West Law Report

G v R & ANR

Last Updated: 5:49PM BST 25/06/2008
House of Lords Lord Hoffmann, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Carswell, Lord Mance June 16, 2008
Basis of plea – Child sex offences – Criminal charges – Justification – Presumption of innocence – Proportionality – Rape – Right to fair trial – Right to respect for private and family life – Strict liability – Young offenders – Conduct falling within ambit of s. 5 and s. 13 Sexual Offences Act 2003 – Lawfulness of prosecutor’s decision to prosecute under s. 5 – Art. 6(1) European Convention on Human Rights 1950 – Art. 6(2) European Convention on Human Rights 1950 – Art. 8 European Convention on Human Rights 1950 – s. 13 Sexual Offences Act 2003 – s. 5 Sexual Offences Act 2003

FACTS

The appellant (G) appealed against his conviction for rape of a child under the age of 13 contrary to the Sexual Offences Act 2003 s. 5. G was 15 at the time of the offence, and the complainant was 12. She had originally complained that he had intercourse with her against her will. G was charged with the s. 5 offence. He offered to plead guilty on the basis that the complainant willingly agreed to have intercourse with him and that he believed she was 15 because she had told him so. The prosecutor was at first unwilling to accept that basis of plea, but then the complainant changed her account of the incident and decided she was content with G’s basis of plea. The prosecutor was invited to drop the case altogether but declined to do so. G appealed against his conviction and sentence, but only succeeded with respect to the sentence. The Court of Appeal certified two questions as being of general public importance, namely (i) whether a criminal offence of strict liability could violate the European Convention on Human Rights 1950 art. 6(1) or art. 6(2); (ii) whether it was compatible with a child’s rights under art. 8 to convict him of rape contrary to s. 5 in circumstances where the agreed basis of plea established that his offence fell properly within the ambit of s. 13 of the Act. G submitted that (1) the offence created by s. 5, interpreted as one of strict liability, was incompatible with art. 6(2), which provided that everyone charged with a criminal offence was to be presumed innocent until proved guilty according to the law. The European Court of Human Rights in Salabiaku v France (A/141-A) [1991] 13 EHRR 379 had stated that art. 6(2) required states to confine “within reasonable limits” presumptions of fact or law in criminal proceedings. The creation of strict criminal liability would always engage a consideration of compatibility with the presumption of innocence; (2) his right to respect for his private life had been violated because the prosecutor did not drop the charge under s. 5 and substitute one under s. 13. His conviction and sentencing for the s. 5 offence involved both a stigma and practical consequences which were disproportionate.

ISSUES

(1) Whether the offence created by s.5, interpreted as one of strict liability, was incompatible with art. 6(2).

(2) Whether G’s right to respect for his private life had been violated.

HELD (appeal dismissed) (Lords Hope and Carswell dissenting on the art. 8 issue)

(1) G’s argument read far too much into the wording of art. 6(2) and the court’s reasoning in Salabiaku. Article 6 was concerned with the procedural fairness of the system for the administration of justice in the contracting states, not with the substantive content of domestic law, Matthews v Ministry of Defence [2003] UKHL 4, [2003] 1 AC 1163 and R v G (2002) EWCA Crim 1992, [2003] 3 All ER 206 applied. When art. 6(2) referred to “innocent” and “guilty” it was dealing with the burden of proof regarding the elements of the offence and any defence to it; it was not dealing with what those elements were or what defences ought to be available. Salabiaku was not inconsistent with that analysis, Salabiaku considered. Section 5 was not incompatible with art. 6(2).

(2) It was compatible with a child’s rights under art. 8 to convict him of rape contrary to s. 5 in circumstances where the agreed basis of plea established that his offence fell properly within the ambit of s. 13. “Rape of a child under 13” still accurately described what G had done. Parliament had decided to use that description because children under 13 could not validly consent to sexual intercourse. G’s real complaint was that he had been convicted of an offence bearing the label “rape”. If that engaged G’s art. 8 rights at all, it was entirely justified. The state would have been open to criticism if it had not provided the complainant with adequate protection. It sought to do that by a clear rule that children under 13 were incapable of consenting to sexual activity, and treating penile penetration as a most serious form of such activity. That did not amount to a lack of respect for the private life of the penetrating male. Even if it did, it could not be an unjustified interference with that right to label the offence “rape”.

(3) (Per Lords Hope and Carswell) Where choices were left to the prosecutor they had to be exercised compatibly with the Convention rights. It was unlawful for the prosecutor to continue to prosecute G under s. 5 in view of his acceptance of the basis of G’s plea, namely that the complainant had consented to intercourse. As the offence fell properly within the ambit of s. 13, G’s conviction of rape under s. 5 was disproportionate and incompatible with his rights under art. 8.

Tim Owen QC and Rebecca Trowler (instructed by Alexander & Partners) for the appellant. David Perry QC and Melanie Cumberland (instructed by Crown Prosecution Service) for the respondent. Jeremy Johnson (instructed by Treasury Solicitor) for the intervener.