Input:
On 6 August 2003 a young man of 17 and a young girl of 13 had sexual intercourse.
Afterwards the young girl told her mother that this had occurred but she suggested that she had not been a willing participant.
Understandably, her mother went to the police and the young man was arrested.
Later her daughter retracted her account of not having consented to sexual relations.
The young man was therefore charged with a less serious offence than that which he might have faced.
It was, nonetheless, a serious charge.
He was charged with having had unlawful carnal knowledge of a girl under the age of 14 years contrary to section 4 of the Criminal Law Amendment Acts (Northern Ireland) 1885 1923.
The young man pleaded guilty to that charge at Belfast Crown Court on 22 June 2004.
That plea had been entered on the basis that the offence created by section 4 was one in which reasonable belief that the girl was over the age of 14 was not available to him as a defence.
The defendant was sentenced to three years detention in a Young Offenders Centre.
The sentence was suspended for two years.
Later, having received different legal advice from that which had prompted his plea of guilty, the young man applied to the Court of Appeal in Northern Ireland for leave to appeal against his conviction.
The issue before the Court of Appeal was whether section 4 of the 1885 Act created an offence in which proof that the defendant did not honestly believe that the girl was over the age of 14 was not required.
That is also the issue with which this court has had to deal.
The legislative provisions
Traditionally, sexual offences (other than forced intercourse) against girls and young women have been dealt with in legislation according to age bands, with, in general, more grave offences reserved for and heavier penalties imposed for crimes involving younger females.
A clearly discernible historical trend of increasing the age of the victim at which liability for more serious offences is incurred, while reducing the sentence to be imposed, can be detected.
Thus, section 20 of the Offences against the Person (Ireland) Act 1829 provided that any person who had unlawful carnal knowledge of a girl under the age of ten years was guilty of a felony, punishable by death.
By contrast, the same section provided that unlawful carnal knowledge of a girl between ten and 12 years was a misdemeanour punishable by a term of imprisonment at the discretion of the court.
Section 50 of the Offences against the Person Act 1861 reduced the sentence to be imposed for the felony of unlawful carnal knowledge of a girl under the age of ten to, at the discretion of the court, penal servitude for life or for a term of not less than three years or imprisonment for a term not exceeding two years with or without hard labour.
For unlawful carnal knowledge of a girl between the ages of ten and 12, a defendant was guilty of a misdemeanour under section 51 of the same Act and liable to be sentenced to penal servitude for three years or to be imprisoned for up to two years with or without hard labour.
Section 3 of the Offences against the Person Act 1875 made it a felony to unlawfully and carnally know and abuse any girl under the age of 12 years.
Section 4(3) of the Criminal Law Amendment Act (Northern Ireland) 1923 provided that the Criminal Law Amendment Acts (Northern Ireland) 1885 1912 and the Criminal Law Amendment Act (Northern Ireland) 1923 should, to the extent to which they applied to Northern Ireland, be cited together as the Criminal Law Amendment Acts (Northern Ireland) 1885 1923.
Section 2 of the 1885 1923 Acts provided for a procuration offence: Any person who . procures or attempts to procure any girl or woman under 21 years of age to have unlawful carnal connexion, either within or without the Queen's dominions, with any other
person or persons . shall be guilty of a misdemeanour
Section 4, as amended, and in so far as is relevant to the present appeal, provided that Any person who unlawfully and carnally knows any girl under the age of 14 years shall be guilty of felony, and being convicted thereof shall be liable to be imprisoned for life or to be fined or both. (As originally enacted, section 4 had stipulated an age of 13 years.
This was increased to 14 by the Children and Young Persons Act (Northern Ireland) 1950).
As also originally enacted, section 5 of the 1885 Act provided for an offence of unlawful carnal knowledge of a girl between 13 and 15.
The age limit was increased by section 13 of the 1950 Act so that in its amended form it provided as follows: Any person who . unlawfully and carnally knows or attempts to have unlawful carnal knowledge of any girl under the age of 17
years; shall be guilty of a misdemeanor
offence of permitting defilement on premises: Section 6, as amended by section 13 of the 1950 Act, provided for an Any person who, being the owner or occupier of any premises, or having, or acting or assisting in, the management or control thereof induces or knowingly suffers any girl to resort to or be in or upon such premises for the purpose of being unlawfully and carnally known by any man, whether such carnal knowledge is intended to be with any particular man or generally, shall . if such girl is under the
age of 17 years be guilty of a misdemeanour
Section 7 provided for an offence of abduction: Any person who with intent that any unmarried girl under the age of 18 years should be unlawfully and carnally known by any man, whether such carnal knowledge is intended to be with any particular man, or generally takes or causes to be taken such girl out of the possession and against the will of her father or mother, or any other person having the lawful care or charge of her, shall be guilty of a misdemeanour, and being convicted thereof shall be liable at the discretion of the court to be imprisoned for any term not exceeding two years or to be fined or both.
Provided that it shall be a sufficient defence to any charge under this section if it shall be made to appear to the court or jury that the person so charged had reasonable cause to believe that the girl was of or above the age of 18 years.
Provisos of a similar nature to that contained in the latter part of section 7 were included in sections 5 and 6 of the 1885 Act as originally enacted.
These were removed by section 2 of the 1923 Act, as amended by section 13 of the 1950 Act: Reasonable cause to believe that a girl was of or above the age of 17 years shall not be a defence to a charge under sub section (1) of section five or under section six of the Criminal Law Amendment
Act 1885
In August 2003, therefore, the Criminal Law Amendment Acts (Northern Ireland) 1885 1923 included five offences in which age was an essential component of the actus reus, of which two (sections 2 and 4) were silent as to the effect, if any, of reasonable belief as to the age of the girl; two (sections 5 and 6) were subject to an express exclusion of a defence of reasonable belief as to age; and one (section 7) was subject to a defence of reasonable belief as to age.
Thus, from 1885 until 1923, unlawful carnal knowledge of a girl of 13 years or more was not an offence under section 4.
During the same period such an offence was committed under section 5 of the 1885 Act if the girl was between the ages of 13 and 15 but a defence of reasonable belief that the girl was 16 years or more was available.
From 1923 until 1950 unlawful carnal knowledge of a girl of 13 or more continued not to be an offence under section 4.
During that time, however, unlawful carnal knowledge of a girl between 13 and 15 years did not require proof under section 5 that the defendant did not believe that the girl was over the age of 16.
From 1950 onwards sexual intercourse with a girl under the age of 14 became an offence under section 4.
The appellants arguments
The appellant argued that the approach to the interpretation of section 4 of the 1885 1923 Acts must be informed by a fundamental common law principle.
This was that there should be a mental element, commonly referred to as mens rea, for criminal liability unless a clear intention was evinced by the words of a statute that a particular criminal offence should be one of strict liability.
The presumption that mens rea was required could only be displaced, it was suggested, where it could be shown that this was the unmistakable intention of Parliament.
Such an intention was less readily found to exist where the offence was a serious one.
In this regard, reliance was placed on the judgment in R v Muhamad [2003] QB 1031 where, at para 19, Dyson LJ said: The offences where no mental element is specified, for the most part, attract considerably lower maximum sentences than those where a mental element is specified.
Since section 4 was silent on the question of whether proof of mens rea was required, the appellant submitted that the offence specified in the provision could only be regarded as not requiring such proof if that had to be unavoidably and necessarily implied.
The suggestion that a particular provision imposed strict liability had to be considered, the appellant argued, in its statutory and social contexts.
The Criminal Law Amendment Acts (Northern Ireland) 1885 1923 fell to be interpreted as they stood at the time of the appellant's offence: that is, with an express provision making clear that no defence of reasonable belief applied to sections 5 and 6, but remaining silent as to the mens rea of an offence contrary to section 4.
The legislative history of the relevant provisions, although not irrelevant, was, the appellant argued, merely one factor to be taken into account.
In this regard, reference was made to the speech of Lord Steyn in R v K [2002] 1 AC 462, para 30 where he said that it was unhelpful to inquire into the history of subjective views held by individual legislators and that the always speaking nature of a statute dealing with sexual offences meant that a particular provision had to be interpreted in the world as it exists today, and in the light of the legal system as it exists today.
The statutory context of section 4 therefore suggested that the presumption that mens rea was required had not been displaced.
The appellant argued further that, if an implication of strict liability was to be considered as compellingly clear, it must arise from a coherent and consistent legislative scheme.
