COURT OF APPEAL R v KIMBER (1984) 77 CAR 225 26 May 1983 Full text LAWTON LJ: On 7 April 1982 in the Crown Court at Devizes the appellant was convicted of an indecent assault on a woman and sentenced to six months’ imprisonment suspended for two years and fined £100. … The appeal raises these points. First, can a defendant charged with an indecent assault on a woman raise the defence that he believed she had consented to what he did? The trial judge, Mr Recorder Smyth QC, ruled that he could not. Second, if he could, did the jury have to consider merely whether his belief was honestly held or, if it was, did they have to go on to consider whether it was based on reasonable grounds? Another way of putting these points is to ask whether the principles on which the House of Lords decided DPP v Morgan [1975] 2 All ER 347, [1976] AC 182 [in the Library] should be applied to a charge of indecent assault on a woman. The victim was a female patient in a mental hospital. Her mental disorder had been diagnosed as schizophrenia. She was aged 56. We will refer to her as Betty. … She had been a patient in the mental hospital since 1957. Her movements and appearance were odd: she made strange movements with her face and mouth. She tended to give one word answers to questions. She was usually quiet and withdrawn but could become manic and aggressive without provocation. Most days she had to be helped to eat and dress. It must have been obvious to anyone of sound mind meeting her that she was suffering from a severe degree of mental disorder … On 1 August 1981 she was walking by herself in the hospital gardens near the cricket ground when she was approached by the appellant. He
had come to the hospital to visit a relative who was a patient. … [H]e admitted trying to have sexual intercourse with Betty but said he had not succeeded. … He admitted … that he knew she was a patient. He was asked whether she had said anything. He replied: ‘No, she did not. She just started mumbling. I couldn’t understand that. She was mumbling all the time, really stupid.’ Then came these questions and answers: ‘Q. You accept that this woman was mentally subnormal? A. Well I should think so, the way she was mumbling and that. Q. Did you ask her to have intercourse with you? A. No, I did not. Q. Why? A. Silly thing to do isn’t it, ask a woman for intercourse.’ The appellant gave evidence and the substance of what he said was this. … ‘ … I knelt between her legs playing with her. There was no response. She was just lying there mumbling all the time. … I thought she was an unstable woman because she kept mumbling. As far as I was aware, she knew what was going on. … I do not agree when I heard her mumbling it was clear to me I was trying to make love to a sick woman. I was not really interested in Betty’s feelings at all.’ At the close of the prosecution’s case the recorder ruled that the sole issue for the jury was whether Betty had given her real and genuine consent. He directed the jury to this effect. He said: ‘It is no defence that the defendant thought or believed Betty was consenting. The question is: was she consenting? It does not matter what he thought or believed.’
Before this court it was accepted by counsel for the Crown that his direction was wrong. … [T]he prosecution has to prove that the defendant intended to lay hands on his victim without her consent. If he did not intend to do this, he is entitled to be found not guilty and if he did not so intend because he believed she was consenting, the prosecution will have failed to prove the charge. It is the defendant’s belief, not the grounds on which it was based, which goes to negative the intent. In analysing the issue in this way we have followed what was said by the majority in DPP v Morgan [1975] 2 All ER 347 [in the Library] … If, as we adjudge, the prohibited act in indecent assault is the use of personal violence to a woman without her consent, then the guilty state of mind is the intent to do it without her consent. … … In our judgment the recorder should have directed the jury that the Crown had to make them sure that the appellant never had believed that Betty was consenting. As he did not do so, the jury never considered an important aspect of his defence. But, if he had directed them as he should have done, could a jury have found him not guilty? We have already set out in this judgment the admissions which he is alleged to have made to the police and relevant parts of his own evidence. In our judgment a reasonable jury would inevitably have decided that he had no honest belief that Betty was consenting. His own evidence showed that his attitude to her was one of indifference to her feelings and wishes. This state of mind is aptly described in the colloquial expression, ‘Couldn’t care less.’ In law this is recklessness. Had the jury been directed on recklessness we are sure they would have found that he had acted recklessly. That would have been enough to support a conviction of the offence charged. There has been no miscarriage of justice in this case. The appeal is dismissed. Full text LAWTON LJ:
