[1969]

246
2 W.L.R.

[QUEEN'S BENCH DIVISION]

REGINA v. ASSISTANT RECORDER OF KINGSTON-UPON-HULL, Ex parte MORGAN

1968 Dec. 5 Lord Parker C.J., Ashworth and Willis JJ.

Crime - Gross indecency - Consent - Consent of Director of Public Prosecutions - Defendant charged with inciting boy under
age of 14 to commit act of gross indecency - Whether Director's consent necessary to institution of proceedings -
Indecency with Children Act, 1960 (8 & 9 Eliz. 2, c. 33), s. 1 (1) - Sexual Offences Act, 1967 (c. 60), s. 8.
Statute - Construction - Homosexual offences - Section requiring consent of Director of Public Prosecutions for
institution of proceedings for "aiding, abetting, counselling, procuring or commanding" commission of offence -
Incitement to commit offence - Common law misdemeanour - Whether section applicable - Sexual Offences Act, 1967, s. 8.

The defendant pleaded not guilty to an indictment charging him with inciting a boy aged seven to commit an act of gross
indecency with him, contrary to section 1 (1) of the Indecency

[1969] 247
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2 W.L.R.
Kingston-upon-Hull

with Children Act, 1960.1 The proceedings were instituted without the consent of the Director of Public Prosecutions. At
the end of the prosecution case the defendant's counsel submitted that the offence charged was covered by section 8 of the
Sexual Offences Act, 1967,2 and that the proceedings were a nullity since the consent of the Director of Public Prosecutions
had not been obtained. The assistant recorder acceded to the submission and the defendant was released.

On an application for order of mandamus directing the assistant recorder to assume jurisdiction and try the case, in which
it was contended that section 8 of the Act of 1967 did not apply to the offence charged, and that the consent of the Director of
Public Prosecutions was not necessary:-

Held, granting the application, that the words "aiding, abetting, counselling, procuring and commanding" used in section 8
of the Sexual Offences Act, 1967, constituted a completely different offence from incitement, which was a common law
misdemeanour, and since there was no reference in section 8 to the offence of incitement, the section did not cover the present
charge and the consent of the Director to the prosecution was not required.

Per curiam. If the full offence of gross indecency with a child under the age of 14 contrary to section 1 (1) of the
Indecency with Children Act, 1960, were alleged, section 8 of the Act of 1967 would apply and the consent of the Director of
Public Prosecutions would have to be sought (post, p. 248H).

No cases are referred to in the judgment.

The following case was cited in argument:
Reg. v. Warn [1968] 1 Q.B. 718; [1968] 2 W.L.R. 131; [1968] 1 All E.R. 338, Ct.-M.A.C.; [1968] 3 W.L.R.
609; [1968] 2 All E.R. 300, H.L.(E.).

APPLICATION for order of mandamus.

On May 27, 1968, the defendant, Bernard Alan Clapp, pleaded not guilty to an indictment charging him with
on April 6 inciting Timothy James Allerton, a boy aged seven, to commit an act of gross indecency with him,
contrary to section 1 (1) of the Indecency with Children Act, 1960. At the end of the prosecution case it was
submitted on behalf of the defendant that the proceedings were a nullity because they had not been instituted with
the consent of the Director of Public Prosecutions as required by section 8 of the Sexual Offences Act, 1967. The
assistant recorder, Alexander Clifford Lauriston, acceded to the submission, discharged the jury from giving a
verdict, and the defendant was released. The prosecutor, David Irvin Morgan, applied for an order of mandamus
directed to the assistant recorder directing him to assume jurisdiction and try the prosecution of the defendant, on
the grounds that the provisions of section 8 of the Act of 1967 did not extend to the offence charged in the
indictment; that there was no necessity to obtain the consent of the Director of Public Prosecutions; and that,
accordingly, the assistant recorder had jurisdiction to try and should have tried the case.

[1969] 248
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Roger Frisby for the prosecutor.

