Director of Public Prosecutions v Morgan

Rape requires proof that the accused knew that the woman did not consent or was reckless as to whether she consented. An honest belief in consent therefore negatives the required intent, even when the belief rests on unreasonable grounds. The reasonableness of the asserted belief remains important evidence when deciding whether it was genuinely held.

A direction requiring both honest and reasonable belief is a misdirection. A conviction may nevertheless stand under the proviso to section 2(1) of the Criminal Appeal Act 1968 where the evidence leaves no realistic possibility that the misdirection caused a miscarriage of justice.

Three appellants were convicted at Stafford Crown Court of raping Mrs Morgan and of aiding and abetting one another. Her husband was convicted of aiding and abetting those rapes. The prosecution case was that she was forcibly restrained and repeatedly raped. The appellants maintained that she consented and actively participated.

The trial judge directed the jury that a belief in consent had to be honestly and reasonably held. The Court of Appeal (Criminal Division) dismissed the consolidated appeals but certified whether a defendant could be convicted of rape despite actually believing that the woman consented where that belief lacked reasonable grounds.

The House also had to decide whether any misdirection could be cured by the proviso to section 2(1) of the Criminal Appeal Act 1968.

1. Disposition. The House unanimously dismissed all four appeals. By a majority of three to two, however, it held that the trial judge had misdirected the jury by requiring a belief in consent to be reasonable. The convictions stood because every Law Lord considered that the proviso to section 2(1) of the Criminal Appeal Act 1968 applied.

2. Mental element of rape. Per Lord Cross of Chelsea, Lord Hailsham of St Marylebone and Lord Fraser of Tullybelton, rape consists of intentional sexual intercourse without the woman's consent. The required mental element is knowledge that she does not consent or recklessness in proceeding without caring whether she consents. A genuine belief that she consents is incompatible with that intent, however inadequate the grounds for the belief may be.

3. Reasonableness as evidence. The prosecution must prove the requisite intent beyond reasonable doubt. The unreasonableness of an asserted belief may be powerful evidence that the accused never held it. It does not create an objective component of the intent or an independent requirement that the belief be reasonable. A direction combining an intention to have intercourse without consent with a requirement of reasonable belief states two incompatible approaches.

4. Earlier mistake authorities. The majority declined to overrule R v Tolson (1889) 23 QBD 168. Lord Cross, Lord Hailsham and Lord Fraser treated its requirement of an honest and reasonable mistake as arising in the different context of a statutory offence whose wording appeared absolute. It did not control the mental element of rape, where absence of the relevant intention prevents the offence from being committed.

5. Minority on the certified question. Lord Simon of Glaisdale and Lord Edmund-Davies would have upheld the reasonable-belief direction. They regarded the established mistake-of-fact authorities as requiring an honest and reasonable belief once the prosecution had established a prima facie case. Lord Edmund-Davies nevertheless expressed substantial sympathy with the subjective approach and regarded legislative reform as the appropriate means of changing the established rule.

6. Proviso. The appellants' case was actual consent and enthusiastic participation, while the jury plainly accepted the complainant's evidence of violent resistance. Per all five Law Lords, no reasonable jury accepting that evidence could also have entertained a reasonable doubt that the appellants honestly believed she consented. The legal error therefore caused no miscarriage of justice.

1. House of Lords: Dismissed all four appeals. By a three-to-two majority it answered the certified question in the negative, but unanimously applied the proviso to section 2(1) of the Criminal Appeal Act 1968.

2. Court of Appeal (Criminal Division): Dismissed the consolidated appeals of McDonald, McLarty and Parker on 25 July 1974 and Morgan's appeal on 14 October 1974. It certified a point of law of general public importance and granted leave to appeal.

3. Stafford Crown Court: On 24 January 1974, McDonald, McLarty and Parker were convicted of rape and of aiding and abetting the other rapes. Morgan was convicted of aiding and abetting the three rapes.