On 7 April 1982 in the Crown Court at Devizes the appellant was convicted of an indecent assault on a woman and sentenced to six months’ imprisonment suspended for two years and fined £100. He appeals against his conviction by leave of the single judge. The appeal raises these points. First, can a defendant charged with an indecent assault on a woman raise the defence that he believed she had consented to what he did? The trial judge, Mr Recorder Smyth QC, ruled that he could not. Second, if he could, did the jury have to consider merely whether his belief was honestly held or, if it was, did they have to go on to consider whether it was based on reasonable grounds? Another way of putting these points is to ask whether the principles on which the House of Lords decided DPP v Morgan [1975] 2 All ER 347, [1976] AC 182 [in the Library] should be applied to a charge of indecent assault on a woman. The victim was a female patient in a mental hospital. Her mental disorder had been diagnosed as schizophrenia. She was aged 56. We will refer to her as Betty. Although she was not a defective within the meaning of ss 7 and 45 of the Sexual Offences Act 1956 (as amended by the Mental Health Act 1959, s 127) she was suffering from a severe degree of mental disorder. She had been a patient in the mental hospital since 1957. Her movements and appearance were odd: she made strange movements with her face and mouth. She tended to give one word answers to questions. She was usually quiet and withdrawn but could become manic and aggressive without provocation. Most days she had to be helped to eat and dress. It must have been obvious to anyone of sound mind meeting her that she was suffering from a severe degree of mental disorder. She had never been known to take any erotic interest in men or to respond to sexual stimuli. The hospital doctor in charge of her said that it was highly unlikely that she would be capable of giving comprehending consent to sexual advances, but she might agree without understanding the full implications of what she was agreeing to. Her condition was such that the prosecution did not call her as a witness. On 1 August 1981 she was walking by herself in the hospital gardens near the cricket ground when she was approached by the appellant. He
had come to the hospital to visit a relative who was a patient. A ward sister said in evidence that she saw the appellant talking to Betty. He had his hands cupped. There were coins in them and he went through the motions of counting them out. The appellant then nodded in the direction of a lane and walked down it. Betty followed a pace or so behind. Ten minutes later the ward sister saw her again. She was naked from the waist down, her dress having been rolled up to her waist. She was screaming loudly and was so distressed that she had to be given a tranquilliser injection and put to bed. Her knickers were found later in the lane. A hospital porter who had been alerted by the ward sister that something untoward might have happened saw the appellant in the grounds. He stopped him and asked him if he had been near the cricket ground with a woman. He said he had not. This he admitted at his trial was a lie. Later the same day he was interviewed by the police. At first he denied that he had been involved in any incident. Later, according to the police witnesses, he admitted trying to have sexual intercourse with Betty but said he had not succeeded. He told them that she had followed him and ‘chucked’ her knickers on the ground and that he had interfered with her in a way which clearly amounted to an indecent assault if it had been done without her consent. He admitted to them that he knew she was a patient. He was asked whether she had said anything. He replied: ‘No, she did not. She just started mumbling. I couldn’t understand that. She was mumbling all the time, really stupid.’ Then came these questions and answers: ‘Q. You accept that this woman was mentally subnormal? A. Well I should think so, the way she was mumbling and that. Q. Did you ask her to have intercourse with you? A. No, I did not. Q. Why? A. Silly thing to do isn’t it, ask a woman for intercourse.’