The Acts of 1885 1923 did not fit that description.
The express provision of a defence of reasonable belief to an offence under section 7, when considered alongside the explicit exclusion of such a defence to offences under sections 5 and 6, and silence on the issue under section 4, meant that the legislation contained signposts which pointed in various directions.
It was impossible to detect a convincingly obvious implication.
As to the social context of the offence under section 4, the appellant again referred to the particular strength of the presumption where the offence was serious or, as described by Lord Scarman in Gammon (Hong Kong) v Attorney General of Hong Kong [1985] AC 1, 14, truly criminal.
The offence under section 4 was unquestionably serious and carried a maximum penalty of life imprisonment.
As Lord Bingham said in Sheldrake v Director of Public Prosecutions [2005] 1 AC 264, para 6, The more serious the crime, and the more severe the potential consequences of conviction, the less readily will it be displaced.
The appellant accepted that section 4 dealt with an issue of social concern but pointed out that Lord Scarman in Gammon (Hong Kong) v Attorney General of Hong Kong had observed that the presumption of mens rea should stand unless it could be shown that the creation of strict liability would be effective to promote the objects of the statute.
The objects of the statute in this context were considered to be the encouraging of greater vigilance to prevent the commission of the prohibited act.
To the extent that strict liability might be said to promote the objects of the statute by encouraging greater vigilance against sexual intercourse with girls under the age of 17, it was submitted that this was sufficiently achieved in Northern Ireland by the strict liability imposed under section 5.
Finally, in a written submission provided on his behalf after the hearing of the appeal before this court, it was pointed out that the appellant could not have been convicted of the section 4 offence in 1885 (the time of the original enactment) since the offence at that time related to girls under the age of 13.
Nor could he have been convicted of such an offence until 1950.
An analysis of whether the common law presumption was displaced had to be conducted against the background that no consistent policy approach had been adopted to the question of whether unlawful carnal knowledge of a girl under 14 years should be a strict liability offence.
The case for the respondent
The proviso introduced by sections 5 and 6 of the 1885 Act introduced for the first time, the respondent explained, a defence of reasonable belief as to the age of the person against whom an offence under these sections was charged.
The background against which the defence had been made available was that R v Prince (1875) LR 2 CCR 154 had held that reasonable grounds for believing that the girl involved was over the age of consent did not constitute a defence under section 51 of the Offences against the Person Act 1861.
But when Parliament came to abrogate that rule in 1885, it did so (by virtue of section 5 of the 1885 Act) only in relation to girls between the ages of 13 and 16.
It did not do so in relation to girls under the age of 13.
The decision not to provide for a similar defence under section 4 of the 1885 Act could not have been other than deliberate, it was argued.
This was not the only distinction between sections 4 and 5, however.
A limitation period of three months on the prosecution of offences under section 5 was also provided for but there was no corresponding provision in section 4. (This limitation period was subsequently increased to 12 months but it was expressly recommended that no such limitation should be introduced for an offence of unlawful sexual intercourse with a girl under the age of 13 because of the gravity of that particular offence in this regard, see R v J [2005] 1 AC 562, para 10).
Section 4 of the 1885 Act also made specific provision for a lesser sentence in respect of an attempt.
And, as originally enacted, it also provided for a less severe sentence with respect to young offenders under 16.
Neither of these different sentencing options was provided for by section 5(1), however.
In England and Wales maintenance of the distinction between, on the one hand section 4 and, on the other, sections 5 and 6 of the 1885 Act, could be seen, the respondent argued, in the amendments introduced by section 2 of the Criminal Law Amendment Act 1922.
It appears that the government had intended to remove altogether the defence of reasonable cause to believe that the girl was over the age of 16 years but, by way of compromise, introduced what has become known as the young mans defence.
By virtue of section 2 of the 1922 Act a man of 23 years or less could avail of the defence (on the first occasion that he was charged with an offence under sections 5 or 6 of the 1885 Act) that he had reasonable cause to believe that the girl was over the age of 16 years.
No such defence was provided for in relation to offences under section 4.
In 1923 the Northern Ireland Parliament, in one of its first items of legislation, achieved, according to the respondent, what Parliament in Westminster had failed to bring about in 1922, namely, the complete abolition of the defence of reasonable belief on the part of the defendant that the girl was above the age of consent.
To have abolished that defence in relation to sections 5 and 6 while leaving open the question whether such a defence might be available in respect of the more serious offence under section 4 was inconceivable, the respondent claimed.
It was therefore argued that it has always been undeniably clear that an offence under section 4 should be one in which proof of mens rea as to the age of the victim was not required.
Discussion
The constitutional principle that mens rea is presumed to be required in order to establish criminal liability is a strong one.
It is not to be displaced in the absence of clear statutory language or unmistakably necessary implication.
And true it is, as the appellant has argued, that the legislative history of an enactment may not always provide the framework for deciding whether the clearly identifiable conditions in which an implication must be made are present.
It is also undeniable that where the statutory offence is grave or truly criminal and carries a heavy penalty or a substantial social stigma, the case is enhanced against implying that mens rea of any ingredient of the offence is not needed.
The strength of the constitutional principle in favour of a presumption that criminal liability requires proof of mens rea finds eloquent expression in what Lord Nicholls, in B (A Minor) v Director of Public Prosecutions [2000] 2 AC 428, 460, referred to as the magisterial statement of Lord Reid in Sweet v Parsley [1970] AC 132, 148 149: there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did.
That means that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea . it is firmly established by a host of authorities that mens rea is an essential ingredient of every offence unless some
reason can be found for holding that that is not necessary
where he said: In B (A Minor) Lord Nicholls reinforced that essential message at p 460G the starting point for a court is the established common law presumption that a mental element, traditionally labelled mens rea, is an essential ingredient unless Parliament has indicated a contrary intention either expressly or by necessary implication.
The common law presumes that, unless Parliament has indicated otherwise, the appropriate mental element is an unexpressed ingredient of every statutory offence.
One must begin, therefore, with this strong presumption firmly at centre stage.
And its ready displacement should not be countenanced, as has, perhaps, happened in the past.
In Smith and Hogans Criminal Law, 13th ed (2011), para 7.2 the authors deprecated the tendency of some judges to declaim that the presumption was well embedded only to willingly find that it was easily rebutted.
Lord Bingham made clear in R v K [2002] 1 AC 462, para 18 that description of an offence such as that prescribed by section 4 as an absolute offence or an offence of strict liability is a misnomer.
There must always be deliberation on the part of the defendant in committing the acts which constitute the factual underpinning of the offence.
The real and proper question is whether it must be proved that there was a lack of reasonable belief, on the part of the perpetrator of the acts, that the girl was above the prescribed age.
In R v K at para 17 Lord Bingham referred with approval to Lord Steyns quotation in B (A Minor) at p 470F of Professor Sir Rupert Crosss statement that the presumption that mens rea was required in the case of all statutory crimes was a constitutional principle not easily displaced by a statutory text.
These sturdy assertions provide the setting for the inquiry whether mens rea in relation to the girls age had to be proved in order to found liability under section 4.
That inquiry must start, I believe, with a clear understanding of what the legal position was at the time that the relevant provisions were enacted.
It is true that the subjective intention of individual legislators will not always provide an incontrovertible guide to the meaning of the legislation, as Lord Steyn said in R v K.
But one must at least begin with an examination of what the legislative intention was before considering whether modification of that intention is justified by later amendments or contemporary social contexts.
In my view, there can really be no doubt that section 4 in its original form was intended to impose criminal liability for carnal knowledge of a female under the age of 13 without proof that the perpetrator knew or had reason to believe that she was below that age.
Two considerations make that conclusion inevitable.
Firstly, the decision in R v Prince had confirmed that proof of knowledge or lack of reasonable belief in the age of the victim was not required.
Coming as it did merely ten years before the 1885 Act, that decision formed the crucial backdrop to the enactment of section 4.
It is inconceivable that, had it been intended that such proof was required, section 4 would have remained silent on the issue.
Secondly and relatedly, the juxtaposition of sections 5 and 6 (in which a dispensing proviso was contained) with section 4 makes it impossible to conclude that the absence of such a proviso in section 4 signified anything other than a clear intention that a defence of reasonable belief in the girls age was not to be available.
This is particularly so because the 1885 Act introduced for the first time such a defence in relation to offences of the type provided for in sections 5 and 6.
