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   LORD HAILSHAM

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. . . The question certified as being of general public importance by the Court of Appeal, and the only point of principle raised on their behalf is:

   'Whether, in rape, the defendant can properly be convicted notwithstanding that he in fact believed that the woman consented if such belief was not based on reasonable grounds.'

   The question arises in the following way.  The appellant Morgan and his three coappellants, who were all members of the RAF, spent the evening of 15th August 1973 in one another's company.  The appellant Morgan was significantly older than the other three, and considerably senior to them in rank.  He was, as I have said, married to the alleged victim, but not, it seems, at the time habitually sleeping in the same bed.  At this time, Mrs Morgan occupied a single bed in the same room as her younger son aged about 11 years, and by the time the appellants arrived at Morgan's house, Mrs Morgan was already in bed and asleep, until she was awoken by their presence.

   According to the version of the facts which she gave in evidence, and which was evidently accepted by the jury, she was aroused from her sleep, frog-marched into another room where there was a double bed, held by each of her limbs, arms and legs apart, by the four appellants, while each of the three young appellants in turn had intercourse with her in the presence of the others, during which time the other two committed various lewd acts on various parts of her body. When each had finished and had left the room, the appellant Morgan completed the series of incidents by having intercourse with her himself.

   According to Mrs Morgan she consented to none of this and made her opposition to what was being done very plain indeed.  In her evidence to the court, she said that her husband was the first to seize her and pull her out of bed.  She then 'yelled' to the little boy who was sleeping with her to call the police, and later, when the elder boy came out on the landing, she called to him also to get the police, and 'screamed'.  Her assailants, however, covered her face and pinched her nose, until she begged them to let her breathe.  She was held, wrists and feet, 'dragged' to the neighbouring room, put on the bed where the various incidents occurred.  At this stage she was overcome by fear of 'being hit'.  There was never a time when her body was free from being held.  When it was all over she grabbed her coat, ran out of the house, drove straight to the hospital and immediately complained to the staff of having been raped.  This last fact was fully borne out by evidence from the hospital.

   In their evidence in court, the appellants made various damaging admissions which certainly amounted to some corroboration of all this.  They admitted that some degree of struggle took place in the bedroom, that Mrs Morgan made some noise which was forcibly suppressed, and that she was carried out forcibly into the other bedroom, and that her arms and legs were separately held.  In addition to this, Mrs Morgan's evidence was far more fully corroborated by a number of statements (each, of course, admissible only against the maker) which virtually repeated Mrs Morgan's own story but in far greater and more lurid detail.  Of course, the appellants repudiated their statements in the witness box, saying that the words were put into their mouths by the police, even though at least one was written out in the hand of the maker of the statement.  I think it likely to the extent of moral certainty that the jury accepted that these statements were made as alleged and contained the truth.  But I need not rest my opinion on this, since the undeniable fact is that the jury accepted, after an impeccable summing-up and adequate corroboration, that Mrs Morgan was telling the truth in her evidence.  I mention all these details simply to show, that if, as I think plain, the jury accepted Mrs Morgan's statement in substance there was no possibility whatever of any of the appellants holding any belief whatever, reasonable or otherwise, in their victim's consent to what was being done.

   The primary 'defence' was consent.  I use the word 'defence' in inverted commas, because, of course, in establishing the crime of rape, the prosecution must exclude consent in order to establish the essential ingredients of the crime.  There is no burden at the outset on the accused to raise the issue. Nevertheless, at the close of the prosecution case the appellants had a formidable case to answer, and they answered by going into the witness box and swearing to facts which, if accepted, would have meant, not merely that they reasonably believed that Mrs Morgan had consented, but that, after she entered the bedroom where the acts of intercourse took place, she not merely consented but took an active and enthusiastic part in a sexual orgy which might have excited unfavourable comment in the courts of Caligula or Nero.

   All four appellants explained in the witness box that they had spent the evening together in Wolverhampton, and by the time of the alleged offences had had a good deal to drink.Their original intention had been to find some women in the town but, when this failed, Morgan made the surprising suggestion to the others that they should all return to his home and have sexual intercourse with his wife.  According to the three younger appellants (but not according to Morgan who described this part of their story as 'lying') Morgan told them that they must not be surprised if his wife struggled a bit, since she was 'kinky' and this was the only way in which she could get 'turned on'.  However this may be, it is clear tht Morgan did invite his three companions home in order that they might have sexual intercourse with his wife and, no doubt, he may well have led them in one way or another to believe that she would consent to their doing so.  This, however, would only be matter predisposing them to believe that Mrs Morgan consented, and would not in any way establish that, at the time, they believed she did consent whilst they were having intercourse.

