Lord Justice Gage :
- On 16 September 2004 at the Crown Court at Hull the appellant pleaded guilty on re-arraignment to an offence of buggery with a male under the age of 16 (count1) and possession of a class A drug (count 2). He was sentenced to 9 months imprisonment on count 1 with no separate penalty on count 2. He appeals against conviction by leave of the single judge. His application for leave to appeal against sentence was referred to the full court.
- Before re-arraignment a preliminary issue was raised on behalf of the appellant. His defence was that the sexual activity between him and the complainant was consensual and he believed the complainant was over the age of 16. The prosecution was prepared to accept that the act of buggery was consensual but argued that the defence that the appellant believed the complainant to be over the age of 16 was not available in respect of a charge of buggery pursuant to section 12 of the Sexual Offences Act 1956, as amended. The judge ruled in favour of the prosecution on this issue. The appellant was re-arraigned and pleaded guilty. He is a professional man, a doctor, aged 34 and of good character. The single ground of appeal is that the judge's ruling was wrong.
- The facts are as follows. The complainant was a boy aged 14 years, born on 31 August 1989, who had been carrying out work experience at a hairdresser's salon. On 6 February 2004, with the permission of his parents, he went out for the evening with some members of the staff of the salon. They went to various licensed premises in Hull and ended up at a recognised gay club. The club had a door policy granting admittance only to customers who were 18 years old or over. The complainant was taken into the club by a member of staff at the hairdressers' salon who was also working at the night club as part of a "drag act". There was some evidence in witness statements that the complainant looked about 17 years old. There came a time when the manager of the night club saw the complainant and gave instructions for him to leave. At about that time the complainant was "picked up" by the appellant.
- The appellant took the complainant back to his flat. At the flat there was some consensual sexual activity, which led to full intercourse with the appellant's penis penetrating the complainant's anus. He was wearing a condom and subsequently told the police that he believed the complainant to be 17 years old.
- The complainant's mother made a witness statement in which she said that her son had been struggling with his sexuality. She and her husband had spoken to him about it. She had never known him to have a gay partner. In her statement she said the whole incident had affected him greatly. He had cried over it and did not want to speak to her or her husband about it.
Section 12.
- The starting point is section 12 of the Sexual Offences Act 1956 (the 1956 Act). As amended it reads:
12 Buggery.
i) It is felony for a person to commit buggery with another person otherwise than in circumstances described in subsection (1A) or (1AA)] below or with an animal.
(1A) The circumstances first referred to in subsection (1) are that the act of buggery takes place in private and both parties have attained the age sixteen.
(1AA) The other circumstances so referred to are that the person is under the age of sixteen and the other person has attained that age.
(1B) An act of buggery by one man with another shall not be treated as taking place in private if it takes place
1. when more than two persons take part or are present; or
2. in a lavatory to which the public have or are permitted to have access, whether on payment or otherwise.
(1C) In any proceedings against a person for buggery with another person it shall be for the prosecutor to prove that the act of buggery took place otherwise than in private or that one of the parties to it had not attained the age of sixteen.
The judge's decision
- In his ruling the judge referred to two recent decisions of the House of Lords namely B (A Minor) v DPP [2000] Cr. App. R.65 and R v K [2002] 1 AC 462. He recognised the importance of those decisions but found that they did not compel him to construe section 12 as creating an offence with a mental element that afforded a defence if the accused honestly believed that the other party was 16 or over. He pointed out that when Parliament amended section 12 it did not allow a "young person's defence" akin to section 6 (3) of the Sexual Offences Act 1956. He stated;
"The fact there is no such clause in it demonstrates, to my mind, that not withstanding the relaxation initially in 1984 to 18 and later in 2000 to 16 of the activities of private anal intercourse, it was still the intention of Parliament not to provide a defence of bona fide belief."
- He said that in his opinion Parliament had taken the specific view that young boys needed to be protected "even from themselves in relation to anal intercourse." Having cross-checked his ruling against sections 5, 6, 7, 10 and 11 he found nothing to persuade him that section 12, as amended, did not enact an offence of strict liability. Accordingly, he ruled that the appellant had no defence to the charge
The submissions of counsel
- The submissions on behalf of the appellant can be summarised as follows. First, there is a presumption that a mental element, traditionally labelled mens rea is an essential ingredient in any statutory offence unless Parliament has indicated the contrary either expressly or by necessary implication. The decisions of the House of Lords in B (A Minor) v DPP and R v K provide authority for and examples of this proposition. Secondly, section 12 contains no words expressly excluding the mental element. Thirdly, there are no circumstances sufficient to exclude the mental element in respect of this offence. Fourthly, it follows that the judge was wrong to rule out the appellant's defence that he had an honest belief that the complaint was over the age of sixteen when he committed the act of buggery with him.