It seems to me unquestionable that the decision not to extend the defence to offences under section 4 was deliberate and that it clearly signified that the legislature intended that no such defence would be available in relation to offences under that section.
That being so, the next question is whether the amendment in the 1923 Act made any difference to the availability of the defence under section 4.
The appellant contended that the textual amendment of the 1885 Act prompted consideration within a new context of the question whether the presumption that mens rea is required had been displaced.
A change to the statutory framework, the appellant argued, required examination of that question from an entirely new perspective one in which, in contrast to that which had hitherto obtained, the defence of reasonable belief no longer applied to sections 5 and 6 (as a consequence of explicit provision to that effect) but the question of whether it applied to offences under section 4 was open because of the absence of any reference to it in that section.
It would be a curious, indeed anomalous, outcome of the removal of the defence from sections 5 and 6 that it should be implied into section 4 to which it had not previously applied.
At a technical or theoretical level, it can be argued that such a result is feasible because, as the appellant has submitted, the 1885 1923 Acts are to be construed as a whole in their amended form.
Bennion on Statutory Interpretation, 5th ed (2008) describes the effect of textual amendment of a statute at p 290 as follows: . under modern practice the intention of Parliament when effecting textual amendment of an Act is usually to produce a revised text of the Act which is thereafter to be construed as a whole.
Any repealed provisions are to be treated as never having been there, so far as concerns the application of the amended Act for the future. (original emphasis)
The appellant has pointed out that in B (A Minor), in deciding whether the presumption was rebutted, both Lord Nicholls and Lord Steyn had taken account of the amendment of the applicable maximum penalty from two to ten years imprisonment.
And in R v Kumar [2005] 1 WLR 1352, paras 11 13, 28, the Court of Appeal construed section 12 of the Sexual Offences Act 1956 in its present form within an amended statutory framework that included the Sexual Offences Act 1967 and amendments to section 12 in 1994 and 2000, by virtue of which homosexual acts between consenting males of a prescribed age were decriminalised.
It was suggested therefore that a new approach to the interpretation of section 4 is now warranted.
I cannot accept that argument.
In the first place, while the amended legislation is to be construed as a whole in its revised form, it does not follow that its antecedent history be left entirely out of account.
More pertinently, the relevant amendment of the 1885 Act removed a defence which had previously been available for offences under sections 5 and 6 when none had existed for offences under section 4.
To suggest that the removal of the defence under sections 5 and 6 would have the effect of introducing it under section 4 by implication takes contrivance too far.
I am satisfied that in its statutory context section 4 must be interpreted as not requiring proof that the defendant did not know or reasonably believe that the girl was aged 14 or over.
The appellants argument that the Acts of 1885 1923 did not form a coherent and consistent legislative scheme must likewise be rejected.
The fact that the legislation contained signposts which pointed in various directions does not render it incoherent.
It is entirely logical (and in keeping with the historical trend described earlier) that a defence of reasonable belief should be available for the less serious offences prescribed by sections 5 and 6, but that it should not exist for the more grave offence under section 4.
For essentially the same reasons, I would reject the appellants argument that there was no consistent policy approach to the question of whether unlawful carnal knowledge of a girl under 14 years should be a strict liability offence.
On the contrary, the policy approach of protecting younger females by ensuring that a defence of reasonable belief should not be available has been unswerving.
The fact that the age was increased from 13 to 14 does not make the policy inconsistent.
It merely represents the evolution of changing views as to when the policy should take effect.
Finally, there is nothing in the contemporary social context which militates against the denial of the defence of reasonable belief as to age for section 4 offences.
This issue was dealt with authoritatively in R v G (Secretary of State for the Home Department intervening) [2009] AC 92.
In that case the appellant had pleaded guilty to an offence of rape of a child under the age of 13, contrary to section 5 of the Sexual Offences Act 2003.
The prosecution had accepted the appellants claim that the girl had consented to sexual intercourse and had told him that she was 15 years old.
The appellant himself was 15 at the time of the offence and the girl was aged 12.
At para 3 Lord Hoffmann said: The mental element of the offence under section 5, as the language and structure of the section makes clear, is that penetration must be intentional but there is no requirement that the accused must have known that the other person was under 13.
The policy of the legislation is to protect children.
If you have sex with someone who is on any view a child or young person, you take your chance on exactly how old they are.
To that extent the offence is one of strict liability and it is no defence that the accused believed the other person to be 13 or over.
Precisely the same policy considerations underpin section 4 of the 1885 1923 Acts.
Young girls must be protected and, as part of that protection, it should not be a defence that the person accused believed the girl to be above the prescribed age.
As Lady Hale said in para 46 of G, When the child is under 13 [the accused] takes the risk that she may be younger than he thinks she is.
The object is to make him take responsibility for what he chooses to do If you have sexual intercourse with someone who is clearly a child or young person, you do so at your peril.
I would dismiss the appeal.

Output:
The question in this appeal is whether there is a requirement for the prosecution to prove a defendant had an absence of belief that the person they were having sexual intercourse with was over the age of 13, before they can be convicted of an offence of unlawful carnal knowledge of a girl under the age of 14.
The appellant, who was 17 years old at the time, had sexual intercourse with a 13 year old girl.
Initially the girl informed her mother of this fact but told her the intercourse had not been consensual.
The appellant was arrested.
Subsequently however, the girl withdrew the allegation and admitted the sex had been consensual.
As a result, the appellant was charged with the offence of having unlawful carnal knowledge of a girl under the age of 14 contrary to section 4 of the Criminal Law Amendment Acts (Northern Ireland 1885 1923) (the 1885 Act) a serious offence that carries a maximum of life imprisonment.
The appellant was represented and pleaded guilty to the charge at Belfast Crown Court in 2004.
He was sentenced to 3 years detention in a Young Offenders Centre, suspended for 2 years.
He had pleaded guilty on the understanding that it was no defence to a charge under section 4 for the defendant to show he believed the girl was over the age of 13.
Following his conviction the appellant received advice from different solicitors and launched an appeal, arguing that the Crown was indeed required to prove that the appellant did not believe the girl was over 13 years old.
The appellant argued before the Northern Ireland Court of Appeal that section 4 was silent as to such a defence but in view of the legislative history and its seriousness, it must be presumed that there is a mental element to the offence.
The appellant relied on the general presumption that criminal offences require the prosecution to prove mens rea i.e. some intent on the part of the accused, unless explicitly excluded by the language of the statute or necessarily inferred from the language of the offence.
Such a presumption is hard to displace, especially in relation to serious offences.
The Court of Appeal rejected the appellants arguments and held that no defence of reasonable or honest belief existed.
All that was necessary was for the prosecution to prove the accused had had sex with a girl who was actually under the age of 14.
The appellant thus appealed to the Supreme Court.
The Supreme Court unanimously dismisses the appeal.
Lord Kerr gives the judgment of the court.
A clearly discernible historical trend of increasing the age at which liability for more serious offences is incurred, while reducing the sentence imposed, can be detected [3].
Section 4 as originally enacted referred to unlawful carnal knowledge of a girl under 13 years old.
This was amended to 14 years by the Children and Young Persons (Northern Ireland) Act 1950 (the 1950 Act).
Section 5 of the 1885 Act created the same offence in relation to a girl between the ages of 13 15.
Section 5 and section 6 (permitting defilement on premises) contained provisos that it would be a defence to show that the accused reasonably believed the girl was of or above the age of 16 years.
Such defences were abolished by section 2 of the Criminal Law (Northern Ireland) Amendment Act 1923, as amended by section 140 of the 1950 Act.
Section 5 thus referred to any girl under 17 years old, with an express prohibition of any defence of reasonable belief that she was 17 or older.
No such type of defence has ever been explicitly provided in any version of section 4 [7 13].
The constitutional principle that mens rea is presumed to be required in order to establish criminal liability is a strong one.
It is not to be displaced in the absence of clear statutory language or unmistakably necessary implication.
Where the statutory offence is grave and carries a heavy penalty or a substantial social stigma, the case is enhanced against implying that mens rea of any ingredient of the offence is not needed [26].
One must at least begin with an examination of what the legislative intention was before considering whether modification of that intention is justified by later amendments or contemporary social contexts [31].
There can really be no doubt that the section in its original form was intended to impose criminal liability for carnal knowledge of a female under the age of 14 without proof that the perpetrator knew or had reason to believe that she was below that age.
