K, R v.

Case [2001] UKHL 41

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HOUSE OF LORDS

Lord Bingham of Cornhill Lord Nicholls of Birkenhead Lord Steyn Lord Hobhouse of Wood-borough Lord Millett

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

REGINA

(APPELLANT)

(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL DIVISION))

ON 25 JULY 2001

[2001] UKHL 41

LORD BINGHAM OF CORNHILL

My Lords,

1. The appellant K was indicted on a single count of indecent assault committed against a girl C who at the time was aged 14, contrary to section 14(1) of the Sexual Offences Act 1956. His defence was to be that the sexual activity between him and C was consensual, that she had told him she was 16 and that he had had no reason to disbelieve her. He is a man of good character, aged 26 at the date of the offence charged against him. Before the trial a preliminary issue was raised on behalf of K: whether, to establish K's guilt under the section, the prosecution had to prove that at the time of the incident K did not honestly believe that C was 16 or over. Argument on this issue was heard by his Honour Judge Thorpe at the Chichester Crown Court. He ruled, in favour of K, that the prosecution did have to prove an absence of genuine belief on the part of the accused that the victim was aged 16 or over. In so ruling the judge relied on the recent decision of the House of Lords in B (A Minor) v Director of Public Prosecutions [2000] 2 AC 428. The prosecution appealed against that ruling under section 35 of the Criminal Procedure and Investigations Act 1996. The Court of Appeal (Criminal Division) (Roch LJ, Rougier and Gray JJ) allowed the appeal and held that such absence of genuine belief did not have to be proved. The court certified the following point of law of general public importance:

Leave to appeal was refused by the Court of Appeal but granted by the House.

2. Section 14 of the 1956 Act is in these terms:

(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 sixteen), the invalidity does…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] UKHL 41
Decision Date