The right to make mistakes

This week is shaping up as a big one for criminal justice and human rights. In Victoria, something big may (or may not) be happening at 9.30AM on Monday. And in the UK, two major HRA judgments will appear sometime on Wednesday. One concerns the compatibility of anonymous witnesses (in the context of gangland wars in England) with the HRA’s fair trial rights, part of the broader question of whether the right to a fair trial includes a US-style right to confrontation. (Probably not, but the details will be interesting.)

The second – an appeal from G v R [2006] EWCrim 821–  is more momentous: does the HRA confer a right to the defence of mistake of fact? The timing is great, given last week’s High Court decision on the common law version of that right. Indeed, both decisions involve child sexual assault and the issue of mistake of fact as to age. England’s common law approach on mistake under statutory offences differs from Australia’s, but will the HRA bring the two systems back into line? That question is not just of interest to the English, but rather has direct implications in Victoria, with its intepretation mandate and declaration power.

The major question in the English case is whether the defence of mistake is required by the UKHRA equivalent to the presumption of innocence:

25(1) A person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.

The orthodox view is that this right is a procedural one: it requires that the elements of any criminal offence must be proven beyond reasonable doubt, but doesn’t control what those elements are. 

The problem with this view is that it produces an absurdity. Compare these two provisions:

45(1) A person who takes part in an act of sexual penetration with a child under the age of 16 is guilty of an indictable offence.

(4) Consent is not a defence to a charge under subsection (1) unless at the time of the alleged offence the child was aged 10 or older and… the accused satisfies the court on the balance of probabilities that he or she believed on reasonable grounds that the child was aged 16 or older…

5(1) A person commits an offence if–

(a) he intentionally penetrates the vagina, anus or mouth of another person with his penis, and

(b)the other person is under 13.

The first provision is Victoria’s main child sexual offence. Note that if CTM – who said he thought his 15 year-old partner was 16 – was charged in Victoria, then the trial judge’s direction that the burden of proof was on him to establish that mistake would have been correct. However, it’s also clear that s45(4) limits the presumption of innocence. The only thing that can save s45(4) from a declaration of incompatibility is Charter s7(2).

Now consider the second provision, which is one of the UK child sexual offence provisions. G was charged under that provision. He says that he thought his partner was 15, whereas she was 12. However, s5(1) doesn’t provide for any defence of mistake (and, unlike the NSW law CTM was charged under, it’s pretty clear that that’s what the UK parliament intended, as other offences do provide for that defence.) But, applying the orthodox view of the presumption of innocence, the English offence is compatible with the presumption, because all the elements of the offence still have to be proven by the prosecution. 

So, Victoria’s more lenient provision breaches the presumption of innocence, while England’s harsher provision doesn’t’! That’s the absurdity. The House of Lords has three options: (a) hold that the presumption of innocence requires that the prosecution disprove traditional features of criminal responsibility like mistake; (b) hold that the presumption of innocence is compatible with defences that cast a burden of proof on defendants (in the face of some pretty strong ECtHR precedents); (c) accept the absurdity. The last option is the likely one and then it’ll be on to the ECtHR to sort the issue out once and for all.

There’s another out too, which is to argue that offences that criminalise private conduct – like sex – must have a defence of mistake in order to be compatible with the right to privacy, as otherwise people like G will have their privacy arbitrarily interfered with. In England – as in Victoria and most other jurisdictions – this argument gains considerable force from the automatic application of offender registration laws, which undermine the flexibility that would otherwise flow from sentencing law. As well, there’s an argument that G should have been charged under an identical offence applicable to under 18s – G was 15 – which provides for much smaller sentences and no registration requirement. 

As someone who’ll soon be writing an Australian criminal law text with an emphasis on statutory offences and human rights law, I’m very happy about the sudden rush of major decisions on these questions!

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