The decision in R v Prince (1875) LR 2 CCR 154 10 years prior to the 1885 Act confirmed that proof of knowledge or lack of reasonable belief in the age of the victim was not required under section 51 of the Offences Against the Person Act 1861.
This formed the crucial backdrop to the 1885 Act.
The juxtaposition of sections 5 and 6 of the 1885 Act, which originally contained a defence of reasonable belief, with section 4 make it clear that no such defence was to be provided for under the latter section [32].
It would be anomalous if the subsequent removal of the defence from sections 5 and 6 meant that it should be implied into section 4 to which it had not previously applied [34].
While the amended legislation is to be construed in its revised form, it does not follow that its antecedent history has to be entirely left out of account.
To suggest that the removal of the defence under sections 5 and 6 would have the effect of introducing it under section 4 by implication takes contrivance too far [36].
The policy approach of protecting younger females by ensuring that a defence of reasonable belief should not be available has been unswerving.
Further, there is nothing in the contemporary social context which militates against the denial of the defence of belief as to age for section 4 offences [37 38].


Input:
This appeal raises an interesting but complicated question as to the meaning of the GLA Roads and Side Roads (Transfer of Property etc) Order 2000 (SI 2000/1552) (the Transfer Order) made by the Secretary of State in exercise of powers conferred by section 405 and following of the Greater London Authority Act 1999 (the GLA Act).
By that Act Parliament reorganised local government in London and created the Greater London Authority (GLA) under a directly elected Mayor of London.
The GLA performs its strategic transport and road traffic functions through the appellant Transport for London (TfL), which became the highway authority for those public highways in London designated as GLA roads, in the GLA Roads Designation Order 2000 (SI 2000/1117) (the Designation Order).
Previously those highways had been the responsibility of individual London borough councils as local highway authorities including, for their respective areas, the respondents London Borough of Southwark and the City of London Corporation (the Councils).
As its name implies, the Transfer Order provided for the transfer from local highway authorities to TfL of specified property and liabilities relating to highways designated as GLA roads by the Designation Order.
The present dispute concerns, in particular, the meaning of the following provisions in article 2 of the Transfer Order (article 2): (1) Subject to paragraph (2) and article 4 below, on the operative date there are hereby transferred to Transport for London in relation to each GLA road the highway, in so far as it is vested in the former (a) highway authority; (b) on the designation date, it was vested the property mentioned paragraph (3) in so far as, (i) in the former highway authority for the purposes of their highway functions in relation to the GLA road (3) The property referred to in paragraph (1)(b) is (a) land, other than land (i) vested in the former highway authority for the purpose of being used for the storage of material required wholly or mainly for the maintenance and improvement of other highways; (ii) where the former highway authority is a relevant authority, held by that authority for the improvement or development of frontages to the highway, or of land adjoining or adjacent to the highway; .
The dispute arose, and was directed to be determined as a preliminary issue, in an arbitration held under article 8 of the Transfer Order.
At its heart, the appeal is about what is transferred by the words in paragraph (1)(a) of article 2: the highway, in so far as it is vested in the former highway authority.
The question is whether that phrase captures everything which the former authority owns in the vertical plane bounded by the road, which may include all the airspace above and all the subsoil below the surface of the road, or only that part which is necessary for the operation, maintenance and repair of the road, ie a slice of the airspace and a slice of the underlying subsoil.
The Secretary of States drafting team adopted, as their model for article 2, the content of section 265 of the Highways Act 1980 (section 265) which provides for the transfer of property and liabilities upon a highway becoming, or ceasing to be, a trunk road.
Although not part of that Act, article 2 therefore forms part, at least by inheritance, of what counsel fairly described as the rich tapestry of the highways legislation in England and Wales.
In Farrell v Alexander [1977] AC 59, at 73, Lord Wilberforce said: self contained statutes, whether consolidating previous law, or so doing with amendments, should be interpreted, if reasonably possible, without recourse to antecedents, and that the recourse should only be had when there is a real and substantial difficulty or ambiguity which classical methods of construction cannot resolve.
Goodes v East Sussex County Council [2000] 1 WLR 1356 was a case about the Highways Act 1980, and its predecessor, the Highways Act 1959.
After citing Lord Wilberforces well known dictum, Lord Hoffmann continued, at p 1360H: It seems to me quite impossible, in construing the Act of 1959, to shut ones eyes to the fact that it was not a code which sprang fully formed from the legislative head but was built upon centuries of highway law.
The provisions of the Act itself invited reference to the earlier law and in some cases were unintelligible without them.
See also, to much the same effect: Cusack v Harrow London Borough Council [2013] UKSC 40; [2013] 1 WLR 2022, per Lord Carnwath at para 19 and per Lord Neuberger at paras 64 65.
Lord Wilberforces wise words have lost none of their force, in an era which has seen an exponential increase in the complexity of legislation.
It is hard enough on the law abiding public that legislation is often unintelligible without the assistance of skilled lawyers.
It is even worse if its meaning requires, in addition, the assistance of a legal historian.
None the less, this is a case, as were the Goodes and Cusack cases, where neither the analysis of the dispute as to statutory meaning, nor the appropriate solution to it, can be undertaken without substantial recourse to the history of English and Welsh highways law and in particular legislation.
Even the innocent sounding word highway is itself capable of having a range of different meanings, dependent upon the context in which it is used.
The Statutory History
The word highway has no single meaning in the law but, in non technical language, it is a way over which the public have rights of passage, whether on foot, on horseback or in (or on) vehicles.
At common law, at least prior to 1835, there was, generally speaking, no necessary connection between those responsible for the maintenance and repair of a public highway and those with a proprietary interest in the land over which it ran.
Prima facie the inhabitants of the parish through which the highway ran would be responsible for its repair, but they were not a corporate body suitable to hold ownership rights in relation to it: see Sauvain on Highway Law (5th ed, 2013) at para 3 05.
As he puts it: It was left to statute, therefore, to create an interest in land which was to be held by the body on whom the duty to repair had fallen.
Parliament began this task, in a rudimentary way, in section 41 of the Highways Act 1835, continued it in section 68 of the Public Health Act 1848, section 96 of the Metropolis Management Act 1855 and section 149 of the Public Health Act 1875.
They all provided for a form of automatic vesting of a property interest in the land over which the highway ran in favour of the body responsible for its maintenance and repair.
A basic feature of the conveyance or transfer of freehold land by reference to an identified surface area is that, unless the context or the language of the grant otherwise requires or provides (eg by a reservation of minerals), its effect is to vest in the transferee not only the surface of the ground, but the subsoil down (at least in theory) to the centre of the earth and the air space up (at least in theory) into the heavens.
Viewed in the vertical plane, the transferee acquires ownership not only of the slice on the surface but of the whole of the space above it, and the ground below it.
But a series of 19th century cases beginning with Coverdale v Charlton (1878) 4 QBD 104 and culminating in the decision of the House of Lords in Tunbridge Wells Corpn v Baird [1896] AC 434, established that the successive statutory provisions for the automatic vesting of proprietary interests in highways in the bodies responsible for their maintenance and repair operated in a much more limited way than would a simple conveyance or transfer of the freehold.
First, it was a determinable, rather than absolute, fee simple, which would end automatically if the body responsible for its repair ceased to be so responsible (eg if the road ceased to be a public highway): see Rolls v Vestry of St George the Martyr, Southwark (1880) 14 Ch D 785.
Secondly it was inalienable, for so long as that responsibility lasted.
Thirdly, and most importantly for present purposes, statutory vesting conferred ownership only of that slice of the land over which the highway ran, viewed in the vertical plane, as was necessary for its ordinary use, including its repair and maintenance.
Following the example of counsel, I shall call this the Baird principle.
That slice of the vertical plane included, of course, the surface of the road over which the public had highway rights, the subsoil immediately beneath it, to a depth sufficient to provide for its support and drainage, and a modest slice of the airspace above it sufficient to enable the public to use and enjoy it, and the responsible authority to maintain and repair it, and to supervise its safe operation.
That lower slice was famously labelled the top two spits in Tithe Redemption Commission v Runcorn Urban District Council [1954] 1 Ch 383 at 407.
A spit is a spades depth.
Although colourful, that phrase says nothing about the necessary airspace above the surface.
Again following counsels example, I prefer the phrase zone of ordinary use.
It is common ground that the zone of ordinary use is a flexible concept, the application of which may lead to different depths of subsoil and heights of airspace being vested in a highway authority, both as between different highways and even, over time, as affects a particular highway, according to differences or changes in the nature and intensity of its public use.
