DPP v Morgan

Factual and Procedural Background

Four members of the Royal Air Force (three junior ranks and one senior non-commissioned officer) were tried at The City Crown Court for events that occurred on the night of 15 August 1973. According to the Complainant, the four men forcibly removed her from bed, restrained her and, in turn, had sexual intercourse with her despite her protests. Immediately afterwards she fled to The Hospital and reported that she had been raped.

The three junior servicemen were indicted for rape; the senior serviceman—the Complainant’s husband—was charged with aiding and abetting the rapes. All four were convicted by the jury. The Court of Appeal (Criminal Division) dismissed their appeals but certified a point of law of general public importance. The present opinion is the judgment of the House of Lords (now the Supreme Court) on that further appeal.

Legal Issues Presented

1. Whether, in the offence of rape, a defendant who honestly believed that the woman was consenting can nevertheless be convicted if that belief was not based on reasonable grounds.
2. If the trial judge’s direction on that point was erroneous, whether the convictions should nevertheless be upheld under the proviso to section 2(1) of the Criminal Appeal Act 1968 (the “no–miscarriage proviso”).

Arguments of the Parties

Appellants' Arguments

• Rape requires an intention to have non-consensual intercourse. If the defendant actually believed the woman was consenting—even unreasonably—he lacks that intention and must be acquitted.
• The Crown bears the evidential burden throughout; a defendant need only raise a doubt as to his belief to require an acquittal.
• The requirement that any mistaken belief be “reasonable” is unsupported by the common-law definition of rape and is incompatible with authority outside bigamy.

Respondent's Arguments

• The actus reus of rape is intentional intercourse with a woman who, in fact, does not consent; mens rea is satisfied unless the defendant had an honest and reasonable belief in consent.
• The situation is analogous to bigamy (R v Tolson): an unreasonable mistake cannot excuse criminal liability.
• If some evidence of a reasonable belief is raised, the evidential burden shifts, but absent such evidence the jury may be directed to convict.

Table of Precedents Cited

Court's Reasoning and Analysis

Five Law Lords delivered individual speeches.

• Judge [Cross], Judge [Hailsham] and Judge [Fraser] held that rape requires an intention to have intercourse knowing the woman is not consenting or being reckless as to her consent. Therefore, any actual belief in consent—however unreasonable—negatives that intention. The trial judge’s “honest and reasonable belief” direction was a misdirection of law.
• Judge [Simon] and Judge [Edmund-Davies] regarded the requirement of reasonable grounds as consistent with long-standing common-law authority (especially Tolson) and with broader criminal-law policy that balances the protection of victims against possible abuse of purely subjective defences. On their view the direction was correct.
• All members agreed that, even assuming a misdirection, the verdicts were safe. The Defendants’ account—that the Complainant enthusiastically participated—was rejected by the jury; on those facts no jury, properly directed on either formulation, could have entertained a realistic doubt about the absence of any genuine belief in consent.
• Accordingly, the proviso to section 2(1) of the Criminal Appeal Act 1968 was applied.

Holding and Implications

APPEALS DISMISSED.

The House of Lords upheld all convictions. While their Lordships divided on whether an honest yet unreasonable belief in consent is a complete defence to rape, the majority considered the trial direction defective but nevertheless non-prejudicial. The decision leaves the precise formulation of the mens rea for rape nuanced: three Law Lords favoured a purely subjective test, two required reasonable grounds. No new binding precedent was set because the convictions were affirmed under the statutory proviso, yet the speeches underscore the need for legislative clarity on how mistaken belief in consent should be treated.