This article, the fourth in a series on criminal intent, looks at B v. Director of the Public Prosecutor’s Office (“DPP”), [2000] 1 All ER 833, [2000] Crim. L. Rev. 403 (HL) (UK). The second case to signal a paradigm shift in English common criminal law, B v. The DPP allowed English common law to move further towards uniformity and coherence.
In B v. DPP, the 15-year-old defendant repeatedly asked a 13-year-old girl to perform oral sex on him. The girl refused.
The Crown indicted B based on the Indecency with Children Act, 1960, 8 and 9 Eliz. 2, ยง 1 (1) (Eng.). That provided,
“Any person who commits an act of gross indecency with a child under fourteen years of age or with respect to him, or who incites a child under that age to commit such an act with him or with another person, shall be sentenced to prison for a period of time not to exceed two years, or in summary sentence to imprisonment for a term not exceeding six months, to a fine not to exceed one hundred pounds, or both “.
Parliament amended the statute to impose a 10-year sentence.
The relevant defense was “error of fact”, which differed between crimes of general and specific intent. General intent offenses require “factual error” evidence to be honest (subjective) and reasonable (objective).
Crimes of specific intent, however, required evidence of error just to be honest (subjective). Therefore, specific intent offenses allowed any minor error to mitigate the offense charged to a misdemeanor included.
Previously, English courts interpreted legal silence on specific intention to require proof of general intention. But here Lord Nicholls interpreted silence to rule out strict liability. In fact, Lord Nicholls interpreted the silence on mens rea to outlaw a crime with specific intent, not general intent.
To rule out the general intention, Lord Nicholls analyzed the error of the defense of the facts, rejecting the requirement that it be honest and reasonable. Consequently, the law required evidence of factual error just to be honest.
Disregarding an objective element, Lord Nicholls reasoned objective standard behavior with the crimes of negligence (that is, what the defendant should have known, not what he actually believed). Parliament can enact crimes of negligence, and Lord Nicholls admitted that this would require an honest and reasonable error of evidence. But Lord Nicholls determined that this statute did not expressly define an element of mens rea negligence. Similarly, in this case the law required evidence of factual error just to be honest.
He stated: “… this cannot be accommodated in a general law principle of general application that deals with the need for a mental element as an essential ingredient of a crime …”
Lord Nicholls reasoned that the statue required the Crown to test each material element with the required mens rea. Reasoning by analogy, common law defined the mens rea element of rape as reckless disregard or intention to act in the absence of consent.
In analyzing the severity of an offense based on exposure, Lord Nicholls determined that the Crown’s evidence for a crime of specific intent must be more particularized than the “moral conviction” requirement of general intent.
This statute originally imposed a two-year sentence. Based on strong public policy to protect young people, Parliament defined crimes 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 made strict liability disproportionate.
Lord Nicholls interpreted the element of age as a concomitant circumstance. Unlike strict liability offenses that omitted the mens rea test, here Lord Nicholls reasoned that the Crown’s evidence must prove not only the concomitant circumstance, but also the mens rea with respect to the concomitant circumstance.
Lord Nicholls stated that if “Parliament considers that the position should be different with regard to this serious social problem, Parliament itself must face the difficulties and express its will in clear terms”.
B v. The DPP demonstrates a progression of common law in the direction of the MPC. The MPC reflects the elementary approach to defining specific crimes of intent. The MPC, however, provides a uniform definition of the elements of mental guilt. Therefore, MPC jurisdictions can apply analog reasoning to define offenses and administer the law. B v. DPP and Morgan represent common law moving in the same direction.