A simple footpath or bridleway might only require shallow foundations, and airspace of up to about ten feet, to accommodate someone riding a horse.
By contrast a busy London street might require deep foundations to support intensive use, and airspace sufficient to accommodate double decker buses, and even the overhead electric power cables needed, in the past, by trolley buses and, now, by urban trams.
The Baird principle was developed so as to limit, in the vertical plane, the defeasible freehold interest automatically vested in the body responsible for the repair of a highway.
This was because, in a series of leading judgments, the court regarded this statutory vesting as a form of expropriation of private property rights without compensation, and was therefore concerned to limit its effect strictly to that which was necessary to achieve the Parliamentary objective, that is conferring upon highway authorities sufficient property to enable them to perform their statutory duties of the repair, maintenance and operation of highways.
Thus for example, in Coverdale v Charlton, Bramwell LJ said (at p 116) that it would be monstrous if the highway authority thereby acquired rights in valuable minerals below the surface.
In Rolls v Vestry of St George the Martyr, Southwark James LJ in a celebrated passage at p 796 said, of section 149 of the Public Health Act 1875: It seems to me very reasonable then to interpret this enactment in a way which gives everything that is wanted to be given to the public authority for the protection of the public rights without any unnecessary violation of the rights of the landowner.
In Tunbridge Wells Corpn v Baird Lord Halsbury LC said, after approving every word of what James LJ had said in the passage quoted above: That the street should be vested in them as well as under their control, may be, I suppose, explained by the idea that as James LJ points out, it was necessary to give, in a certain sense, a right of property in order to give efficient control over the street.
It was thought convenient, I presume, that there should be something more than a mere easement conferred upon the local authority, so that the complete vindication of the rights of the public should be preserved by the local authority; and, therefore, there was given to them an actual property in the street and in the materials thereof.
It is intelligible enough that Parliament should have vested the street qua street and, indeed, so much of the actual soil of the street as might be necessary for the purpose of preserving and maintaining and using it as a street.
At p 442 Lord Herschell said: My Lords, it seems to me that the vesting of the street vests in the urban authority such property and such property only as is necessary for the control, protection and maintenance of the street as a highway for public use.
The modern successor currently in force, to the 19th century legislation to which those authorities refer, is section 263 of the Highways Act 1980.
It provides, so far as is relevant, as follows: Vesting of highways maintainable at public expense. (1) Subject to the provisions of this section, every highway maintainable at the public expense together with the materials and scrapings of it, vests in the authority who are for the time being the highway authority for the highway. (2) Subsection (1) does not apply to a highway with respect to the vesting of which, on its becoming or ceasing to be a trunk road provision is made by section 265 below, It was, rightly, common ground between counsel that the Baird principle is firmly embedded in section 263.
Apart from the section numbers, this provision for automatic vesting was taken, word for word, from section 226 of the Highways Act 1959.
In its 1959 Report, the Committee of Consolidation on Highway Law, chaired by Lord Reading, which had been asked to consider the then draft bill, and whether amendments not of substantial importance to existing legislation should be made, clearly understood the rationale for the application of the Baird principle to what became section 226 (then clause 225), at para 135.
They said: The enactments reproduced in the clause have frequently been considered by the courts and it has been held that they vest in the highway authority the property in the surface of the highway and in so much of the actual soil below and the air above as may be reasonably required for its control, protection and maintenance as a highway.
Of rather more recent origin are those statutory antecedents to what is now section 265 of the Highways Act 1980, which make provision for the transfer of property and liabilities in connection with the designation of a highway as a trunk road, and the revocation of any such designation.
These provisions respond, not to the need to vest in a highway authority rights formerly enjoyed by private owners of the land, but rather to the need to transfer such rights (and liabilities) from one highway authority to another where the changed status of the highway causes a change in the identity of the public body responsible for its maintenance, repair and operation.
Prior to 1929 there was no specific statutory provision for this purpose.
In Finchley Electric Light Co Ltd v Finchley Urban District Council [1903] 1 Ch 437 the question was whether the defendant as local highway authority could restrain the running of a power cable by the plaintiff at a height of 34 feet above Regents Park Road in London.
The council had acquired property rights in relation to the road by automatic vesting under section 149 of the Public Health Act 1875 (a direct statutory predecessor of what is now section 263), the previous owners having been turnpike trustees, who had acquired it for the construction of a road.
The fact that the councils predecessors in title were turnpike trustees did not permit the Court of Appeal to do otherwise than apply the Baird principle to the automatic vesting achieved by section 149, even though the turnpike trustees had acquired their title by conveyance in unqualified terms, so as to have been the owners of the whole of the vertical plane above and below the location of the road.
Collins MR said: It seems to me that the standard which determines this question is, not how much the owner has to give, but how much the local authority under the Public Health Act have the right to take.
A hesitant start towards a more bespoke regime for transfers of property between successive highway authorities was made in section 29 of the Local Government Act 1929, in relation to main roads (renamed county roads) for which, thereafter, county councils rather than local councils were to be responsible.
Section 29 affords little assistance for present purposes because it appears to provide for the vesting only of the materials of the road and the drains belonging to it, leaving the vesting of property in the land itself (including the airspace above it) to the then provision for automatic vesting, in the Public Health Act 1875.
A more ambitious property transfer scheme was undertaken in relation to newly designated trunk roads by section 7 of the Trunk Roads Act 1936.
It provided as follows: Transfer of property and liabilities. (1) When a road becomes a trunk road, then, subject to the provisions of this section, of the property which immediately before the date on which the road became a trunk road was vested in the former highway authority for the purposes of their functions in relation to the road there shall, as from that date, be transferred to, and vest in, the Minister, by virtue of this section, the following property, that is to say: The road and any land (not being land vested in the former highway authority for the purpose of being used for the storage of materials required wholly or partly for the maintenance, repair or improvement of other roads or land acquired for the improvement or development of frontages or of land abutting on or adjacent to the road);
This was the provision in force in relation to trunk roads when the Reading Committee came to review the consolidating and amending Highways Bill in 1959.
Clause 229 of the Bill (which became, without amendment, section 228 of the 1959 Act) provided as follows: Transfer of property and liabilities on change of status of highway. (1) Where a highway becomes a trunk road, then, subject to the provisions of this section, there shall, as from the date on which the highway becomes a trunk road, be transferred to the Minister by virtue of this section (a) the highway, in so far as, immediately before said date, it was vested in the former highway authority, and (b) the property mentioned in the next following subsection, being property which, immediately before the said date, was vested (i) in the former highway authority for the purposes of their functions in relation to the highway, or in a council for the purposes of functions (ii) in relation to the highway under any enactment to which this section applies, and the highway and other property so transferred shall by virtue of this section vest in the Minister: (2) The property referred to in paragraph (b) of the foregoing subsection is (a) land, other than land vested in the former highway authority for (i) the purpose of being used for storage of materials required wholly or mainly for the maintenance or improvement of other highways, or (ii) acquired for improvement or development frontages to the highway, or of land adjoining or adjacent to the highway
It will be immediately apparent that there are significant linguistic similarities and differences between section 7 of the 1936 Act and section 228 of the 1959 Act.
What was previously called the road is now called the highway.
Whereas, in the 1936 Act, the transfer both of the road and other property (including land) was all regulated by the condition that it had been vested in the former highway authority for the purposes of their functions in relation to the highway that condition is, in the 1959 Act, applied in the same language to other property including land, but not in express terms to the highway.
Rather, the condition relating to the highway itself is that it is transferred in so far as, immediately before the said date, it was vested in the former highway authority.
There is also, in section 228(6), a provision for reverse transfer where a trunk road ceases to be a trunk road but it is not suggested that this significantly affects the present dispute.
Nothing in the Reading report (which includes a short commentary on what was then clause 227) suggests that the Committee thought that these changes to the language and layout of the provisions for transfer of property in relation to trunk roads effected any material change to the substance of those provisions.
The wording of section 228 of the 1959 Act was carried forward into what is now section 265 of the 1980 Act with very little alteration.
The phrase and the highway and other properties so transferred shall by virtue of this section vest in the Minister has been removed.
As already noted, article 2 of the Transfer Order takes as its model the provisions of section 265, again with no amendment which has any consequence in relation to the present dispute.
