Lawmakers, Law Lords and Legal Fault: Two Tales from the (Thames) River Bank: Sexual Offences Act 2003; R v G and Another

Abstract

This article examines the conflicting approaches of Parliament and the senior courts to the need for mens rea in relation to those offences which are seriously criminal in character. Prompted by the imminent enactment of the Sexual Offences Act 2003 and the recent decision of the House of Lords in R v G and Another, the conclusion is reached that whilst the senior courts have become ever more sensitive to the need for true mens rea to be insisted upon as a precursor to liability for any serious crime, Parliament, in enacting the Sexual Offences Act 2003, has shown itself, in this context at least, to have priorities of a very different order. In applying a purely subjective meaning to the term reckless it is argued however that their Lordships in G have gone too far and have made prosecutions under the Criminal Damage Act 1971 for unintentionally caused criminal damage potentially unwinnable as well as having thereby perpetuated the definitional plurality of this much litigated mens rea term. The reader is accordingly guided to the conclusion that G is far from being the last word on the meaning of recklessness in English criminal law.