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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> S & Anor, R. v [1983] EWCA Crim 5 (05 December 1983)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/1983/5.html
Cite as: (1984) 78 Cr App R 149, [1983] EWCA Crim 5

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JISCBAILII_CASE_CRIME

BAILII Citation Number: [1983] EWCA Crim 5
Case Nos.: 630/A/82 1172/C/82

IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice
5th December 1983

B e f o r e :

LORD JUSTICE DUNN
MR. JUSTICE BRISTOW
and
SIR JOHN THOMPSON
____________________

R E G I N A
-v-
SATNAM S
and
KEWAL S

____________________

(Transcript of the Shorthand Notes of Marten Walsh Cherer Ltd., 36/38
Whltefriars Street, London EC4Y 8BJ. Telephone Number: 01 - 583 7635.
Shorthand Writers to the Court. )

____________________

MR. H. C. TAYLER, Q. C., and MR. A. J. ENGEL
appeared on behalf of the Appellants.
MR. A. T. SMITH, Q. C. and MR. R. POLLARD
appeared on behalf of the "Crown.
____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

(As approved by the Judge)

    MR. JUSTICE BRISTOW: The judgment of the court was prepared by Dunn L. J. In his absence I shall deliver it.

    On 1st February 1982 at Stafford Crown Court before his Honour Judge Taylor the appellants were both convicted of rape, being reckless as to consent, and of aiding and abetting the other to commit such rape. They were both acquitted of rape, knowing there to be no consent, and of aiding and abetting the other to commit such rape. They were both sentenced to five years' imprisonment on each count, concurrent.

    After refusal by the full court of their applications for leave to appeal against conviction, the case was restored to the list on a question of law, following representations by the appellants' counsel Mr. Engel, to the Home Secretary. They now appear as appellants, leave to appeal being unnecessary.

    The question of law is whether, in directing the jury as to the state of mind of the appellants in "reckless" rape, the judge should have left to the jury the question whether they genuinely though mistakenly believed that the victim was consenting to sexual intercourse; and whether the judge was right to direct them that it was sufficient, in order to prove recklessness, if it was obvious to an ordinary observer that she was not consenting. On 4th November 1983 we allowed the appeals and quashed the convictions. We now give our reasons.

    The material facts may be quite shortly stated. The victim was a 13 year old white girl, although she looked older, who worked part-time in a shop where Satnam, aged 31, also worked. Some minor familiarities had taken place between them. She had met Kewal, aged 30, once. She had been a virgin prior to the offences.

    At about 7. 00p.m., on 25th January 1981, Satnam offered her a lift in Kewal's car to the shop to do some cleaning. As there were no lights on there she agreed that they should drive round for a time, although she said she had to be home by 9. 00 p. m. There followed two incidents when both appellants had sexual intercourse with her or attempted to do so. In each case one got into the back of the car with the girl and had intercourse while the other drove. In between the incidents they stopped, once at a public house and once at an off-licence to buy some Bacardi. On neither occasion did the girl try to run away or make any complaint. During the second incident Satnam failed to have sexual intercourse because he was drunk, but Kewal had sexual intercourse with her for a long time. During both incidents the girl kicked and struggled and told them to leave her alone, but they removed her underclothes and persisted.

    She arrived home at about 10. 45 p. m. Her mother had called in a woman police constable as the girl was late and, according to the woman police constable, she was flushed and her clothes were creased, though she did not appear distressed. When questioned she said quite calmly: "They had intercourse with me", and went on to say she had tried to stop them but they were too strong.

    On medical examination there was no sign of external injury. In evidence she said that although she had been willing to go for a drive, she had never agreed to intercourse. She did not like either of the appellants and had not wanted them to touch her.

    When Satnam was interviewed he admitted that they had both had sexual intercourse with her, and said that she had not cried or shouted, but admitted:

    "But when I tried to have sex Kewal held her arms down because she pushed me away. "

    At the end he said:
    "I am very sorry for what I have done. Elizabeth never asked for sex; we took advantage of her, but Kewal is strong - she couldn't stop him. "

    When Kewal was interviewed he at first denied that the girl had ever been in his car, then agreed that she had been in his car, but denied that he had intercourse with her at all, although he said that Satnam had. He subsequently agreed that his replies were lies. He said that he had been very upset and worried about the effect on his family. Both gave evidence. Satnam said that he had had sexual intercourse once with her agreement. On the second occasion she seemed to want it, but he could not manage it. Kewal said that on both occasions he thought she wanted it.

    The judge plainly took a great deal of trouble in his direction as to the law, and in fairness to him it must be said that when he summed up, on 1st February 1982, the law was in an uncertain state. R. v. Caldwell (1981) 73 Cr. App. R. 13 and R. v. Lawrence (1981) 73 Cr. App. R. 1 had recently been decided, and R. v. Pigg (1982) 74 Cr. App. R. 352 was not decided until 5th February 1982.