   I need not enter into the details of what the appellants said happened after they had arrived at the house.  As I have said they admitted that some degree of struggle took place in the wife's bedroom.  But all asserted that after she got into the double bedroom she not merely consented to but actively co-operated with and enjoyed what was being done.  She caressed and masturbated their private parts, she licked their private parts, she made noises and 'moans' of pleasure.  When it was all over she said, 'Have you all had a go?', but not in a sarcastic sense.  In other words, she was actively participating in a sexual orgy, and was anxious to see that each of the participants had enjoyed himself as much as she.

   The choice before the jury was thus between two stories each wholly incompatible with the other, and in my opinion it would have been quite sufficient for the judge, after suitable warnings about the burden of proof, corroboration, separate verdicts and the admissibility of the statements only against the makers, to tell the jury that they must really choose between the two versions, the one of a violent and unmistakeable rape of a sigularly unpleasant kind, and the other of active co-operation in a sexual orgy, always remembering that if in reasonable doubt as to which was true they must give the appellants the benefit of it.  In spite of the valiant attempts of counsel to suggest some way in which the stories could be taken apart in sections and give rise in some way to a situation which might conceivably have been acceptable to a reasonable jury in which, while the victim was found not to have consented, the appellants, or any of them could conceivably either reasonably or unreasonably have thought she did consent, I am utterly unable to see any conceivable half-way house.  The very material which could have introduced doubt into matter of consent goes equally to belief and vice versa.  As the judge's summing-up, so far as relevant to this point, was wholly impeccable, and as the jury obviously accepted the victim's story in its substance there is in my view no conceivable way in which a miscarriage of justice can have taken place and therefore no possibility of quashing these convictions, even though, as I shall show, the substantial question of principle should be answered in favour of the appellants' contention.

   The certified question arises because counsel for the appellants raised the question whether, even if the victim consented, the appellants may not have honestly believed that she did. . . .

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   . . . . An honest belief in consent, [appellants] contend, is enough.  It matters not whether it be also reasonable.  No doubt a defendant will wish to raise argument or lead evidence to show that this belief was reasonable, since this will support its honesty.  No doubt the prosecution will seek to cross-examine or raise arguments or adduce evidence to undermine the contention that the belief is reasonable, because, in the nature of the case, the fact that a belief cannot reasonably be held is a strong ground for saying that it was not in fact held honestly at all.  Nonetheless, the appellants contend, the crux of the matter, the factum probandum, or rather the fact to be refuted by the prosecution, is honesty and not honesty plus reasonableness.  In making reasonableness as well as honesty an ingredient in this 'defence' the judge, say the appellants, was guilty of a misdirection.

   . . . . If it be true, as the learned judged [instructed the jury], that the prosecution have to prove that "each defendant intended to have sexual intercourse without her consent.  Not merely that he intended to have intercourse with her but that he intended to have intercourse without her consent", the defendant must be entitled to an acquittal if the prosecution fail to prove just that.  The necessary mental ingredient will be lacking and the only possible verdict is 'not guilty'.  If, on the other hand, . . . it is necessary for any belief in the woman's consent to be 'a reasonable belief' before the defendant is entitled to an acquittal, it must either be because the mental ingredient in rape is not 'to have intercourse and to have it without her consent' but simply 'to have intercouse' subject to a special defence of 'honest and reasonable belief', or alternatively to have intercourse without a reasonable belief in her consent. . . . No doubt it would be possible, by statute, to devise a law by which intercourse, voluntarily entered into, was an absolute offence, subject to a 'defence' of belief whether honest or honest and reasonable, of which the 'evidential' burden is primarily on the defence and the 'probative' burden on the prosecution.  But in my opinion such is not the crime of rape as it has hitherto been understood.  The prohibited act in rape is to have intercourse without the victim's consent.  The minimum mens rea or guilty mind in most common law offences, including rape, is the intention to do the prohibited act . . . .

   . . . .  I believe that 'mens rea' means 'guilty or criminal mind', and if it be the case, as seems to be accepted here, that mental element in rape is not knowledge but intent, to insist that a belief must be reasonable to excuse it is to insist that either the accused is to be found guilty of intending to do that which in truth he did not intend to do, or that his state of mind, though innocent of evil intent, can convict him if it be honest but not rational.  Even if full value is to be given to the 'probative' burden . . . , this is to insist on an objective element in the definition of intent, and this is a course which I am extremely reluctant to adopt . . . .

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