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.

No privacy for male breasts

Posted in Privacy, Sexual Offences, Times Law Report by mrkooenglish on June 21, 2008

From The TimesJune 18, 2008

No privacy for male breasts
Regina v Bassett in the Court of Appeal, Criminal Division
Court of Appeal, Criminal Division

Published June 18, 200[8]

Regina v Bassett

The reference to “breasts” in section 68(1)(a) of the Sexual Offences Act 2003, defining voyeurism, did not include male breasts.

The Court of Appeal, Criminal Division (Lord Justice Hughes, Mr Justice Treacy and Sir Peter Cresswell) so held on May 14, 2008, in allowing an appeal by Kevin Bassett against his conviction on April 23, 2007, at St Albans Crown Court (Judge Plumstead and a jury) of one count of voyeurism of a man in a swimming pool changing room, contrary to section 67(1) of the 2003 Act, for which he was given an 18-month community supervision order.

LORD JUSTICE HUGHES said that the principal question was whether the man watched had been doing a private act in a place which in the circumstances could reasonably be expected to provide privacy and whether since he was bare-chested and wearing trunks, breasts were exposed within the meaning of the statutory definition.

Casual observation by changing-room users created no offence of voyeurism, even if they gained sexual gratification from what they saw.

A man need not expect privacy of his upper torso. The statute only referred to female breasts.

Whether complainant can choose to consent to sex

Posted in Sexual Offences, Times Law Report by mrkooenglish on June 9, 2008

From The TimesJune 9, 2008

Whether complainant can choose to consent to sex
Court of Appeal, Criminal Division

Published June 9, 2005

Regina v C (Mental disorder: Sexual activity)

Before Lord Phillips of Worth Matravers, Lord Chief Justice, Mr Justice Bean and Mr Justice Wilkie

Judgment May 23, 2008

The effect of a mental disorder had to be severe before it would have the effect that a person was unable to choose whether to submit to sexual activity. If a complainant consented to sexual activity against her inclination because she was frightened of the defendant, even if her fear was irrational and caused by her mental disorder, it did not follow that she lacked the capacity to choose whether to agree to sexual activity.

The Court of Appeal, Criminal Division, so held in allowing an appeal by C against his conviction at Croydon Crown Court (Judge Stow and a jury) on March 22, 2007 for sexual activity with a person with a mental disorder impeding choice, contrary to section 30 of the Sexual Offences Act 2003. The conviction was quashed and a retrial ordered.

Mr Richard Wormald for the appellant; Miss Johannah Cutts, QC, for the Crown.

THE LORD CHIEF JUSTICE, giving the judgment of the court, said that the judge’s summing up suggested that an offence under section 30 would be committed if the complainant felt unable to refuse the sexual advances of the defendant because of an irrational fear arising out of her mental disorder and the defendant knew or could reasonably be expected to know that that was the position.

Such an approach would have been appropriate had section 30(1) not been qualified by section 30(2). Section 30(2) provided, however, a comprehensive definition of the circumstances in which a complainant would be unable to refuse to submit to sexual touching.

Such a lack of capacity not merely involved the complainant being unable to choose to refuse to submit to sexual touching; it involved her being unable to choose to agree to such touching.

The test of incapacity to consent to sexual activity should be the same under criminal and civil law. There was little, if anything, between the test of capacity to choose in section 30(2) and the common law test of capacity to consent.

The words “or for any other reason” in section 30(2) set a similarly high hurdle for the prosecution to those that went before them.

The effect of a mental disorder must necessarily be severe before it would have the effect that a person was unable to choose whether to submit to sexual activity.

If the complainant consented to sexual activity against her inclination because she was frightened of the defendant, even if her fear was irrational and caused by her mental disorder, it did not follow that she lacked the capacity to choose whether to agree to sexual activity.

It did not follow from that irrational fear that the complainant would not have been capable of choosing whether or not to agree to sexual activity in circumstances which did not give rise to that fear.

Irrational fear that prevented the exercise of choice could not be equated with lack of capacity to choose. A lack of capacity to choose to agree to sexual activity could not be person-specific or situation-specific.

The judge also appeared to have been persuaded that if the complainant felt unable to say no because of irrational fear, that was capable of amounting to an inability to communicate her choice within section 30(2)(b). However, section 30(2)(b) was designed to address those whose mental disorders impaired their ability to communicate. There was no evidence that the complainant was unable to communicate any choice that she had made.

The directions that the judge gave to the jury in relation to the ingredients of the offence were not adequate.

The judge should have reminded the jury of the medical evidence as to the complainant’s mental disorder and then directed them that if that had left her so distressed or confused that she was not capable of making a coherent decision to agree to or refuse a request for sexual activity, whoever might make the request, it would be open to them to conclude that she lacked the capacity to choose.

Solicitors: Hallinan Blackburn Gittings & Nott, Westminster; Crown Prosecution Service, Croydon.