    The judge rightly pointed out that there was no dispute that sexual intercourse had in fact taken place. He went on to deal impeccably with the elements of consent by the girl and the knowledge of the appellants which was relevant to the counts on which they were acquitted. He then turned to the element of recklessness and said this:

    "Members of the jury, a person is reckless in this context: if there was an obvious reason, in the circumstances as the jury find them to be, if there was an obvious reason that the girl was not in fact willing to have sexual intercourse, that is to say, obvious to every ordinary observer, and the defendant either did not apply his mind to that reason at all, for whatever reason, or, applied his mind to the reason, but carried on having sexual intercourse with her, or trying to, that is recklessness. "

    He then repeated that direction and gave no further direction as to the necessary elements to be proved in the crime or reckless rape.

    Two grounds of appeal were relied on in this court.

    (1) That the judge should have directed the jury that a genuine though mistaken belief that the girl was consenting offered a defence to a charge of reckless rape; (2) that the judge erred in referring to an "ordinary observer" in his direction as to recklessness, and that he should have directed the jury that it was necessary to prove that each appellant was actually aware of the possibility that the girl was not consenting before they could find him reckless.

    So far as the first ground was concerned, it was accepted by Mr. Smith for the Crown that he could not support the summing-up in the absence of a direction as to belief. In R. v. Thomas (1983) 77 Cr. App. R. 63 Lord Lane C. J. said, at page 65:

    "In this particular case, the judge should have spelt out in terms that a mistaken belief that the woman was consenting, however unreasonable it may appear to have been, is an answer to the charge, and that it is for the prosecution to eliminate the possibility of such a mistake if they are to succeed. He should then have gone on to deal with the matters set out in section 1(2) of the 1976 Act. As it was the jury were left without any guidance on the matter. "

    The same situation arose here. The jury were left without any guidance on the matter of belief and on that ground alone we would allow the appeal.

    We turn now to consider the second ground, i. e. the direction as to recklessness. Strictly it may be said that this point has already been decided in R. v. Bashir (1983) 77 Cr. App. R. 59 at page 62 where Watkins L. J. said:

    "As recently as the 5th of this month, Lord Lane C. J. in Thomas restated the definition of 'reckless' as applied to the offence of rape. He said: 'A man is reckless if either he was indifferent and gave no thought to the possibility that the woman might not be consenting, in circumstances where, if any thought had been given to the matter, it would have been obvious that there was a risk she was not, or, he was aware of the possibility that she might not be consenting but nevertheless persisted, regardless of whether she consented or not.' He was in almost exact form repeating the definition of reckless in relation to rape which he had provided in the case of Pigg 74 Cr. App. R. 352. It will be noted that that definition allows of none other than a subjective approach to the state of mind of a person of whom it is said he acted recklessly in committing a crime. It was incumbent therefore on the trial judge in the present case to ensure that he provided the jury with this kind of definition of the word 'reckless'".

    Mr. Tayler on behalf of the appellants submitted, in his able argument, that the use of the word "obvious" in its context in both Pigg and Thomas gives rise to a possible ambiguity. "Obvious" to whom? If it meant obvious to any reasonable person that would introduce an objective test, and Mr. Tayler submitted that the authorities properly understood do not warrant such a conclusion. He invited us in effect to clarify the situation which has developed since Caldwell and Lawrence, as he said that judges up and down the country are now in a state of some confusion as to the state of the law. He submitted that the direction of recklessness in Pigg was in any event obiter.

    As Robert Goff L. J. said in Elliott v. C. (A Minor) (1983 77 Cr. App. R. 103 at page 119, with reference to the suggested direction in Pigg:

    "Now it cannot be disguised that the addition of the words 'was indifferent and' constituted a gloss upon the definition of recklessness proposed by Lord Diplock in R. v. Caldwell (Supra). Furthermore, if it were legitimate so to interpret Lord Diplock's speech in relation to a case arising not under section 1 of the Sexual Offences (Amendment) Act 1976, but under section 1(1) of the Criminal Damage Act 1971, the effect would be that the second question posed by the magistrates in the case now before this court would be answered in the affirmative, and the appeal would be dismissed; because there is no finding of fact that this defendant in the case before us was indifferent to the risk of destruction by-fire of the shed and its contents. This is an approach which I would gladly adopt, if I felt that I was free to do so. However, I do not consider that it is open to this court, in a case arising under the very subsection to which Lord Diplock's speech was expressly directed, to impose this qualification, which I feel would in this context constitute too substantial a departure from the test proposed by him. "

    The instant case, unlike Elliott, is not concerned with the Criminal Damage Act but with the Sexual Offences (Amendment) Act 1976, and the court is considering recklessness in the context of rape and not in the context of criminal damage. We feel we are therefore free to review the situation so far as it is governed by relevant authority, and accepting as we do that there is an ambiguity in the suggested direction in Pigg, which was in any event obiter.

