Regina v. Prince

[Defendant took a girl under the age of 16 and against the will of her father in violation of the Offences against the Person Act, 1861: "Whosoever shall unlawfully take . . . any unmarried girl, being under the age of sixteen years, out of the possession and against the will of her father or mother, or of any other person having the lawful care or charge of her, shall be guilty of a misdemeanour. . . ."

At the assizes for Surrey held at Kingston-on-Thames on Mar. 24, 1875, Henry Prince was tried before DENMAN, J., on the charge of having unlawfully taken one Annie Phillips, an unmarried girl being under the age of sixteen years, out of the possession, and against the will of her father, contrary to s. 55 of the Offences against the Person Act, 1861. He was found guilty, but judgment was respited in order that the opinion of the Court for Crown Cases Reserved might be taken. All the facts necessary prima facie to support a conviction existed and were found by the jury to have existed, but the defendant pleaded in defence that the girl Annie Phillips, though proved by her father to be fourteen years old on April 6, 1875, looked very much older than sixteen, and the jury found upon reasonable evidence that before the defendant took her away she had told him that she was eighteen, that the defendant bona fide believed that statement, and that such belief was reasonable. If the court were of the opinion that under those circumstances a conviction was right, the defendant was to appear for judgment at the next assizes for Surrey; otherwise the conviction was to be quashed.]

BRAMWELL, B., read the following judgment, to which KELLY, C.B., CLEASBY, B., GROVE, J., POLLOCK, B., and AMPHLETT, B., assented.-- The question in the case depends on the construction of the statute under which the prisoner is indicted. Section 55 of the Offences against the Person Act, 1861, enacts that:

"Whosoever shall unlawfully take . . . any unmarried girl being under the age of sixteen years, 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. . . ."

The word "unlawfully" means "not lawfully," "otherwise than lawfully" "without lawful cause"--such as would exist for instance on a taking by a police officer on a charge of felony or a taking by a father of his child from her school. The statute, therefore, may be read thus: "Whosoever shall take etc. without lawful cause." The prisoner had no such cause, and consequently except in so far as it helps the construction of the statute, the word "unlawfully" may, in the present case, be left out, and then the question is: Has the prisoner taken an unmarried girl under the age of sixteen out of the possession of and against the will of her father? In fact he has; but it is said not within the meaning of the statute, and that that must be read as though the word "knowingly" or some equivalent word was in.

The reason given is that as a rule mens rea is necessary to make any act a crime or offence, and that, if the facts necessary to constitute an offence are not known to the alleged offender, there can be no mens rea. I have used the word "knowingly," but it will perhaps be said that here the prisoner not only did not do the act knowingly, but knew, as he would have said, or believed, that the fact was otherwise than such as would have made his act a crime; that here the prisoner did not say to himself: "I do not know how the fact is, whether she is under sixteen or not, and will take the chance," but acted on the reasonable belief that she was over sixteen; and that though, if he had done what he did, knowing or believing neither way, but hazarding it, there would be a mens rea, there is not one when he believes he knows that she is over sixteen. It is impossible to suppose that a person taking a girl out of her father's possession against his will is guilty of no offence within the statute unless he, the taker, knows she is under sixteen--that he would not be guilty if the jury were of opinion he knew neither one way nor the other. Let it be then that the question is whether he is guilty where he knows, as he thinks, that she is over sixteen. This introduces the necessity for reading the statute with some strange words introduced; as thus: "Whosoever shall take any unmarried girl being under the age of sixteen, and not believing her to be over the age of sixteen, out of the possession," etc. Those words are not there, and the question is whether we are bound to construe the statute as though they were, on account of the rule that mens rea is necessary to make an act a crime.

I am of opinion that we are not, nor as though the word "knowingly" was there, and for the following reasons. The act forbidden is wrong in itself, if without lawful cause. I do not say illegal, but wrong. I have not lost sight of this, that though the statute probably principally aims at seduction for carnal purposes, the taking may be by a female, with a good motive. Nevertheless, though there may be cases which are not immoral in one sense, I say that the act forbidden is wrong. Let us remember what is the case supposed by the statute. It supposes that there is a girl--it does not say a woman, but a girl something between a child and a woman--it supposes she is in the possession of her father or mother, or other person having lawful care and charge of her, and it supposes there is a taking, and that that taking is against the will of the person in whose possession she is. It is, then, a taking of a girl in the possession of someone, against his will. I say that done without lawful cause is wrong, and that the legislature meant it should be at the risk of the taker, whether or not the girl was under sixteen. I do not say that taking a woman of fifty from her brother's or even father's house is wrong. She is at an age when she has a right to choose for herself; she is not a girl, nor of such tender age that she can be said to be in the possession of or under the care or in the charge of anyone. If I am asked where I draw the line, I answer at when the female is no longer a girl in anyone's possession. But what the statute contemplates, and what I say is wrong, is the taking of a female of such tender years that she is properly called a girl, and can be said to be in another's possession, and in that other's care or charge. No argument is necessary to prove this; it is enough to state the case. The legislature has enacted that if anyone does this wrong act he does it at the risk of the girl turning out to be under sixteen. This opinion gives full scope to the doctrine of mens rea. If the taker believed he had the father's consent, though wrongly, he would have no mens rea. So if he did not know she was in anyone's possession, nor in the care or charge of anyone. In those cases he would not know he was doing the act forbidden by the statute, an act which, if he knew she was in the possession and care or charge of anyone, he would know was a crime or not according as she was under sixteen or not. He would know he was doing an act wrong itself, whatever was his intention, if done without lawful cause. In addition to these considerations one may add that the statute does use the word "unlawfully," and does not use the words "knowingly or not believing to the contrary." If the question was whether his act was unlawful there would be no difficulty as it clearly was not lawful.