- The prosecution submitted that the decision of the judge was correct for the reasons which he gave. The prosecution asked the court to take judicial notice of the controversy surrounding the reduction of the age limit to sixteen. It was submitted that in 2000 Parliament would never have enacted the amendment to section 12 if it had believed that the offence was not an absolute one. The prosecution contended submitted that section 12 must be read together with sections 5 and 6 of the 1956 Act. Reading those sections together leads to the inevitable conclusion that section 12, like section 5, creates an absolute offence.
The legislative history
- We turn first to the common law and legislative history of the offence of buggery. Buggery was originally a common law offence, which consisted in intercourse per anum by a man with another man or woman of whatever age; or intercourse per anum or per vagina by a man with an animal. Consent was never a defence. In 1956 buggery became a statutory offence under section 12 of the 1956 Act. As first enacted section 12 made no attempt to define the offence of buggery; it simply enacted the common law. In 1967 Parliament passed the Sexual Offences Act 1967 (the 1967 Act). The 1967 Act de-criminalised "any homosexual act in private" provided that the parties consented to the act and had attained the age of twenty-one. The 1967 Act did not amend section 12. It stood as a free-standing statutory restriction on the reach of section 12. It contained other provisions to which we shall return.
- In 1994 Parliament enacted the Criminal Justice and Public Order Act 1994 which by section 143 (1) and (2) amended section 12 of the 1956 Act. The amendments inserted sections 1(A), 1(B) and 1(C), which were derived from section 1 of the 1967 Act. As amended section 12 then read in precisely the same form as it presently does save that the age at which buggery was de-criminalised became eighteen. The most recent amendment reduced the age to sixteen and was brought about by the Sexual Offences (Amendment) Act 2000 ( the 2000 Act ). The 2000 Act was fiercely debated both in and out of Parliament.
- It is conceded by the prosecution that in its present form section 12 does not expressly refer to the mental element required for the offence to be committed.
The House of Lords' decisions
B (A Minor) v DPP
- In B (A Minor) v DPP the House of Lords was concerned with section 1(1) of the Indecency with Children Act 1960 as it read at the time of the offence with which the appellant was charged. In the material part it read:
(1) Any person who commits an act of gross indecency with or towards a child under the age of 14, or who incites a child under that age to such an act with him or another shall be liable on conviction on indictment to imprisonment for a term not exceeding 10 years, or on summary conviction to imprisonment for a term not exceeding 6 months, to a fine not exceeding the prescribed sum, or both.
- The issue for decision was whether that section created an offence of strict liability or whether a mental element was necessary. The House of Lords held that a mental element was necessary for the sentence to be committed. The necessary mental element regarding the age ingredient of the offence was an absence of a genuine belief by the accused that the victim was aged 14 or above. The burden of proving the mental element was held to rest on the prosecution.
- Lord Nicholls giving the leading speech said (see page 68 C-D):
"The Common Law presumption
As habitually happens with statutory offences, when enacting this offence Parliament defined the prohibited conduct solely in terms of the prescribed physical acts. Section 1(1) says nothing about the mental element. In particular, the section says nothing about what shall be the position if the person who commits or incites the act of gross indecency honestly but mistakenly believed that the child was 14 or over.
In these circumstances the starting point for a court is the established common law presumption that a mental element, traditionally labelled mens rea, is an essential ingredient unless Parliament has indicated a contrary intention either expressly or by necessary implication. The common law presumes that, unless Parliament indicated otherwise, the appropriate mental element is an unexpressed ingredient of every statutory offence. On this I need do no more than refer to Lord Reid's magisterial statement in the leading case of Sweet v Parsley (1969) 53 Cr.App.R.221,224, [1970] A.C.132,148-149:
"there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blame-worthy 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 it is firmly established by a host of authorities that mens rea is an essential ingredient of every offence unless some reason can be found for holding that that is not necessary."
- Later in his speech he gave further guidance as to the matters to be considered when construing the statutory offence in the light of the established presumption. At page 71 he said (see G-72C):
" In section 1(1) of the Indecency with Children Act 1960 Parliament has not expressly negatived the need for a mental element in respect of the age element of the offence. The question, therefore, is whether, although not expressly negatived, the need for a mental element is negatived by necessary implication. "Necessary implication" connotes an implication which is compellingly clear. Such an implication may be found in the language used, the nature of the offence, the mischief sought to be prevented and any other circumstances which may assist in determining what intention is properly to be attributed to Parliament when creating the offence.