    Mr. Tayler took as his starting point R. v. Morgan (1975) 61 Cr. App. R. 136, a decision of the House of Lords on the very question of rape, which was not overruled by either Caldwell or Lawrence and is binding on this court. Lord Hailsham said at page 151:

    "I am content to rest my view of the instant case on the crime of rape by saying that it is my opinion that the prohibited act is and always has been intercourse without consent of the victim and the mental element is and always has been the intention to commit that act, or the equivalent intention of having intercourse willy-nilly not caring whether the victim consents or no. A failure to prove this involves an acquittal because the intent, an essential ingredient, is lacking. It matters not why it is lacking if only it is not there, and in particular it matters not that the intention is lacking only because of a belief not based on reasonable grounds. "

    In the Report of the Advisory Group on the Law of Rape (The Heilbron Committee) Command Paper 6352 1975, the following "Recommendations for declaratory legislation" were made:

    "81. Notwithstanding our conclusions that Morgan's case is right in principle, we nevertheless feel that legislation is required to clarify the law governing intention in rape cases, as it is now settled. We think this for two principal reasons. The first is that it would be possible in future cases to argue that the question of recklessness did not directly arise for decision in Morgan's case, in view of the form of the question certified: to avoid possible doubts the ruling on recklessness needs to be put in statutory form.
    82. Secondly, it would be unfortunate if a tendency were to arise to say to the jury 'that a belief, however unreasonable, that the woman consented, entitled the accused to acquittal.' Such a phrase might tend to give an undue or misleading emphasis to one aspect only and the law, therefore, should be statutorily restated in a fuller form which would obviate the use of those words.
    83. We think that there would be advantage if this matter could also be dealt with by a statutory provision which would -

    (i) declare that (in cases where the question of belief is raised) the issue which the jury have to consider is whether the accused at the time when sexual intercourse took place believed that she was consenting, and
    (ii) make it clear that, while there is no requirement of law that such a belief must be based on reasonable grounds, the presence or absence of such grounds is a relevant consideration to which the jury should have regard, in conjunction with all other evidence, in considering whether the accused genuinely had such a belief. "

    There followed the Sexual Offences (Amendment) Act 1976, section 1 of which is in the following terms:

    "(1) For the purposes of section 1 of the Sexual Offences Act 1956 (which relates to rape) a man commits rape if -
    (a) he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it; and
    (b) at that time he knows that she does not consent to the intercourse or he is reckless as to whether she consents to it; .....
    (2) It is hereby declared that if at a trial for a rape offence the jury has to consider whether a man believed that a woman was consenting to sexual intercourse, the presence or absence of reasonable grounds for such a belief is a matter to which the jury is to have regard, in conjunction with any other relevant matters, in considering whether he so believed."

    We think that in enacting those provisions Parliament must have accepted the recommendations of the Heilbron Committee, so that the provisions are declaratory of the existing law as stated in Morgan.

    Any direction as to the definition of rape should therefore be based upon section 1 of the 1976 Act and upon Morgan, without regard to Caldwell or Lawrence, which were concerned with recklessness in a different context and under a different statute.

    The word "reckless" in relation to rape involves a different concept to its use in relation to malicious damage or, indeed, in relation to offences against the person. In the latter cases the foreseeability, or possible foreseeability, is as to the consequences of the criminal act. In the case of rape the foreseeability is as to the state of mind of the victim.

    A practical definition of recklessness in sexual offences was given in R. v. Kimber (1983) 1 W. L. R. 1118, where the court was concerned with how far an honest belief in consent constituted a defence to a charge of indecent assault. The defendant said in evidence:

    "I was not really interested in Betty's" (the victim's) "feelings at all. "
    Lawton L. J. at page 1123 said:

    "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. "

    In summing-up a case of rape which involves the issue of consent, the judge should, in dealing with the state of mind of the defendant, first of all direct the jury-that before they could convict of rape the Crown had to prove either that the defendant knew the woman did not want to have sexual intercourse, or was reckless as to whether she wanted to or not. If they were sure he knew she did not want to they should find him guilty of rape knowing there to be no consent. If they were not sure about that, then they would find him not guilty of such rape and should go on to consider reckless rape. If they thought he might genuinely have believed that she did want to, even though he was mistaken in his belief, they would find him not guilty. In considering whether his belief was genuine, they should take into account all the relevant circumstances (which could at that point be summarised) and ask themselves whether, in the light of those circumstances, he had reasonable grounds for such a belief. If, after considering those circumstances, they were sure he had no genuine belief that she wanted to, they would find him guilty. If they came to the conclusion that he could not care less whether she wanted to or not, but pressed on regardless, then he would have been reckless and could not have believed that she wanted to, and they would find him guilty of reckless rape.

    Satnam pleaded guilty to a count of indecent assault based on the same facts, which was ordered to remain on the file on the usual terms. We sentenced him to one day's imprisonment on that count since he has already served a substantial part of his five years' sentence for rape. No such count was laid against Kewal, although having regard to the age of the girl there would, on the admitted facts, have been no defence to such a charge.

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