R. A. R. Stroyan for the assistant recorder.

LORD PARKER C.J. In these proceedings Mr. Frisby moves on behalf of the prosecutor, David Irvin Morgan,
for an order of mandamus directed to Alexander Clifford Lauriston, the assistant recorder of Kingston-upon-Hull,
directing him to assume jurisdiction and try the prosecution of Bernard Alan Clapp. It arose in this way: on May 27
of this year, the defendant, Clapp, appeared before the assistant recorder and pleaded not guilty to an indictment
containing one count only, namely, that on April 6 he had incited Timothy James Allerton, a boy aged seven years,
to commit an act of gross indecency with him, contrary to section 1 (1) of the Indecency with Children Act, 1960. In
fact the proceedings had not been instituted with the consent of the Director of Public Prosecutions, and the point
was taken at the end of the prosecution case that the proceedings were therefore a nullity. The assistant recorder
acceded to this submission, discharged the jury from giving a verdict, and the defendant was released. It is now said
that the assistant recorder erred in so doing and should be ordered to try the case.
The provision providing for the consent of the Director of Public Prosecutions which was relied on is section 8
of the Sexual Offences Act, 1967. That was an Act dealing with homosexual offences, and section 8 provides that:
"No proceedings shall be instituted except by or with the consent of the Director of Public Prosecutions
against any man for the offence of buggery with, or gross indecency with, another man, for attempting to
commit either offence, or for aiding, abetting, counselling, procuring or commanding its commission where
either of those men was at the time of its commission under the age of 21. …"

The question is whether those words, admittedly wide words, cover the offence which is constituted by section
1 (1) of the Indecency with Children Act, 1960, under which the defendant in this case was charged. That
subsection provides, so far as it is material:
"Any person who commits an act of gross indecency with or towards a child under the age of 14, or who
incites a child under that age to such an act with him or another, shall be liable"

and so on. What was urged before the assistant recorder and has been urged in this court is, first, that the words
of section 8 of the Sexual Offences Act, 1967, are very wide, and that, albeit the offence of inciting is not
specifically there mentioned, the ground is in general covered, so it is said, by the words "counselling, procuring or
commanding the commission of the offence."
There is no doubt that section 8 covers the case of a man committing one of the homosexual acts there referred
to, not merely with another adult but with a child under 14, and accordingly if the full offence of gross indecency
were alleged with a child under 14, then it seems to me that section 8 would bite, as it were, on that offence and the
consent of the Director would have to be sought. But here the offence alleged is the second limb of section 1 (1) of
the Act of 1960, namely, incitement, inciting a child under 14 to such an act, an act of gross indecency. The first
thing which certainly comes to my mind is that bearing in mind that that subsection in the Act of 1960 appeared
specifically to meet a particular case and must
 [1969] 249
Reg. v. Assist. Recorder of
2 W.L.R. Lord Parker C.J.
Kingston-upon-Hull

have been fully in the mind of Parliament when section 8 of the Act of 1967 was passed, there is no reference
whatever to the word "inciting" in section 8, whereas words such as "aiding, abetting, counselling, procuring and
commanding" are all well-known terms. Not only that, but they constitute in my judgment at any rate a completely
different offence from the offence of incitement. It is of the essence of the offence constituted by "counselling,
procuring or commanding" that, as a result of the counselling, procuring or commanding, something should have
happened which constituted either the full offence or the attempt, whereas in the crime of incitement, which is a
common law misdemeanour, it matters not that no steps have been taken towards the commission of the attempt or
of the substantive offence. It matters not, in other words whether the incitement had any effect at all. It is merely the
incitement or the attempting to incite which constitutes the offence. Accordingly, as the charge is worded, and
without knowing anything more about it, it is, as it seems to me, quite impossible to say that it is covered by section
8 of the Sexual Offences Act, 1967.
On that short ground I have come to the conclusion that the assistant recorder was wrong, and I would issue an
order of mandamus to him to try the case.
ASHWORTH J. I agree.
WILLIS J. I agree.

Application allowed.

Solicitors: T. D. Jones & Co. for D. I. Morgan, Kingston-upon-Hull; Collyer-Bristow & Co. for Payne &
Payne, Kingston-upon-Hull.

S. S.

[1969] 2 W.L.R. 246