R v Tyrell

Facts

Tyrell was a girl aged between thirteen and sixteen. She was charged with aiding, abetting, counselling and procuring a man to have unlawful carnal knowledge of her, contrary to the Criminal Law Amendment Act 1885, which made it an offence to have such knowledge of a girl of that age.

History

Tyrell was convicted at trial and the question was reserved for the Court for Crown Cases Reserved, which quashed the conviction.

Issue

Whether a girl under the protected age can be convicted as a secondary party to the offence committed against her by the man with whom she has intercourse.

Held

The conviction was quashed. The statute was passed to protect girls of that age and not to punish them, so she could not be guilty of aiding and abetting the offence against herself.

Ratio

• Where a statute creates an offence to protect a class of persons, a member of that class who is the victim of the offence cannot be convicted as a secondary party to it, however literally the general rules of accessorial liability might seem to apply.

The judgments

Key reasoning

• The 1885 Act was passed for the protection of women and girls, and it would be an unnatural reading to treat the girl as a participant in the crime committed against her.
• Although the general law of accessories could technically apply to a girl who encouraged the man, the legislative purpose limited the scope of liability.

Where it fits in the module

Tyrell is a classic case in complicity for the question of who may be liable as a secondary party and how purposive interpretation limits the general principles. It shows that statutory policy may override the ordinary reach of aiding and abetting. It also invites comparison with the modern law on child sexual offences, where the policy of protecting the young is expressed in the legislation and not left to implication.

Criticisms

• The exception depends on a vague appeal to legislative purpose, leaving doubt about its scope and about who counts as protected.
• The rule does not distinguish between a victim who was passive and one who actively encouraged the crime, even though the latter may be culpable in a moral sense.
• The decision rests on the view of girls as victims of male predation, which later sexual offences law has replaced with a more neutral model of protection of children.