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.

R v HAMADI

Last Updated: 12:01am GMT 03/01/2008

Court of Appeal (Criminal Division)
Moore-Bick LJ, Wilkie J and the Recorder of Chester
December 18, 2007

Admissibility – Consent – Criminal evidence – Cross-examination – Prosecution evidence – Prosecution witnesses – Rape – Sentence length – s. 41 Youth Justice and Criminal Evidence Act 1999 – s. 41(5) Youth Justice and Criminal Evidence Act 1999 – s. 41(3)(c)(i) Youth Justice and Criminal Evidence Act 1999 – s. 41(3)(a) Youth Justice and Criminal Evidence Act 1999 – Art. 6 European Convention on Human Rights 1950

FACTS

The appellant (H) appealed against a conviction for rape and the consequent sentence of imprisonment for public protection with a minimum term of five years. The victim (V) had been on a night out and was separated from her boyfriend (B) following an argument. On her way home, H drew alongside her in his truck and offered her a lift, which she accepted. V alleged that once inside the truck, H drove to some wasteland and proceeded to rape her. H accepted that he sometimes drove around late at night seeking sexual activity, but denied that he had raped V. He asserted that V had initiated the sexual activity and that she had become angry when he refused to participate in certain activities. The accounts provided by V and H differed greatly, providing the jury with the sole issue of whom to believe.

The judge acceded to H’s application to adduce evidence of aspects of V’s previous sexual behaviour under the Youth Justice and Criminal Evidence Act 1999 s. 41. However, the judge refused to admit evidence from a witness (W) about a sexual relationship he had had with V approximately two months before the alleged rape when V was with B. V had stated during cross-examination that she had never had relations with other people whilst seeing B. The judge ruled that W’s evidence did not have any probative value.

H submitted that

  1. the judge erred in excluding W’s evidence to the effect that V did have sexual relations with other men whilst she was seeing B and that, as a consequence, his conviction was unsafe. He argued that V’s assertion in cross-examination fell within s. 41(5) of the Act as evidence adduced by the prosecution, so that W’s evidence should have been admitted to prevent the jury being misled as to V’s sexual inclinations. Alternatively, H argued that events described in W’s evidence were similar to that which occurred in the instant case so that the latter ought to have been admitted under s. 41(3)(c)(i) of the Act;
  2. the judge was wrong to conclude that B posed a significant risk of serious harm to the public, and argued that a notional determinate sentence of 10 years was manifestly excessive.

ISSUE

Whether evidence provided by a prosecution witness under cross-examination by defence counsel was not evidence to which the Youth Justice and Criminal Evidence Act 1999 s. 41 was aimed when given its natural meaning, and could not be extended to cover such evidence.

HELD (appeal allowed in part)

(1) The test of admissibility to be applied under s. 41(3)(a) of the Act was whether the evidence sought to be adduced was so relevant to the issue of consent that to exclude it would endanger the fairness of the trial required by the European Convention on Human Rights 1950 Art. 6.

The wider principle was that the importance of protecting complainants from indignity and humiliating questions to which s. 41 was directed had to give way to the right to a fair trial, R v A (Complainant’s Sexual History) [2001] UKHL 25, [2002] 1 AC 45 considered. However, in R v A, the application was made by the defendant in relation to previous sexual intercourse he had had with the complainant. Allegations of a previous consensual relationship with an accused raised considerations of a different nature to that of a previous relationship with a third party, R v White (Andre Barrington) [2004] EWCA Crim 946, (2004) 148 SJLB 300 considered.

It was clear that V’s evidence that she was faithful to B at all times in their relationship amounted to evidence about her sexual behaviour, but it was questionable as to whether it fell within s. 41(5) of the Act as asserted by H. In the context of the instant case, “evidence adduced by the prosecution” within s. 41(5) of the Act, given its natural meaning, meant evidence placed before the jury by a prosecution witness as part of the evidence-in-chief and of other witnesses in the course of cross-examination by the prosecution. It did not naturally extend to evidence given by prosecution witnesses under cross-examination by the defence. Therefore, it could not be extended to cover all evidence given by prosecution witnesses as contended for by H. Further, the similarities identified by H could not reasonably be explained as a coincidence having regard to the background to the case, and the evidence was not truly probative in relation to the issue of consent.

(2) Before his conviction, H was a man of good character with a stable family background and had not demonstrated any pattern of offending. However a pre-sentence report concluded that H remained at a high risk of repeating similar offences in the light of H’s own description of his nocturnal activities. It was inappropriate to interfere with the conclusions of a sentencer where the sentencer accurately identified the relevant principles and applied his mind to the relevant facts. However, the aggravating features identified by the judge were not so significant as to warrant the minimum term imposed. Accordingly, the minimum term would be reduced to four years’ imprisonment.

Edward Fitzgerald QC and Paul Taylor (instructed by Michael Henderson & Co) for the appellant. Bruce Houlder QC and Timothy Gittins (instructed by Crown Prosecution Service) for the respondent.