2 L.R.C.C.R. 154 (1875)
Henry Prince stood trial at the Surrey assizes before Denman, J.1 He faced a charge under section 55 of the Offences against the Person Act, 1861, for unlawfully taking Annie Phillips, an unmarried girl under sixteen years of age, out of the possession and against the will of her father.2
The jury returned a verdict of guilty.3 Judgment was respited to allow the Court for Crown Cases Reserved to consider a legal question arising from the case.4
The evidence established that Annie Phillips was fourteen years old.5 She had told Prince she was eighteen, and she appeared older than her actual age.6 Prince maintained that he had acted on a bona fide and reasonable belief that Phillips was eighteen years old.7
Denman, J., reserved the case for the opinion of the Court on whether the defendant's belief constituted a defence to the charge.8
Whether a bona fide and reasonable belief that the girl was over sixteen years of age constitutes a defence to a charge under section 55 of the Offences against the Person Act 1861 of unlawfully taking an unmarried girl under sixteen out of the possession and against the will of her father?9
The Offences against the Person Act 1861 section 55 makes it a misdemeanor to unlawfully take an unmarried girl under sixteen out of the possession and against the will of her father.10 A defendant's bona fide reasonable belief that the girl is over sixteen does not provide a defense.11 This is because the forbidden act is wrongful in itself.12 The taker assumes the risk regarding the girl's age.13
No. Prince knowingly took Annie Phillips out of her father's possession and against his will.14 The jury found all elements of the offense present.15 The evidence confirmed that she was fourteen and under her father's care.16 Although Prince held a bona fide and reasonable belief that she was eighteen based on her statements and appearance, the statute contains no requirement that the defendant know the girl is under sixteen.17
Such a mistake does not excuse the conduct.18 The legislature intended to place the risk of the girl's age on the person who takes her from her custodian without lawful cause.19 Adjacent sections of the Act treat similar age-based protections without a mistake defense.20 These provisions reinforce that the belief does not negate liability here.21
The bona fide and reasonable belief that the girl was over sixteen years of age does not constitute a defence to the charge, and the conviction should be affirmed.22
Related opinions on this issue
Blackburn, J., concurred in affirming the conviction on the ground that the legislature's intention in enacting section 55, considered alongside the series of provisions in sections 50 through 56 for the protection of young women, was to make the offense complete upon proof of the taking of a girl who was in fact under sixteen, without requiring the prosecution to establish the defendant's knowledge of her age.23 He observed that it would be absurd to suppose the legislature intended the law's protection to fail merely because the taker was reasonably mistaken as to age.24 He drew support from the historical context of earlier abduction statutes as well as prior decisions including R.
v. Robins, R. v. Olifier, and R. v. Mycock.25
Denman, J., agreed that the conviction should stand.26 He reasoned that the term unlawfully in section 55 means without lawful excuse or justification rather than with knowledge of the girl's age.27 He concluded that a bona fide reasonable belief that the girl was eighteen does not constitute a lawful excuse for taking her out of her father's possession against his will.28
The father possessed a right to her custody up to the age of twenty-one.29 The defendant's mistaken belief could not justify violating that right after he had knowingly performed the wrongful act of removal.30
Brett, J., dissented and would have quashed the conviction, contending that the general principle that an act does not make a person guilty unless the mind is guilty requires an honest and reasonable mistake of fact to excuse liability when the believed facts would have rendered the conduct lawful.31 He noted that if the facts had been as Prince believed them to be, with the girl over sixteen and consenting, no criminal offense would have occurred.32 Therefore the jury's finding of an honest and reasonable belief prevented the concurrence of act and guilty mind necessary for conviction under the statute.33