Judgments - R v G (Appellant) (On appeal from the Court of Appeal (Criminal Division))

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27.  This argument seems me to read far too much into the wording of article 6(2) and to the Court’s reasoning in Salabiaku. Article 6(2), like article 6(3), must be read in the context of article 6(1). The article as a whole is concerned essentially with procedural guarantees to ensure that there is a fair trial, not with the substantive elements of the offence with which the person has been charged. As has been said many times, article 6 does not guarantee any particular content of the individual’s civil rights. It is 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] 1 AC 1163, para 3, per Lord Bingham of Cornhill, paras 30-35 per Lord Hoffmann, para 142, per Lord Walker of Gestingthorpe; R (Kehoe) v Secretary of State for Work and Pensions [2005] UKHL 48; [2006] 1 AC 42, para 41. The approach which the article takes to the criminal law is the same. Close attention is paid to the requirements of a fair trial. But it is a matter for the contracting states to define the essential elements of the offence with which the person has been charged. So when article 6(2) uses the words “innocent” and “guilty” it is dealing with the burden of proof regarding the elements of the offence and any defences to it. It is not dealing with what those elements are or what defences to the offence ought to be available.

28.  The observations in paras 27-28 of Salabiaku are not inconsistent with this analysis. As the Court of Appeal noted in para 31 of its decision, that case was decided, in accordance with the practice of the Strasbourg court, on its own facts. The principles which it was seeking to enunciate are set out in rather general terms, which that court has not so far attempted to enlarge upon. But the key to a proper understanding of the passage as a whole is to be found in the first sentence of para 27. It contains a clear affirmation of the principle that the contracting states are free to apply the criminal law to any act, so long as it is not one which is carried out in the exercise of one of the rights protected under the Convention. Accordingly they are free to define the constituent elements of the offence that results from that act. So when the court said in the next sentence that the contracting states may “under certain conditions” penalise a simple or objective fact as such, irrespective of whether it results from criminal intent or negligence, it was reaffirming the same principle. As in the previous sentence, the certain conditions that are referred to indicate that objection could be taken if the offence was incompatible with other articles of the Convention. But they have no wider significance. If there is no such incompatibility, the definition of the constituents of the offence is a matter for domestic law.

29.  Salabiaku is not easy to construe, as my noble and learned friend Lord Hoffmann points out. But I do not agree with him that we should simply ignore it. Read in the way I have indicated, it continues to offer guidance about the extent of the guarantee that is afforded by article 6(2). Dyson LJ’s remarks in R v Gemmell [2003] 1 Cr App R, 343, 356, para 33 with which I too agree, are consistent with that guidance. The substantive content of the criminal law does not raise issues of fairness of the kind to which that article is directed.

30.  I would therefore respectfully endorse the conclusion which the Court of Appeal drew from the reasoning in Salabiaku. It said in para 33:

“An absolute offence may subject a defendant to conviction in circumstances where he has done nothing blameworthy. Prosecution for such an offence and the imposition of sanctions under it may well infringe articles of the Convention other than article 6. The legislation will not, however, render the trial under which it is enforced unfair, let alone infringe the presumption of innocence under article 6(2).”

It follows that I would not attach the significance to the decision in Hansen v Denmark that Mr Owen sought to attach to it. The offence in that case was one of strict liability. But, as the court noted, the burden of proof of all its elements was throughout on the prosecution. As it said, there was nothing to indicate that the courts in fulfilling their functions started from the assumption that the applicant was liable. This passage in its judgment is consistent with the view that article 6(2) does not proscribe offences of strict liability, so long as the prosecution bears the burden of proof of all the elements that constitute the offence.

31.  That requirement is plainly met in this case. So I would hold that section 5 of the 2003 Act is not incompatible with article 6(2) of the Convention and that the prosecutor’s act in prosecuting the appellant under that section was not unlawful in that respect.

Article 8

32.  Mr Owen’s alternative argument was that the appellant’s right to respect for his private life under article 8 was violated because the prosecutor did not drop the charge under section 5 and substitute one under section 13. He accepted that it was not a breach of article 8 for the appellant to have been charged under section 5 in the first place, as the information that was before the prosecutor at that stage was that the complainant had not consented to intercourse. His point was that, once it had become clear that she had changed her account of the incident, the prosecutor should have proceeded instead under section 13. As he did not do this, the judge should have indicated that for him to proceed under section 5 was incompatible with article 8, leaving it to the Crown to decide what alternative course it should take. He agreed that there had been no attempt to stay the proceedings before the appellant was sentenced, nor had it been argued that for the prosecutor to proceed under section 5 in view of the basis of the appellant’s plea was an abuse of process. But he submitted that the appellant was nevertheless entitled to a remedy under the 1998 Act.