This view of the section, to my mind, is much strengthened by a reference to other sections of the same statute. Section 50 makes it a felony unlawfully and carnally to know a girl under the age of ten. Section 51 enacts (when she is above ten and under twelve) that unlawfully and carnally to know her is a misdemeanour. Can it be supposed in the former case, a person indicted might claim to be acquitted on the ground that he had believed the girl was over ten though under twelve, and so that he had only committed a misdemeanour, or that he believed her over twelve, and so had committed no offence at all; or that in a case under s. 51, he could claim to be acquitted, because he believed her over twelve? In both cases the act is intrinsically wrong. For the statute says if "unlawfully" done. The act done with mens rea is unlawfully and carnally knowing the girl, and the man doing that act does it at the risk of the child being under the statutory age. It would be mischievous to hold otherwise. So s. 56 by which whoever shall take away any child under fourteen, with intent to deprive parent or guardian of the possession of the child, or with intent to steal any article upon such child, shall be guilty of felony. Could a prisoner say I did take away the child to steal its clothes, but I believed it to be over fourteen? If not, then neither could he say I did take the child with intent to deprive the parent of its possession, but I believed it over fourteen. Because if words to that effect cannot be introduced into the statute where the intent is to steal the clothes, neither can they where intent is to take the child out of the possession of the parent. If these words cannot be introduced in s. 56, why can they be in s. 55?

The same principle applies in these cases. In R. v. Forbes and Webb a man was held liable for assaulting a police officer in the execution of his duty, though he did not know he was a police officer. Why? because the act was wrong in itself. So also in the case of burglary; could a person charged claim an acquittal on the ground that he believed it was past 6 a.m. when he entered, or in housebreaking that he did not know the place broken into was a house. As to the case of marine stores it was held properly that there was no mens rea where the person charged with the possession of naval stores with the Admiralty mark did not know the stores he had bore the mark: R. v. Sleep; because there is nothing prima facie wrong or immoral in having naval stores unless they are so marked. But suppose someone told him there was a mark, and he had said he would chance whether or not it was the Admiralty mark. So in the case of the carrier with game in his possession, unless he knew he had it, there would be nothing done or permitted by him, no intentional act or omission. So of the vitriol senders there was nothing wrong in sending such packages as were sent unless they contained vitriol: Hearne v. Garton. Take also the case of libel where the publisher thought the occasion privileged, or that he had a defence under Lord Campbell's Act, but was wrong. He would not be entitled to be acquitted, because there was no mens rea. Why? Because the act of publishing written defamation is wrong where there is no lawful cause. Further, there have been four decisions on this statute in favour of the construction I contend for. I say it is a question of construction of this particular statute no doubt brining thereto the common law doctrine of mens rea being a necessary ingredient of crime. It seems to me impossible to say that where a person takes a girl out of her father's possession, not knowing whether she is or is not under sixteen, that he is not guilty, and equally impossible when he believes, but erroneously, that she is old enough for him to do a wrong act with safety. I think the conviction should be affirmed.

BRETT, J, Dissenting.

[I]f the facts had been as the prisoner, according to the finding of the jury believed them to be, he would have done no act which has ever been a criminal offence in England; he would have done no act in respect of which an civil action could have ever been maintained against him; he would have done no act for which, if done in the absence of the father, and done with the continuing consent of the girl, the father could have had any legal remedy.

Upon all the cases I think it is proved that there can be no conviction for crime in England in the absence of a criminal mind or mens rea. Then comes the question: What is the true meaning of the phrase? I do not doubt that it exists where the prisoner knowingly does acts which would constitute a crime if the result were as he anticipated, but in which the result may not improbably end in bringing the offence within a more serious class of crime. As if a man strike with a dangerous weapon with intent to do grievous bodily harm and kills. The result makes the crime murder; the prisoner has run the risk. So, if a prisoner do the prohibited acts without caring to consider what the truth is as to facts, as if a prisoner were to abduct a girl under sixteen without caring to consider whether she was in truth under sixteen, he runs the risk. So, if he without abduction defiles a girl who is in fact under ten years old, with a belief that she is between ten and twelve, if the facts were as he believed he would be committing the lesser crime. Then he runs the risk of his crime resulting in the greater crime. It is clear that ignorance of the law does not excuse. It seems to me to follow that the maxim as to mens rea applies whenever the facts which are present to the prisoner's mind, and which he has reasonable ground to believe, and does believe to be the facts, would, if true, make his acts no criminal offence at all. It may be true to say that the meaning of the word "unlawfully" is without justification or excuse. I, of course, agree that, if there be a legal justification, there can be no crime, but, I come to the conclusion that a mistake of fact on reasonable grounds, to the extent that, if the facts were as believed, the acts of the prisoner would make him guilty of no criminal offence at all, is an excuse, and that such excuse is implied in every criminal charge and every criminal enactment in England. I agree with LORD KENYON that "such is our law," and with COCKBURN, C.J., that "such is the foundation of all criminal justice."