The appellant gave evidence and the substance of what he said was this. When he was near the cricket ground Betty started to follow him. She had some knickers in her hand which she threw down. She lay on the ground. She was mumbling. According to the recorder’s note of his evidence he said: ‘I was going to have sexual intercourse, but it was too tight so I decided not. I did not think about what was in her mind. I knelt between her legs playing with her. There was no response. She was just lying there mumbling all the time. I never scratched her … I thought she was an unstable woman because she kept mumbling. As far as I was aware, she knew what was going on. When she lay down, I thought she was giving consent to have sexual intercourse and so she lay down with her legs open … I do not agree when I heard her mumbling it was clear to me I was trying to make love to a sick woman. I was not really interested in Betty’s feelings at all.’ At the close of the prosecution’s case the recorder ruled that the sole issue for the jury was whether Betty had given her real and genuine consent. He directed the jury to this effect. He said: ‘It is no defence that the defendant thought or believed Betty was consenting. The question is: was she consenting? It does not matter what he thought or believed.’ Before this court it was accepted by counsel for the Crown that his direction was wrong. The recorder had not had his attention drawn to R v Tolson (1889) 23 QBD 168, [1886-90] All ER Rep 26 [in the Library]. Before us counsel for the Crown submitted that the jury should have been directed that the appellant had a defence if he had believed that Betty was consenting and he had had reasonable grounds for thinking so. On the facts the appellant could not have had any such grounds with the result that, despite the recorder’s misdirection, there had been no miscarriage of justice. We agree that on the evidence the appellant had no reasonable grounds for thinking that Betty was consenting and no jury other than a perverse one could have thought he had. Counsel for the appellant argued, relying
on the decision in DPP v Morgan, that the sole issue was whether the appellant had honestly believed that Betty was consenting. Unless the jury were sure that he had not so believed, he was entitled to be acquitted. The grounds for his belief was irrelevant save in so far as they might have assisted the jury to decide whether he did believe what he said he did. As this issue was never left to the jury, this court should not apply the proviso to s 2 of the Criminal Appeal Act 1968. The offence of indecent assault is now statutory: see s 14 of the Sexual Offences Act 1956. The Crown had to prove that the appellant made an indecent assault on Betty. As there are no words in the section to indicate that Parliament intended to exclude mens rea as an element in this offence, it follows that the Crown had to prove that the appellant intended to commit it. This could not be done without first proving that the appellant intended to assault Betty. In this context assault clearly includes battery. An assault is an act by which the defendant intentionally or recklessly causes the complainant to apprehend immediate, or to sustain, unlawful personal violence: see R v Venna [1975] 3 All ER 788 at 793, [1976] QB 421 at 428-429 [in the Library]. In this case the appellant by his own admissions did intentionally lay his hands on Betty. That would not, however, have been enough to prove the charge. There had to be evidence that the appellant had intended to do what he did unlawfully. When there is a charge of indecent assault on a woman, the unlawfulness can be proved, as was sought to be done in R v Donovan [1934] 2 KB 498, [1934] All ER Rep 207 [in the Library], by evidence that the defendant intended to cause bodily harm. In most cases, however, the prosecution tries to prove that the complainant did not consent to what was done. The burden of proving lack of consent rests on the prosecution: see R v May [1912] 3 KB 572 at 575 per Lord Alverstone CJ. The consequence is that the prosecution has to prove that the defendant intended to lay hands on his victim without her consent. If he did not intend to do this, he is entitled to be found not guilty and if he did not so intend because he believed she was consenting, the prosecution will have failed to prove the charge. It is the defendant’s belief, not the grounds on which it was based, which goes to negative the intent.
