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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> Brown, R. v (Northern Ireland) [2013] UKSC 43 (26 June 2013) URL: http://www.bailii.org/uk/cases/UKSC/2013/43.html Cite as: [2013] 4 All ER 860, [2013] UKSC 43 |
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Trinty Term
[2013] UKSC 43
On appeal from: [2011] NICA 47
R v Brown (Appellant) (Northern Ireland)
Appellant | Respondent | |
Eilis McDermott QC | Barra McGrory QC | |
Donal Sayers | Robin Steer | |
(Instructed by McCoy Steele Solicitors) | (Instructed by Public Prosecution Service of Northern Ireland) |
LORD KERR (with whom Lord Neuberger, Lady Hale, Lord Wilson and Lord Reed agree)
Introduction
The legislative provisions
"Any person who-... procures or attempts to procure any girl or woman under 21 years of age … to have unlawful carnal connexion, either within or without the Queen's dominions, with any other person or persons ... shall be guilty of a misdemeanour …"
"Any person who ... unlawfully and carnally knows or attempts to have unlawful carnal knowledge of any girl under the age of 17 years; shall be guilty of a misdemeanor …"
"Any person who, being the owner or occupier of any premises, or having, or acting or assisting in, the management or control thereof - induces or knowingly suffers any girl … to resort to or be in or upon such premises for the purpose of being unlawfully and carnally known by any man, whether such carnal knowledge is intended to be with any particular man or generally, shall ... if such girl is under the age of 17 years be guilty of a misdemeanour…"
"Any person who - with intent that any unmarried girl under the age of 18 years should be unlawfully and carnally known by any man, whether such carnal knowledge is intended to be with any particular man, or generally - takes or causes to be taken such girl out of the possession and against the will of her father or mother, or any other person having the lawful care or charge of her, shall be guilty of a misdemeanour, and being convicted thereof shall be liable at the discretion of the court to be imprisoned for any term not exceeding two years or to be fined or both.
Provided that it shall be a sufficient defence to any charge under this section if it shall be made to appear to the court or jury that the person so charged had reasonable cause to believe that the girl was of or above the age of 18 years."
"Reasonable cause to believe that a girl was of or above the age of 17 years shall not be a defence to a charge under sub-section (1) of section five or under section six of the Criminal Law Amendment Act 1885 …"
The appellant's arguments
"The offences where no mental element is specified, for the most part, attract considerably lower maximum sentences than those where a mental element is specified."
The case for the respondent
Discussion
"… 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 . . . 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"
"… 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 has indicated otherwise, the appropriate mental element is an unexpressed ingredient of every statutory offence."
"... under modern practice the intention of Parliament when effecting textual amendment of an Act is usually to produce a revised text of the Act which is thereafter to be construed as a whole. Any repealed provisions are to be treated as never having been there, so far as concerns the application of the amended Act for the future." (original emphasis)
"The mental element of the offence under section 5, as the language and structure of the section makes clear, is that penetration must be intentional but there is no requirement that the accused must have known that the other person was under 13. The policy of the legislation is to protect children. If you have sex with someone who is on any view a child or young person, you take your chance on exactly how old they are. To that extent the offence is one of strict liability and it is no defence that the accused believed the other person to be 13 or over."