It was, more or less, common ground that since article 2 had been drafted on the basis of the model constituted by section 265, it was to that section that recourse had to be made to resolve the dispute as to the meaning of the article.
Analysis
The question for determination on this appeal, which is more focussed than the more widely drawn preliminary issues, is whether the provision in article 2(1)(a) for the transfer to TfL of the highway in relation to a GLA road, and the identical provision in section 265(1)(a) in relation to a trunk road, is governed by the Baird principle so as, in every case, to limit the property transferred within the vertical plane above and below the highway to the zone of ordinary use.
The appellant TfL claim that it is not so limited.
The respondent Councils say that it is.
This would be an arid academic question if the only way in which local authorities (including the respondent Councils) could ever acquire property rights in relation to highways was by automatic vesting under section 263 and its predecessors.
If that were so, the former highway authorities would only own the zone of ordinary use, and nothing in the airspace above it or the soil below it could ever be transferred, either under section 265(1)(a) or under article 2(1)(a).
But local highway authorities may also acquire, and the Councils certainly have acquired, property rights in relation to highways by other means.
They include compulsory purchase and acquisition by private treaty, which is completed in both cases by conveyance or transfer.
Furthermore, local authorities may come to have property rights in relation to highway land for purposes other than highways purposes, and may acquire such rights, again, by compulsory or voluntary purchase, by means of conveyance or transfer.
In the generality of such cases (save, that is, where there is a reservation of part of the vertical plane in the conveyance, or where the transferor does not own the whole of it) the local authority will acquire ownership of the whole of the vertical plane, not just the zone of ordinary use.
Local authorities may also come to have ownership rights in relation to highways by being or becoming adjoining owners: see below.
Furthermore, the ownership of airspace above, and subsoil below, the zone of ordinary use relating to a highway may, particularly in Central London, be of substantial commercial value.
Buildings are commonly constructed across a highway in the airspace above that part needed for its use as such.
The ground beneath highways is often intensively used for other purposes, such as underground railway stations, public lavatories and even, under the approach to Blackfriars bridge, a shooting gallery.
Similarly, ownership of the airspace and subsoil, even where not yet used for buildings or other structures, may have substantial development value.
These complexities are well illustrated in the admirable award of the arbitrator Mr John Male QC, and in the supporting materials.
There is nothing new about disputes concerning highway ownership arising from commercial motivation.
The question in the very earliest case, Coverdale v Charlton, was whether the highway authority had a sufficient proprietary right in the surface of the highway to let it for pasturage, sufficient to enable the plaintiff as lessee to bring proceedings for interference with it.
It was sufficient for the courts affirmative conclusion that the highway authority did own the surface of the highway, so that the vertical plane issue in the present case did not arise.
TfLs case, which was broadly accepted both by the arbitrator Mr John Male and, on the first appeal, by Mann J, may be summarised in this way.
The purpose of the Transfer Order, as part of a scheme under which TfL replaced the Councils as highway authority in relation to GLA roads was, at least in relation to property rights, to place TfL squarely in the shoes of those Councils.
Accordingly, whatever part of the vertical plane was owned by the Councils on the operative date, transferred under article 2(1)(a) to TfL.
From the generality of this conclusion the arbitrator made this exception.
Where particular layers or slices of subsoil and/or airspace (for example, certain structures) may have received or acquired a separate identity by the operative date, such that they could not properly be called parts of the highway, ownership in those slices would not pass to TfL.
This qualification is recorded in paragraph 265.2(1)(c) of his award.
On appeal, Mann J recorded a more significant concession made by Mr Morshead QC on behalf of TfL, namely that its claim related to land acquired for or appropriated to highway purposes: see para 56 of his judgment.
At common law (and subject to any statutory vesting) the owner of land adjoining a highway is taken to be the owner of the subsoil beneath it and the airspace above it ad medium filum ie as far as the centre line of the highway.
If the same person owns the adjoining land on both sides of the highway, then prima facie that person owns the whole of the vertical plane defined by the highway, outside the zone of ordinary use.
As the judge explained, the specific purpose of TfLs concession, quoted above, was to renounce any claim to a transfer of parts of the vertical plane above and below a GLA road where the Councils ownership of it derived from its status as the owner of adjoining land.
The Councils case, which was broadly accepted by the Court of Appeal, may be summarised as follows.
The purpose of the Transfer Order, like the purpose of all provisions for statutory vesting of property in highway authorities, was to vest in TfL only those ownership rights in the vertical plane of the highway which were necessary to enable it to perform its functions as highway authority.
Thus the Baird principle applied to article 2 just as much as it did to statutory vesting under section 263 and to transfer of property relating to trunk roads under section 265.
That was apparent from the fact that in all those instances, the drafter defined the property transferred as the highway, which had by the time of the Transfer Order come to have a clear and consistent meaning, limited to the zone of ordinary use.
Further, any more generous interpretation of article 2(1)(a) would expropriate from the Councils valuable property rights, particularly in Central London, without compensation to their ratepayers.
Accordingly, article 2(1)(a) transfers as the highway only the zone of ordinary use, leaving the Councils as continuing owners of anything else which they owned on the operative date within the vertical plane.
The question really boils down to this: does the Baird principle apply to article 2? In respectful disagreement with the Court of Appeal, I do not regard article 2 or, for that matter, section 265, as governed or constrained by the Baird principle.
My reasons follow.
In my judgment article 2(1)(a) transfers to TfL ownership of all that part of the vertical plane relating to a GLA road vested in the relevant council on the operative date, but only to the extent that ownership was then vested in the council in its capacity as former highway authority.
That is, in my view, the true meaning of the phrase the highway, in so far as it is vested in the former highway authority.
It follows that: i) rights held by the Councils in the vertical plane of a highway as adjoining owner, for purposes other than highway purposes, do not pass under article 2(1)(a).
This is because they are not held by the Council in its capacity as highway authority. ii) rights originally acquired for purposes other than highway purposes, or appropriated to those other purposes by the operative date, do not pass under article 2(1)(a).
This is so whether or not some non highway structure has by then been constructed.
If acquisition or appropriation for non highway purposes has occurred by the operative date, it matters not that the relevant purpose has yet to be fulfilled, so that the relevant part of the vertical plane remains undeveloped. iii) rights originally acquired for highway purposes in the vertical plane, for example by conveyance on compulsory acquisition for highway purposes, do pass under article 2(1)(a), even if they extend beyond the zone of ordinary use, provided that they have not, by the operative date, been appropriated to some non highway use outside the zone of ordinary use. iv) All these consequences, and in particular the first, flow from the true construction of article 2, rather than merely by way of TfLs concession as recorded by Mann J.
It may be that sub paragraph (ii) of the above summary differs a little from the reasoning of the arbitrator.
This is because, whereas he regarded a non highway structure actually built in the vertical plane (like an over flying building of underground public lavatory) as falling outside the definition of highway for all purposes, he did not (at least expressly) also regard the acquisition or appropriation of part of the vertical plane for non highway purposes as sufficient on its own to take that part, even if undeveloped, out of the property transferred under article 2(1)(a).
Meaning of highway
The Court of Appeal concluded that highway as used in article 2 and section 265 had a clear common law meaning, limited in the vertical plane to the zone of ordinary use.
I respectfully disagree.
The word highway is not a defined term, either in the 1980 Act, in the Transfer Order, or in the GLA Act.
There is a limited explanation, in section 328 of the 1980 Act that: In this Act, except where the context otherwise requires, highway means the whole or a part of a highway other than a ferry or waterway.
This is largely circular so far as concerns the core meaning of highway and, in any event, subject to context.
It does not follow that the interpreter is therefore required to find some uniform meaning of the word highway wherever it is used, either in the relevant legislation or, as the Court of Appeal thought, at common law.
There is in my view no single meaning of highway at common law.
The word is sometime used as a reference to its physical elements.
Sometimes it is used as a label for the incorporeal rights of the public in relation to the locus in quo.
Sometimes, as here, it is used as the label for a species of real property.
When used within a statutory formula, as here, the word necessarily takes its meaning from the context in which it is used.
In agreement with counsel and with the Court of Appeal, I do consider that the meaning of article 2 is to be found by an examination of the meaning of the almost identically worded section 265.
This is not merely because of the linguistic similarity between those two provisions, but because the whole of the structure for the transfer of property and liabilities in the Transfer Order is closely modelled on the pre existing structure of the provisions in section 265 relating to trunk roads.