33.  For the respondent, Mr Perry submitted that there was no breach of article 8 when the appellant was charged, as the complainer’s initial account was that the intercourse was not consensual. There were reasons for not being over-critical of the prosecutor’s decision to adhere to the charge under section 5 when the complainer changed her account of the incident. There was no suggestion that the conduct between the appellant and the complainant was part of an established relationship. On the contrary, even on her altered account, it had the hallmarks of opportunism. Parliament had given the sentencing judge the opportunity to select an appropriate sentence within a wide spectrum. The proceedings had to be seen as a whole. Any incompatibility with article 8(2) was removed by the Court of Appeal when it quashed the sentence of detention and replaced it with a conditional discharge. But he conceded, in view of the basis on which the appellant was prepared to plead guilty, that the prosecution should probably not have accepted it as a plea to rape under section 5. In R (S) v Director of Public Prosecutions [2006] EWHC 2231 (Admin), where a 15 year old defendant was accused of sexual intercourse with a 12 year old complainant, the prosecutor abandoned the charge under section 5 and substituted one under section 13 as it appeared that the conduct in question was consensual. This suggests that there is some lack of consistency about the approach that should be adopted in cases of this kind.

34.  Article 8(1) guarantees to everyone the right to respect for his private life, and a teenager has as much to respect for his private life as any other individual. It is unlawful for a prosecutor to act in a way which is inconsistent with a Convention right. So I cannot accept Lord Hoffmann’s proposition that the Convention rights have nothing to do with prosecutorial policy. How an offence is described and the range of sentences that apply to it are matters for the contracting state. But where choices are left to the prosecutor they must be exercised compatibly with the Convention rights. The questions then are whether the appellant’s continued prosecution for rape under section 5 was necessary in a democratic society for the protection of any of the interests referred to in article 8(2), and whether it was proportionate. Account must be taken in this assessment of the alternative courses that were open to the prosecutor, including proceeding under section 13 instead of section 5, as well as the sentencing options that are available to the court in the event of a conviction under either alternative and the labels which each of them would attract.

35.  The European Court has acknowledged the necessity in a democratic society for some degree of control to be exercised over homosexual conduct, especially to provide safeguards against the exploitation and corruption of those who are especially vulnerable because they are young: Dudgeon v United Kingdom (1981) 4 EHRR 149, paras 49, 62. It is obvious that the same point can be made about mutual heterosexual conduct between children. But Mr Owen did not suggest that there would have been a violation of article 8 if the appellant had been convicted and sentenced under section 13 of the 2003 Act. His point was that to impose a strict liability for rape under section 5 on a 15 year old child where the complainer consented to sexual intercourse, there being an alternative section under which he could more appropriately have been prosecuted for such conduct, was not necessary in a democratic society. The sanction was wholly disproportionate to any legitimate aim sought to be achieved. It was not removed by the Court of Appeal’s substitution of a conditional discharge.

36.  I would not go so far as to say that it was disproportionate for a child under 15 to be prosecuted for committing a sexual act with a child under 13 just because it was consensual. The offences which the 2003 Act has created are expressed in very broad terms. They recognise that the circumstances in which mutual sexual activity may take place between children of the same or the opposite sex, and the acts that they may perform on one another as fashions change, will inevitably vary greatly for case to case. But there is great force in the point that McLachlin J made in R v Hess; R v Nguyen [1990] 2 SCR 906 about the need for children to be protected. Their need to be protected against themselves is as obvious as is their need to be protected from each other. There is much to be said for the view that where acts are perpetrated on children under 13 by children of a similar age intervention of some kind is necessary for the protection of their physical and moral health. My noble and learned friend Baroness Hale of Richmond offers a unique insight into these issues, and I agree with all she says about the dangers of under age sexual activity. The fact that there was consent is to this extent simply irrelevant.

37.  But this case is about the choices that are available where the prosecutor is satisfied that the conduct was consensual or, as consent could not in law be given, was mutual. Moreover it is about the choices that ought to be made where the participants in sexual conduct which was mutual were both children. It is worth noting that Kathleen Marshall, Scotland’s Commissioner for Children and Young People, speaking at a conference on 15 May 2008, said that the Children’s Hearing system is a better way of dealing with consensual sex between underage young people than charging them with a criminal offence. She made it clear that sexual activity between young people under 16 should not be condoned or regarded as the acceptable norm. But she believed that a more effective intervention was likely to be secured if the response was changed from a criminal one to a welfare response through the Children’s Hearing system. Scotland was fortunate in having that unique system, she said, and it should use it.

