Wednesday Law Report: Genuine Belief Not a Defence to Indecent Assault on Girl under 16 ; 8 November 2000 Crown Prosecution Service V K Court of Appeal, Criminal Division (Lord Justice Roch LJ, Mr Justice Rougier and Mr Justice Gray) 31 October 2000
Kate O'Hanlon, Barrister, The Independent (London, England)
IT WAS no defence to a charge of indecent assault on a girl under 16 that the defendant genuinely believed that she was over 16.
The Court of Appeal allowed an interlocutory appeal by the prosecution against a ruling by the trial judge that a defendant accused of indecent assault on a girl under 16 could raise the defence that he genuinely believed the girl to have been over 16.
The defendant, who was aged 26, was charged with indecent assault on a girl under 16 years, contrary to section 14(1) of the Sexual Offences Act 1956. Section 14 provided:
"(1) It is an offence, subject to the exception mentioned in sub- section (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."
The judge ruled on a preliminary issue that the Crown had the burden of proving the absence of a genuine belief on the part of the defendant that the complainant was 16 years or over. The Crown appealed against the ruling under sections 35 and 36 of the Criminal Procedure and` Investigations Act 1996.
Anthony Scrivener QC and Anthony Heaton-Armstrong for the Crown; David Fisher QC and Irena Ray-Crosby for the defendant.
Lord Justice Roch said that the issue in the appeal was whether the presumption of law that mens rea was required before a person could be found guilty of a criminal offence applied to the offence with which the defendant had been charged; whether he was only guilty of that offence if he knew that the complainant was under the age of 16 years and for that reason could not give the consent which would have prevented his acts being an assault for the purposes of section 14, or if he was reckless as to her age, so that he was entitled to be acquitted if the prosecution failed to prove that he had no genuine belief that the girl was 16 years or over. …