This article, the fourth in a series about criminal intent, analyzes B v. Director of Public Prosecutions ("DPP"), [2000] 1 All E.R. 833, [2000] Crim. L. Rev. 403 (H.L.) (U.K.). The second case to signal a paradigm shift in English Criminal Common Law, B v. DPP allowed English common law to advance further toward uniformity and consistency.
In B v. DPP, the15-year-old defendant repeatedly asked a 13-year-old girl for oral sex. The girl refused.
The Crown charged B based on the Indecency with Children Act, 1960, 8 & 9 Eliz. 2, § 1(1) (Eng.). It provided,
"Any person who commits an act of gross indecency with or towards a child under the age of fourteen, or who incites a child under that age to such an act with him or another, shall be liable on conviction on indictment to imprisonment for a term not exceeding two years, or on summary conviction to imprisonment for a term not exceeding six months, to a fine not exceeding one hundred pounds, or to both."Parliament amended the statute to impose a 10 year sentence.
The relevant defense was "mistake of fact," which differed between general and specific intent crimes. General intent crimes required "mistake of fact" evidence to be honest (subjective) and reasonable (objective).
Specific intent crimes, however, required mistake evidence only to be honest (subjective). Thus, specific intent crimes allowed any little mistake to mitigate the offense charged to a lesser included offense.
Previously, English courts interpreted statutory silence about specific intent to require proof of general intent. But here Lord Nicholls interpreted the silence to rule out strict liability. Indeed, Lord Nicholls interpreted the silence about mens rea to proscribe a specific intent crime, not general intent.
To rule out general intent, Lord Nicholls analyzed the mistake of fact defense, rejecting a requirement that it be honest and reasonable. Accordingly, the law required mistake of fact evidence only to be honest.
Ruling out an objective element, Lord Nicholls reasoned the objective standard comported with negligence crimes (i.e. what the accused should have known, not what he actually believed). Parliament may enact negligence crimes, and Lord Nicholls conceded this would require honest and reasonable mistake of fact evidence. But Lord Nicholls determined this statute did not expressly define a negligence mens rea element. Likewise, in this case the law required mistake of fact evidence only to be honest.
He stated, "... this can have no place in a common law principle, of general application, which is concerned with the need for a mental element as an essential ingredient of a criminal offence... "
Lord Nicholls reasoned the statue required the Crown to prove each material element with the requisite mens rea. Reasoning by analogy, common law defined rape's mens rea element as either reckless indifference or intent to act in the absence of consent.
Analyzing an offense's seriousness based on exposure, Lord Nicholls determined the Crown's evidence for a specific intent crime must be more particularized than general intent's "moral blamworthiness" requirement.
This statute originally imposed a two year penalty. Based on a strong public policy to protect the young, Parliament defined offenses against children as strict liability crimes, omitting the mens rea element.
To maintain proportionality, these crimes required shorter sentences. Parliament, however, increased the exposure to ten years. The increased penalty rendered strict liability disproportionate.
Lord Nicholls interpreted the age element as an attendant circumstance. Unlike strict liability crimes that omitted proof of mens rea, here Lord Nicholls reasoned the Crown's evidence must prove not only the attendant circumstance, but also the mens rea with respect to the attendant circumstance.
Lord Nicholls stated if "Parliament considers that the position should be otherwise regarding this serious social problem, Parliament must itself confront the difficulties and express its will in clear terms."
B v. DPP demonstrates a progression of common law in the direction of the MPC. The MPC mirrors the elemental approach for defining specific intent crimes. The MPC, however, provides a uniform definition of the mental culpability elements. Thus, MPC jurisdictions may apply analogical reasoning to defining crimes and administering the law. B v. DPP and Morgan represent the common law advancing in the same direction.
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