It is tempting but, in my view, wrong to assume that, where sections 263 and 265 both refer to highway as a label for real property rights which are to be vested in a highway authority, the word highway must therefore have precisely the same meaning in both sections.
This is not merely because the word appears as part of two quite differently worded provisions.
Rather, it is because, although now lying almost side by side in a consolidating statute, the two sections have completely different ancestry, and serve two very different purposes.
As already noted, section 263 takes away from private ownership only those rights in the vertical plane of the highway which are necessary to enable the highway authority to perform its statutory functions of operation, maintenance and repair.
By contrast, section 265 merely transfers rights in the vertical plane already owned by one public authority to a successor public authority, so that the successor can stand in the shoes of its predecessor so far as ownership is concerned.
This is, in particular, apparent from the way in which the Bill which became the Trunk Roads Act 1936 was described to Parliament by the then Minister for Transport at its second reading.
Speaking of clause 7, he said: The basis for the transfer is, as laid down in clause 7, that the Minister should take over the road and all properties and liabilities attaching to it In the House of Lords the Earl of Erne, speaking for the Government,
described the objectives of the Bill as follows: The principle on which the Bill is based is to make a clean
transfer of responsibility
As already explained, section 7 of the Trunk Roads Act 1936 is the original progenitor of what is now section 265, having been significantly re worded in 1959 as section 228 of the Highways Act 1959, without any apparent intention thereby to effect any change of substance in its meaning.
There is no reason why the Baird principle should apply so as to restrict the nature or extent of property being transferred between two public highway authorities, one of which is stepping into the shoes of the other.
The only limitation which does need to be imposed is one which restricts the rights transferred to those enjoyed by the former highway authority in its capacity as such.
If the former authority enjoys rights in the vertical plane of the highway in some other capacity, such as adjoining owner, or for other public purposes, there is no sensible reason why those rights should be transferred to its successor as highway authority, merely because of the happenstance that they were vested in the former authority on the operative date.
Full effect to that qualification upon the extent of the rights transferred is given if the words in section 265(1)(a) in so far as, immediately before the operative date, it was vested in the former highway authority are taken as meaning vested in the former highway authority in its capacity as such.
When this way of interpreting section 265(1)(a), and the similarly worded article 2(1)(a), was suggested by the court to Mr Morshead for TfL, he acknowledged, upon reflection although not by way of concession, that this might well be correct.
By contrast, the respondent Councils case, that highway in section 265 and article 2 can never mean more than the zone of ordinary use, makes the words which immediately follow, quoted above, redundant.
A highway authority always has vested in it the zone of ordinary use, because of section 263, so the qualification beginning with the words in so far as then becomes meaningless.
Multi layering
Both the arbitrator and Mann J were powerfully affected by a perception of the unattractive consequences of the Councils construction, under what may be labelled as multi layering of the vertical plane.
Where a local highway authority had acquired land by compulsory purchase (or private treaty) for the purpose of building a road, and thereby had the whole of the vertical plane conveyed or transferred to it, the effect of the Councils construction of section 265 and article 2 would be, for the first time, to split that vertical plane between two successive highway authorities, one owning the top slice and the bottom slice, and the other owning the middle slice constituted by the zone of ordinary use.
As the arbitrator put it, at para 104: With all due respect to the Councils, I cannot see what rational purpose is served by there being two public bodies owning different layers of what was formerly owned by one single public body.
I agree.
The Court of Appeal acknowledged that this was a consequence of its interpretation but noted that multi layering of the vertical plane was already endemic within Central London, and that it was an insufficient factor to overcome what it regarded as the plain meaning of the word highway.
In my view, where the transposition of the settled meaning of a word from one section to another section of a complex consolidating statute produces an irrational result, that is a powerful reason for treating the word as having different meanings in those different contexts.
Furthermore, although article 2 only has effect in London, section 265 has effect in urban and rural areas alike.
It is of course true that some layering of the vertical plane is inevitable in relation to highways, both in rural and urban areas.
For example, it occurs whenever there is automatic vesting under section 263.
But in such a case the layering arises between a public authority on the one hand and private owners on the other, for reasons which are not irrational.
Equally, and particularly in the modern urban environment, there may be layering of the vertical plane between different public authorities, such as those responsible for highways, sewers and underground railways.
Again, this is for reasons which have a rational purpose.
By contrast, the irrationality identified by the arbitrator is that arising from two different highway authorities owning parts of the vertical plane in the same highway.
To that I would add that, on the Councils case, by virtue of the transfer of highway functions from one to the other, the former authority, which held rights in the vertical plane only as highway authority, continues to enjoy those rights while it has no further statutory responsibilities to discharge in its capacity as such.
It is difficult to identify any sensible purpose served by such an outcome.
I acknowledge also that my interpretation of article 2(1)(a), which limits the rights transferred to those transferred by the former highway authority in its capacity as such, will also lead to layering of the vertical plane in some cases where it did not previously exist.
This will occur, for example, where the former authority is an adjoining owner (with rights ad medium filum) or where the former authority has rights in part of the vertical plane for other statutory purposes, such as sewerage or the operation of underground railways.
But again, there is nothing irrational about layering of that kind.
Section 266A
The Court of Appeal was significantly influenced in its reasoning by a perception of the difficulties which might flow from TfLs interpretation of article 2, in conjunction with section 266A of the Highways Act 1980.
Mr Elvin QC for the respondent Councils pressed the same point upon us in his own excellent and succinct submissions.
Section 14B of the 1980 Act empowers the Mayor of London to direct that a highway or proposed highway shall become or cease to be a GLA road.
Section 266A provides for transfer of property and liabilities upon such an event.
It contains provisions which broadly reflect article 2(1)(b) and (3) of the Transfer Order, for the transfer of property including land, but contains no equivalent to article 2(1)(a) providing expressly for the transfer of the highway itself.
Mr Elvin submits that this must mean that in such a case, rights in the highway itself are transferred only under section 263, subject of course to the Baird principle.
Thus, if TfLs interpretation of article 2(1)(a) is correct, TfL would receive more of the vertical plane upon the original designation of a GLA road under the Designation Order than it would have to give back under section 266A if that designation was subsequently revoked under section 14B, an irrational outcome which cannot have been intended.
I agree that this would be a surprising and probably unintended outcome, but not that it is the consequence of the omission of an express reference to the highway in section 266A.
In my judgment, a preferable view may be that when a highway becomes or ceases to be a GLA road by virtue of an order made under section 14B, rights in the nature of real property in the vertical plane of the highway pass under section 266A(4)(a) as land.
It is preferable to Mr Elvins construction because a conclusion that rights in the highway itself only pass by virtue of section 263 would introduce the Baird principle into a context (transfer between successive public highway authorities) to which it has no sensible application.
I accept that this requires the word land to be given a different, larger, meaning in section 266A than it has in article 2, but this is simply because its narrower meaning in article 2 is necessitated by the separate express treatment of rights in the highway as real property; ie as land.
It is another example of identical words having different meanings as necessitated by their different contexts.
I need express no final view on the interpretation of section 266A because it is not directly in issue in this case.
Its later date means that it cannot be an aid to the interpretation of section 265, which was the model chosen for article 2, rather than the differently framed section 266A.
The Baylis case
Mr Elvin sought also to derive assistance from dicta of Mr Lewison QC (as he then was) in Secretary of State v Baylis (Gloucester) Ltd (2000) 80 P & CR 324, in a judgment with which the Court of Appeal agreed.
The issue in the Baylis case did relate to what had by the time of the trial become a trunk road, but it had nothing to do with the extent of rights in the vertical plane of a highway transferred between highway authorities under what is now section 265.
The dispute was about whether the strip of land in dispute, which adjoined the physical surface of the road, had ever been dedicated to the public as part of a highway, and that turned upon the true construction of a written agreement between the then owner and the county council.
The adjacent highway (for which the dedicated strip was to facilitate an improvement) had later been designated a trunk road, but that had no consequence for the determination of the dispute.
In an otherwise unimpeachable summary of the effect of land becoming part of a highway, Mr Lewison said: The effect of trunking a highway is that the highway vests in the Minister (now the Secretary of State).
The extent of such vesting is such part of the land as is necessary for the highway authority to perform its statutory functions.
It has been described as the top two spits.
It did not matter in that case whether the Secretary of State received the top two spits (or as I would prefer to call it the zone of ordinary use) or the whole of the vertical plane.