I venture to think that, leaving aside the statutory context of section 1, there is no great difficulty in this case. The section created an entirely new criminal offence, in simple unadorned language. The offence so created is a serious offence. The more serious the offence, the greater is the weight to be attached to the presumption, because the more severe is the punishment and the graver the stigma, which accompany a conviction. Under section 1, conviction originally attracted a punishment of up to 2 years' imprisonment."
- Lord Nicholls' conclusion in respect of section 1(1) of the Indecency with Children Act was that there was nothing of "sufficient cogency to displace the common law presumption".
- Lord Steyn in his speech described the presumption in slightly different terms. Addressing the construction of section 1(1) he said (see page 78F – 79E):
"The language is general and nothing on the face of section 1(1) indicates one way or the other whether section 1(1) creates an offence of strict liability. In enacting such a provision Parliament does not write on a blank sheet. The sovereignty of Parliament is the paramount principle of our constitution. But Parliament legislates against the background of the principle of legality. In R v Secretary of State for the Home Department, ex p. Pierson [1998] AC 539 many illustrations of the application of the principle were given in the speech of Lord Browne-Wilkinson and in my speech: 573G-575D, 587C-590A. Recently, in R v Secretary of State for the Home Department, ex p. Simms [1999] 3 WLR 328 the House applied the principle to subordinate legislation: see in particular the speeches of Lord Hoffman (at 341F-G) myself (at 340G-H) and Lord Browne-Wilkinson (at 330E). In ex p. Simms Lord Hoffman explained the principle as follows (at 341F-G):
"But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual."
This passage admirably captures, if I may say so, the rationale of the principle of legality. In successive editions of his classic work, Professor Sir Rupert Cross cited as the paradigm of the principle the "presumption" that mens rea is required in the case of statutory crimes": Statutory Interpretation 3rd ed. (1995), p. 166. Sir Rupert explained that such presumptions are of general application and are not dependent on finding an ambiguity in the text. He said they "not only supplement the text, they also operate at a higher level as expressions of fundamental principles governing both civil liberties and the relations between Parliament, the executive and the courts. They operate as constitutional principles which are not easily displaced by a statutory text": ibid. In other words, in the absence of express words or a truly necessary implication, Parliament must be presumed to legislate on the assumption that the principle of legality will supplement the text. This is the theoretical framework, against which section 1(1) must be interpreted ".
Counsel for the appellant specifically drew our attention to and relied on the words "a truly necessary implication". Lord Steyn also concluded that no such truly necessary implication arose in respect of section 1(1).
- Finally, Lord Hutton, less enthusiastically, concluded that section 1 (1) did not create an absolute offence. He said at page 91 (see 91B):
" I consider that it would be reasonable to infer that it was the intention of Parliament that liability under section 1(1) of the Act of 1960 should be strict so that an honest belief as to the age of the child would not be a defence. But the test is not whether it is a reasonable implication that the statute rules out mens rea as a constituent part of a crime - the test is whether it is a necessary implication."
R v K
- In R v K the same issue arose in respect of section 14 of the 1956 Act. That section reads:
" (1) It is an offence, subject to the exception mentioned in subsection (3) of this section, for a person to make an indecent assault on a woman.
"(2) A girl under the age of 16 cannot in law give any consent which would prevent an act being an assault for the purposes of this section.
" (3) Where a marriage is invalid under section two of the Marriage Act 1949, or section one of the Age of Marriage Act 1929 (the wife being a girl under the age of 16), the invalidity does not make the husband guilty of any offence under this section by reason of her incapacity to consent while under that age, if he believes her to be his wife and has reasonable cause for the belief.
" (4) A woman who is a defective cannot in law give any consent which would prevent an act being an assault for the purposes of this section, but a person is only to be treated as guilty of an indecent assault on a defective by reason of that incapacity to consent, if that person knew or had reason to suspect her to be a defective."
All the speeches in R v K endorse the principle of the presumption that a mental element is required in a statutory offence unless expressly excluded or the contrary is shown by necessary implication.
- Lord Steyn referred to the presumption as a constitutional principle of general application. He added to what he had said in B (A Minor) v DPP:
" 32 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, 470-472. 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, i.e. an express provision or a necessary implication."
- In R v K the House of Lords unanimously held that section 14(1) of the 1956 Act required the prosecution to negative a defence of honest belief that the complainant was over the age of 16.
- The speeches contain references to other sections of the 1956 Act. Lord Bingham, with whom the other members of the House agreed, described the 1956 Act as "not a single, coherent legislative scheme" and drew attention to the rag-bag nature of it and its predecessors. For this reason, in construing section 14(1), he drew no assistance from subsections (3) and (4) which he demonstrated were derived from quite different statutory sources. In several of these speeches attention is drawn to sections 5 and 6 of the 1956 Act and contrasted with section 14 (1). Lord Steyn, in making the point that reading words into section 14 (2) of the 1956 Act appropriate to require mens rea would result in no internal inconsistency, contrasted section 14 with sections 5 and 6. He said:
"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 anyone 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." (see p 478 para 33.)