In analysing the issue in this way we have followed what was said by the majority in DPP v Morgan [1975] 2 All ER 347 at 361–362, 382, [1976] AC 182 at 214, 237 [in the Library] per Lord Hailsham and Lord Fraser. If, as we adjudge, the prohibited act in indecent assault is the use of personal violence to a woman without her consent, then the guilty state of mind is the intent to do it without her consent. Then, as in rape at common law, the inexorable logic, to which Lord Hailsham referred in Morgan, takes over and there is no room either for a ‘defence’ of honest belief or mistake, or of a ‘defence’ of honest and reasonable belief or mistake (see [1975] 2 All ER 347 at 361-362, [1976] AC 182 at 214). The decision in Morgan, probably because of its sordid facts and the improbability of the defence raised, caused unease amongst lawyers and some members of the public. Parliament reacted by passing the Sexual Offences (Amendment) Act 1976. The courts from time to time have shown a propensity to distinguish other offences from the common law concept of rape so as to avoid having to follow the reasoning in Morgan. This has been described by one academic writer as ‘The Retreat from Morgan’(see David Cowley ([1982] Crim LR 198)). Since each case must be decided after a careful analysis as to what constituted the prohibited act and what is the nature of the mens rea, if any, which has to be proved, a detailed consideration of these cases would be obiter for the purposes of this judgment. In these circumstances we do not intend to adjudge whether these cases were correctly decided or to attempt to distinguish them from this case. The application of the Morgan principle to offences other than indecent assault on a woman will have to be considered when such offences come before the courts. We do, however, think it necessary to consider two of them because of what was said in the judgments. The first is a decision of the Divisional Court in Albert v Lavin [1981] 1 All ER 628, [1982] AC 546 [in the Library]. The offence charged was assaulting a police officer in the execution of his duty, contrary to s 51 of the Police Act 1964. The defendant, in his defence, contended, inter alia, that he had not believed the police officer to be such and in consequence had resisted arrest. His counsel analysed the offence in the same way as we have done and referred to the reasoning in Morgan. Hodgson J, delivering the leading judgment, rejected this argument and in doing so said ([1981] 1 All ER 628 at 639, [1982] AC 546 at 561–562):
‘In my judgment counsel’s ingenious argument for the appellant fails at an earlier stage. It does not seem to me that the element of unlawfulness can properly be regarded as part of the definitional element of the offence. In defining a criminal offence the word ‘unlawful’ is surely tautologous and can add nothing to its essential ingredients … And, no matter how strange it may seem that a defendant charged with assault can escape conviction if he shows that he mistakenly but unreasonably thought his victim was consenting but not if he was in the same state of mind whether his victim had a right to detain him, that in my judgment is the law.’ We have found difficulty in agreeing with this reasoning, even though the judge seems to be accepting that belief in consent does entitle a defendant to an acquittal on a charge of assault. We cannot accept that the word ‘unlawful’ when used in a definition of an offence is to be regarded as ‘tautologous’. In our judgment the word ‘unlawful’ does import an essential element into the offence. If it were not there, social life would be unbearable, because every touching would amount to a battery unless there was an evidential basis for a defence. This case was considered by the House of Lords (see [1981] 3 All ER 879, [1982] AC 546). The appeal was dismissed, but their Lordships declined to deal with the issue of belief. In R v Phekoo [1981] 3 All ER 84, [1981] 1 WLR 1117 the defendant was charged with doing acts calculated to interfere with the peace and comfort of a residential occupier of premises with intent to cause such person to give up occupation of the premises, contrary to s 1(3)(a) of the Protection from Eviction Act 1977. At his trial the defendant said that he believed he was evicting squatters. This court adjudged that the offence was not one of strict liability and that once the issue of belief in the presence of squatters had been raised the prosecution had to disprove that belief in order to obtain a conviction. That would have been enough to dispose of the appeal, but Hollings J giving the judgment of the court went on, after referring to DPP v Morgan, to say, clearly obiter ([1981] 3 All ER 84 at 93, [1981] 1 WLR 1117 at 1127): ‘… it seems to us clear that this decision was confined and intended to be confined to the offence of rape.’ We do not accept that this was the intention of their Lordships in
Morgan’s case. Lord Hailsham started his speech by saying that the issue as to belief was a question of great academic importance in the theory of English criminal law. In our judgment the recorder should have directed the jury that the Crown had to make them sure that the appellant never had believed that Betty was consenting. As he did not do so, the jury never considered an important aspect of his defence. But, if he had directed them as he should have done, could a jury have found him not guilty? We have already set out in this judgment the admissions which he is alleged to have made to the police and relevant parts of his own evidence. In our judgment a reasonable jury would inevitably have decided that he had no honest belief that Betty was consenting. His own evidence showed that his attitude to her was one of indifference to her feelings and wishes. This state of mind is aptly described in the colloquial expression, ‘Couldn’t care less.’ In law this is recklessness. Had the jury been directed on recklessness we are sure they would have found that he had acted recklessly. That would have been enough to support a conviction of the offence charged. There has been no miscarriage of justice in this case. The appeal is dismissed.