Furthermore the former highway authority had never obtained more than the zone of ordinary use, because its title depended upon automatic vesting under what is now section 263, following dedication.
I therefore respectfully disagree with that small (and obiter) part of Mr Lewisons succinct summary of the relevant highways law, for the detailed reasons which I have given.
Expropriation
A final reason why the Court of Appeal was persuaded that transfers under article 2 should be subject to the Baird principle of necessity was that, otherwise, the residents and ratepayers of the respondent Councils would be deprived, without compensation, of more property than was necessary to fulfil the purpose of constituting TfL as the relevant highway authority.
I have not been persuaded by this analogy.
In every case of a transfer between highway authorities, whether under section 265 or article 2, the former authority is being relieved of its responsibilities for operation, maintenance and repair of the relevant highway, and all associated liabilities (subject to certain exceptions).
The transfer of property held by the former highway authority in its capacity as such is simply the quid pro quo for that relief from responsibility.
The ratepayers get the full financial benefit of that relief from responsibility.
There may be cases where the value of the transferred ownership of the vertical plane exceeds the financial burden of the responsibilities, eg where the vertical plane outside the zone of ordinary use has development value.
That may be part of the reason for this long and costly litigation.
But usually it will have no such excess value.
The meaning of article 2 and section 265 cannot vary as between one highway and another by reference to such infinitely variable economic comparisons.
Burden of Proof
While acknowledging that article 2(1)(a) of the Transfer Order might best be interpreted as subject to the limitation that rights in the highway should have been vested in the former highway authority in its capacity as such, Mr Morshead for TfL submitted that there should, nonetheless, be a strong presumption that all rights in the vertical plane as were in fact vested in the former highway authority on the operative date were vested in it in that capacity.
It would be, he said, for the former authority (here the respondent Councils) to prove otherwise, the burden being firmly upon them.
I can see no good reason why any such presumption or burden of proof should be identified as flowing from the true interpretation of article 2.
The papers lodged with the court on this appeal demonstrate that the resolution of these vertical plane issues in the context of highways in Central London, where they cannot be agreed, is an intensely fact sensitive and complex task.
As already explained, the Councils will have acquired rights in the vertical plane in a variety of different ways, and it will be necessary to analyse both the extent of the rights acquired, and the capacity in which the Council acquired those rights.
Sometimes the GLA road has a non GLA highway running over or under it.
There are frequently buildings and other structures encroaching upon the vertical plane of the highway, outside the zone of ordinary use.
The arbitrator should not be saddled with a presumption as to the outcome of that difficult factual analysis, one way or the other.
The Lateral Plane
It was mentioned by counsel, and in the statement of agreed facts and issues, that the resolution of the dispute in this appeal would also have consequences in the lateral plane, rather than only the vertical plane, of land defined by a highway.
That may be so, but all the argument before this court has been directed to the vertical plane.
Nothing in this judgment should be taken as implying any view about lateral plane issues, which were not explored.
Conclusion
For the above reasons, I consider that this appeal should be allowed.
The interpretation which I conceive to be correct differs in some small respects from that adopted by the arbitrator and indeed by Mann J, in dismissing the first appeal.
Furthermore the questions as originally framed in the preliminary issues determined by the arbitrator have since narrowed.
It will therefore be necessary to receive submissions about the precise form of order which this court should now make in relation to the preliminary issues which are the subject of this appeal.

Output:
This appeal concerns the effect of the GLA Roads and Side Roads (Transfer of Property etc) Order 2000 (SI 2000/1552) (the Transfer Order) and the GLA Roads Designation Order 2000 (SI 2000/1117) (the Designation Order).
By combined operation of those Orders, responsibility for Greater London Authority (GLA) roads was transferred from individual London borough councils, including the Respondents (the Councils) as local highway authorities, to the Appellant (TfL).
The provision at the heart of this appeal is article 2(1)(a) of the Transfer Order, which provides for the transfer of the highway, in so far as it is vested in the former highway authority.
TfL and the Councils convened a statutory arbitration before Mr John Males QC.
The purpose was to determine exactly what specified property and liabilities transferred to TfL in relation to each highway.
The dispute between the parties is whether the automatic transfer of the highway under article 2(1)(a) of the Transfer Order carried with it: (i) only the zone of ordinary use (i.e. the road surface and the airspace and subsoil necessary for the operation, maintenance and repair of the road) or (ii) the entire vertical plane (i.e. all the airspace above and the subsoil below the surface of the road), to the extent that the relevant council already owned it prior to the transfer date.
In the arbitration and at each stage on appeal, the Councils argued the transfer was limited to the former, while TfL argued for the latter, wider approach.
The arbitrator broadly agreed with TfLs case.
The caveat was that particular layers or slices of subsoil and/or airspace that had acquired a separate identity by the transfer date could not be treated as parts of the highway and so did not pass to TfL.
On appeal to the High Court, Mr Justice Mann agreed with the arbitrator, recording a concession by counsel for TfL that its claim related to land acquired for or appropriated to highway purposes.
However, on further appeal, the Court of Appeal adopted a narrower position.
It considered that the word highway in article 2(1)(a) of the Transfer Order must have been intended to carry the same meaning as it had at common law, and in relation to section 263 of the Highways Act 1980 (the 1980 Act).
Thus, the Court of Appeal held that only the zone of ordinary use had transferred to TfL.
The Supreme Court unanimously allows the appeal.
Lord Briggs gives the sole judgment of the Court.
The word highway has no single meaning in the law [6].
The default land law position, that the conveyance of freehold land automatically involves the transfer of the entire vertical plane, was not
followed in successive statutory provisions dealing with automatic vesting of highway interests formerly in private ownership, as seen in the decision in Tunbridge Wells Corpn v Baird [1896] AC 434 (HL) (the Baird principle) [7 8].
The Baird principle provides that such a transfer was limited to the road surface, the subsoil immediately beneath it and airspace sufficient to enable use and enjoyment by the public and maintenance by the highway authority [9].
The limits set by the Baird principle reflected concerns about expropriation of private property without compensation resulting from statutory vesting [11].
It was, rightly, common ground that the Baird principle applies to section 263 of the 1980 Act, replicating section 226 of the Highways Act 1959 (the 1959 Act) [12].
However, section 265 of the 1980 Act and its predecessors make provision for the transfer of property and liabilities, as between successive highway authorities, of highways designated as trunk roads [13].
The first major property transfer scheme was undertaken in relation to newly designated trunk roads by section 7 of the Trunk Roads Act 1936 (the 1936 Act) [15].
Despite differences in language, the substance of section 228 of the 1956 Act and section 265 of the 1980 are materially the same as section 7 of the 1936 Act [16 19].
The extent of transfer of highway rights is complicated by the fact that local highway authorities often acquire property rights in relation to highways by means other than automatic vesting under section 263, such as compulsory purchase and acquisition by private treaty and, at times, for non highway purposes [21].
Ownership of airspace above and subsoil below the zone of ordinary use may also be of substantial commercial or development value, particularly in urban areas like Central London [22].
Disagreeing with the Court of Appeal, the Supreme Court decides that the Baird principle does not apply to article 2 of the Transfer Order or to section 265 of the 1980 Act, upon which article 2 was modelled [28].
The words [t]he highway, in so far as it is vested in the former highway authority in article 2, properly construed, mean only that part of the vertical plane relating to a GLA road which was vested in the relevant council on the operative date, in its capacity as former highway authority, is transferred [29].
The Supreme Court disagrees with the Court of Appeals reasoning that the word highway, used in article 2 and section 265, has a clear common law meaning it is not a defined term and its meaning in this context is to be found through the almost identical wording of section 265 on trunk roads [31 33].
Given the different ancestry of, and purposes served by, section 263 and section 265 of the 1980 Act, the word highway used in both provisions cannot be given the same meaning [34 36].
The phrase beginning with in so far as in section 265(1)(a) of the 1980 Act, and in article 2, imports the ownership capacity limitation [37 39].
The Courts approach, like that of the arbitrator, largely avoids irrational types of multi layering on the vertical plane in the sense of different highway authorities owning parts of the vertical plane in the same highway [40 43].
Further, expropriation concerns are not well founded because, generally, the transfer of property from one highway authority to another is simply the quid pro quo for relief from responsibility for operation and maintenance [48].
Lastly, there is no presumption or burden of proof as to the extent of highway rights transferred [49 50].
This decision does not resolve any issues as to the ownership of the lateral plane of a highway [51].