- From these two decisions we conclude firstly that in all statutory offences whenever a section is silent as to mens rea there is a presumption that the mental element is an essential ingredient of the offence. Secondly, in the absence of express statutory provision the presumption of the mental element can only be excluded if the necessary implication is "compellingly clear", "truly necessary" and free from ambiguity. Further, the presumption must not involve an internal inconsistency. We approach the construction of section 12 of the 1956 Act with these principles in mind.
Construction of section 12
- Counsel for the prosecution sought to persuade us that section 12 was linked to sections 5 and 6 of the 1956 Act. He submitted that all three sections deal with sexual intercourse. It follows that section 12 must be read together with sections 5 and 6. If they are read together the inevitable result is that buggery must be construed as an absolute offence.
- This is a superficially attractive argument. But in our judgment it cannot prevail. As we have pointed out buggery stems from a common law offence involving an absolute prohibition. It was not an age-related offence until the 1967 Act. Whereas offences under sections 5 and 6 have always been age-related offences.
- Further, the 1967 Act and the amendments of section 12 in 1994 and 2000, by de-criminalising homosexual acts between consenting males under a certain age, in our view, created a different offence. The offence is a serious one. For the full offence the maximum penalty is life imprisonment. We recognise that section 3 of the 1967 Act provides a specific defence in respect of consensual buggery with a person suffering from a severe mental handicap based on lack of knowledge that the victim was suffering severe mental handicap. However, in our view, this section does not assist the argument that section 12 is an offence of strict liability. It is in very similar terms to section 14(4) of the 1956 Act. Lord Bingham, in R v K, stated that no significance could be attached to the "inclusion of grounds of exoneration in subsections (3) and (4)" of section 14 by reason of the fact that those provisions were derived from different sources to section 14(2). The same, in our view, applies to section 12.
- We have also considered whether subsection (1C) of section 12 assists the argument that Parliament intended the section to create an absolute offence in relation to complainants under 16. Thus it might be thought that the fact that Parliament had introduced this subsection and had not at the same time provided that the offence was one requiring a mental element indicated that it was Parliament's intention that the offence should be one of strict liability.
- In our judgment, however, the introduction of subsection (1C) does not signal that Parliament intended that the age-related offence of buggery should be one of strict liability. Subsection (1C) derives from section 1(6) of the 1967 Act. The technique of the 1967 Act was to provide an age-related exception to the offence of buggery. In so doing it created a new age-related offence. Section 1(6) was inserted in our view to make it explicit that following the creation of the exception the burden of proving the age of the other person was to be discharged by the prosecution and not by the offender. In our opinion subsection 1(C) of section12 was inserted for the same reason and thus it is not to be inferred from the insertion of that subsection that Parliament intended buggery to be a strict liability age-related offence.
Conclusion
- Our conclusion is that the mental element has not been excluded from section 12 by necessary implication. In our view, very similar considerations apply to section 12 as apply to section 1(1) of the Indecency with Children Act and section 14 of the 1956 Act. Applying the reasoning of the House of Lords in B (A Minor) v DPP and R v K we can find no compellingly clear or truly necessary implication that the mental element has been excluded from section 12; nor does such a construction give rise to any internal inconsistency.
- In this case the appellant was charged with an offence of buggery committed with a boy under the age of 16. The appellant was entitled to raise the defence that he honestly believed the boy to be over 16. In the circumstances, the judge was wrong to rule that he had no arguable defence.
- In reaching this conclusion we echo some words of Lord Millett in R v K. Agreeing to the appeal in that case being allowed, he said:
" 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" (see para 41).
- In this case our disquiet is to some extent alleviated by the knowledge that if the appellant had committed this admitted act of consensual anal intercourse after 1 May 2004 instead of on 6 February 2004 he could only have been charged under section 9 of the Sexual Offences Act 2003. On the admitted facts he might then have had a complete defence to the charge provided by section 9(1)(C)(i).
- For the reasons given above the appeal against conviction succeeds and the conviction quashed.
Sentence
- On the day when this appeal was argued before us we invited counsel to make submissions on the application for leave to appeal against sentence. Having heard those submissions, but without deciding the appeal, we gave permission for leave to appeal and admitted the appellant to bail. He was in any event due to be released on 24 December 2004. In the event the appeal against sentence no longer arises and we say no more about it.