38.  The Children’s Hearing system provided for in Chapters 2 and 3 of the Children (Scotland) Act 1995 is not available in England and Wales. So sexual activity between children of the kind described in this case cannot be dealt with outside the criminal law. I am not suggesting that it should be decriminalised here. That would be to condone it which, as McLachlin J’s observations about the risks to vulnerable young people so clearly indicate, would not be acceptable. But this still begs the question whether sexual crimes committed by children should be dealt with in the same way as sexual crimes committed by adults. There are grounds for thinking that the sanctions that can be imposed under section 13 for mutual sexual activity by a person under 18 with a child under 13 provide all that is needed by way of punishment that is proportionate to the offence. The message that this is an offence can be conveyed to children as well as adults very effectively by the use of these sanctions, as anyone who has exercised the responsibility of sentencing children in cases of that kind knows.

39.  Section 5, the rape of a child under 13, on the other hand is designed for a different and much more serious situation. The offence is one which only a male person can commit. It may be committed by a male person of any age, and he is liable on conviction to life imprisonment. The description of the offence as rape, and all the consequences that go with that description, are entirely appropriate where the act has been committed upon a child under 13 by a person over the age of 18. It may also be appropriate where the person who committed it was under that age. But the lower the age, the less appropriate it will be. The question in such a case, given the choice that is available, must be whether in all the circumstances to proceed under section 5 would be proportionate. The Court of Appeal said that the judge should have taken the view, having regard to the basis of the plea, that the offence in this case fell properly within the ambit of section 13 rather than section 5: para 51. I agree, but I would go further. I think that it must follow that, as the offence fell properly within the ambit of section 13, the appellant’s conviction of rape under section 5 was disproportionate.

Conclusion

40.  I would hold that it was unlawful for the prosecutor to continue to prosecute the appellant under section 5 in view of his acceptance of the basis of the appellant’s plea which was that the complainant consented to intercourse. This was incompatible with his article 8 Convention right, as the offence fell properly within the ambit of section 13 and not section 5. There is a lesson to be learnt here which I very much hope will be taken into account in future cases of this kind. I would allow the appeal and quash the conviction.

BARONESS HALE OF RICHMOND

My Lords,

41.  On the question of whether this prosecution, conviction and sentence were in breach of the appellant’s rights under article 6 of the European Convention, I have nothing to add to the opinions of my noble and learned friends, Lord Hoffmann and Lord Hope of Craighead, with which I agree. But because your lordships are not unanimous on the question of whether there was a breach of the appellant’s rights under article 8 of the Convention, I feel it necessary to add a few words of my own. I do so in the light of the well-known observations of the European Court of Human Rights in the case of X and Y v The Netherlands (1985) 8 EHRR 235, 239, at paras 22 to 27, that there are positive obligations inherent in an effective respect for private and family life. These may require the criminal law to provide effective protection for those who cannot protect themselves from the sexual attentions of others, as well as requiring the state to abstain from arbitrary interference in the sexual lives of individuals.

42.  Section 5 of the Sexual Offences Act 2003 is entitled “Rape of a child under 13". It provides:

  "(1) A person commits an offence if -

(a) he intentionally penetrates the vagina, anus or mouth of another person with his penis, and

(b) the other person is under 13.

(2) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.”

43.  The conduct which this penalises would also have been penalised under the Sexual Offences Act 1956 (as amended) but the offence committed would have differed according to the sexual act involved and the gender of the victim: unlawful sexual intercourse with a girl under 13, contrary to section 5 of the 1956 Act, carried a maximum of life imprisonment; buggery of a person of either sex, contrary to section 12, also carried a maximum of life imprisonment, unless the exception for acts committed in private between consenting males aged 16 and over applied; indecent assault on a female, under section 14, and on a male, under section 15, carried a maximum of ten years’ imprisonment and both provided that a child under 16 could not give any consent which would prevent the act from being an assault.

44.  Section 5 of the 2003 Act has three main features. First, it singles out penetration by the male penis as one of the most serious sorts of sexual behaviour towards a child under 13; secondly, it applies to such penetration of a child under 13 of either sex; and thirdly it calls this “rape". This is its novel feature but it is scarcely a new idea. The offences of unlawful sexual intercourse under sections 5 and 6 of the 1956 Act were often colloquially known as “statutory rape". This is because the law regards the attitude of the victim of this behaviour as irrelevant to the commission of the offence (although it may, of course, be relevant to the appropriate sentence). Even if a child is fully capable of understanding and freely agreeing to such sexual activity, which may often be doubted, especially with a child under 13, the law says that it makes no difference. He or she is legally disabled from consenting.

45.  There are a great many good reasons for this: see, eg, R v Hess; R v Nguyen [1990] 2 SCR 906, per McLachlin J. It is important to stress that the object is not only to protect such children from predatory adult paedophiles but also to protect them from premature sexual activity of all kinds. They are protected in two ways: first, by the fact that it is irrelevant whether or not they want or appear to want it; and secondly, by the fact that in the case of children under 13 it is irrelevant whether or not the possessor of the penis in question knows the age of the child he is penetrating.

