6 of the 1956 Act namely offences of having sexual intercourse with girls under 13 (section 5) and with girls under 16 (section 6) are inconsistent with the application of the presumption. The "young man's defence" under section 6(3) makes clear that it is not available to anybody else. The linked provision in section 5, dealing with intercourse with younger girls, must therefore also impose absolute liability. There is nothing in section 14(1) as clearly indicative of the displacement of the presumption. In these circumstances it cannot in my view be said that there is a compellingly clear implication ruling out the application of the presumption.

This is a result which serves the public interest. It would have been a strange result to conclude that Parliament created by section 14(1) offences of strict liability where any heterosexual or homosexual contact takes place between two teenagers of whom one is under 16. Fortunately, the strong presumption of mens rea enabled the House to avoid such a result.

For these reasons, as well as the reasons given by Lord Bingham of Cornhill, I would allow the appeal.

I agree that the appeal should be allowed for the reasons which my noble and learned friend Lord Bingham of Cornhill has given. I wholly agree with his speech and only add some further observations since I consider that the issue raised has effectively been determined by the decision of the Court of Appeal in R v Kimber [1983] 1 WLR 1118 and that of your Lordships' House in B v DPP [2000] 2 AC 428

Lord Bingham has provided a valuable review of the regrettable legislative history and the judicial and other comments that have, over the years, been cogently made about this surprising state of affairs. Section 14 of the Sexual Offences Act 1956 enacts a single criminal offence, that of indecently assaulting a woman. Conduct which would otherwise constitute an assault is not an assault if done with the free and lawful consent of the other person. The actus reus is the doing of the indecent act without the consent of the other. The prosecution must prove the absence of consent. In Kimber it had been ruled that it was irrelevant that the defendant honestly believed that in fact the other person was consenting. On this basis, the honest mistake of fact would be no defence; the prosecution would not have to satisfy the jury that the defendant was acting under such a mistake. The Court of Appeal in the passage already quoted by Lord Bingham rejected this proposition. The prosecution must prove mens rea ; it must prove the intention of the defendant to assault.

Section 14(2) provides a fact-based legal rule which, given the stated factual situation, qualifies the requirement that the indecent act be done without the actual consent of the other person. The additional fact is that the other person is under the age of sixteen years. The result is that the actus reus becomes an indecent act done either without the consent of the other person or with or without the consent of the other person being a person under the age of sixteen years. The prosecution must therefore prove as regards the actus reus either the fact of the absence of consent or the fact of an age of less than sixteen years. It follows from the decision in Kimber that, unless some special legal rule is introduced, the prosecution must, as regards the defendant's mens rea , be prepared to prove that the defendant did not have an honest belief that the other person was in fact consenting and not under sixteen years of age.

The argument is that there is such an age-based special rule. This was one of the points which your Lordships' House had to consider in B v DPP . The argument was rejected. Lord Nicholls said at p.463:

I gave had the advantage of reading in draft the speech of my noble and learned friend Lord Bingham of Cornhill, with which I agree. For the reasons he gives I would allow the appeal and answer the certified questions as he proposes.

I do so without reluctance but with some misgiving, for I have little doubt that we shall be failing to give effect to the intention of Parliament and will reduce Section 14 of the Sexual Offences Act 1956 to incoherence. The Section creates a single offence of indecent assault. It is intended for the protection of women. Subsection (2) and the first part of subsection (4) extend the scope of the Section. They are intended to protect women who are particularly vulnerable and who by reason of age or mental infirmity may be prevailed upon to give their consent to what would otherwise be an indecent assault. Subsection (3) and the proviso to subsection (4) afford the defendant a limited defence based on the defendant's state of mind.

The need for such a defence in the case of a woman with impaired mental faculties is obvious. Her mental state may well not be apparent, and it would be manifestly unjust to deny a defence where the defendant believed that she was normal and had no reason so suspect that she was not. The absence of a similar proviso to subsection (2), while suggesting that no similar defence is intended in the case of under-age girls, does not lead inevitably to that conclusion. But subsection (3) is a different matter. Introduced when the age of marriage was raised to 16, its policy is self-evident. There is no need to extend the scope of the section, designed to protect women from assault and young girls from exploitation, to a girl whom the defendant believes he has married. In such a case the defendant has not taken advantage of her age for his own sexual gratification. On the contrary, he is labouring under the belief that he has undertaken a life-long responsibility towards her.

Yet subsection (3) requires the defendant's mistaken belief in the subsistence of a valid marriage to be reasonable as well as honest. To afford a defendant who has not married the girl a more generous defence than one who believes he has is grotesque. It cannot have been the intention of Parliament, either in 1929 when it introduced the subsection (3) defence, or when it consolidated the law in 1956. Parliament must have known that it was a commonplace for men to be convicted of the offence despite their genuine belief that the girl was over 16, a matter which went to mitigation but not defence. Parliament not only viewed this state of affairs with equanimity, but on the earlier occasion at least legislated on a basis which made no sense unless this was the law.

But the age of consent has long since ceased to reflect ordinary life, and in this respect Parliament has signally failed to discharge its responsibility for keeping the criminal law in touch with the needs of society. I am persuaded that the piecemeal introduction of the various elements of Section 14, coupled with the persistent failure of Parliament to rationalise this branch of the law even to the extent of removing absurdities which the Courts have identified, means that we ought not to strain after internal coherence even in a single offence. Injustice is too high a price to pay for consistency.