46.  Thus there is not strict liability in relation to the conduct involved. The perpetrator has to intend to penetrate. Every male has a choice about where he puts his penis. It may be difficult for him to restrain himself when aroused but he has a choice. There is nothing unjust or irrational about a law which says that if he chooses to put his penis inside a child who turns out to be under 13 he has committed an offence (although the state of his mind may again be relevant to sentence). He also commits an offence if he behaves in the same way towards a child of 13 but under 16, albeit only if he does not reasonably believe that the child is 16 or over. So in principle sex with a child under 16 is not allowed. When the child is under 13, three years younger than that, he 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 with what is capable of being, not only an instrument of great pleasure, but also a weapon of great danger.

47.  I venture to think that none of this would be at all controversial if the possessor of the penis in question were over the age of 16, certainly if he were an adult. Much has been made of the overlap between the offence of “rape of a child under 13” under section 5 of the 2003 Act and the offence of “sexual activity with a child” under section 9. The section 9 offence distinguishes, in the maximum sentences prescribed, between penetration and other kinds of sexual touching, between victims under and over 13, and, through a combination of sections 9 and 13, between perpetrators aged under and over 18. But it is not suggested that it would be disproportionate to charge the section 5 offence against a man who had sexual intercourse with a girl under 13 simply because the same conduct would also be covered by the section 9 offence which carries a lesser (although still severe) penalty.

48.  What difference can it make that the possessor of the penis is himself under 16? There was a great deal of anxiety in Parliament about criminalising precocious sexual activity between children. The offences covered by section 13 in combination with section 9 cover any sort of sexual touching however mild and however truly consensual. As sexual touching is usually a mutual activity, both the children involved might in theory be prosecuted. Indeed, section 9 expressly contemplates that the person penetrated may be the offender. Obviously, therefore, there will be wide variations in the blameworthiness of the behaviour caught by sections 9 and 13. Both prosecutors and sentencers will have to make careful judgments about who should be prosecuted and what punishment, if any, is appropriate. In many cases, there will be no reason to take any official action at all. In others, protective action by the children’s services, whether in respect of the perpetrator or the victim or both, may be more appropriate. But the message of sections 9 and 13 is that any sort of sexual activity with a child under 16 is an offence, unless in the case of a child who has reached 13 the perpetrator reasonably believed that the child was aged 16 or over. There are many good policy reasons for the law to convey that message, not only to adults but also to the children themselves.

49.  Section 5 reinforces that message. Penetrative sex is the most serious form of sexual activity, from which children under 13 (who may well not yet have reached puberty) deserve to be protected whether they like it or not. There are still some people for whom the loss of virginity is an important step, not to be lightly undertaken, or for whom its premature loss may eventually prove more harmful than they understand at the time. More importantly, anyone who has practised in the family courts is only too well aware of the long term and serious harm, both physical and psychological, which premature sexual activity can do. And the harm which may be done by premature sexual penetration is not necessarily lessened by the age of the person penetrating. That will depend upon all the circumstances of the case, of which his age is only one.

50.  In this case, two 17 year old friends of the 12 year old complainant became concerned when she admitted to them that she had had sexual intercourse with the 15 year old appellant. They took her to a family planning clinic. The clinic called the police. In a video-recorded interview she said that she had gone to the appellant’s home and into his bedroom where they had chatted and he had then had sexual intercourse with her even though she said that she did not want to. The appellant was charged with the section 5 offence. No complaint is made about the initial decision to charge.

51.  The appellant then offered to plead guilty on the basis that the complainant willingly agreed to have sexual intercourse with him and that he believed that she was 15 years old because she had told him so. The prosecution were at first unwilling to accept this basis of plea, because the complainant was adamant that she did not want to have sexual intercourse with the appellant. She did, however, accept that she might have told him that she was 15. Accordingly, a Newton hearing was fixed in order that the sentencing judge could decide the facts. The complainant was, however, terrified of attending court and so, with the support of her mother, decided that she was content with the basis of plea.

52.  The prosecution were then invited to drop the case altogether but declined to do so. They were not invited to consider substituting a charge under section 13. The judge sentenced the appellant to a 12 month detention and training order for the section 5 offence but this was reduced on appeal to a 12 month conditional discharge.

53.  No complaint is now made about the decision to continue to prosecute. Nor is there any complaint about the eventual disposal. The complaint is that, despite the guilty plea and despite the defence not having suggested this course, the prosecution should have substituted a charge of the section 13 offence. Continuing to prosecute the section 5 offence was, it is said, a disproportionate interference with the appellant’s right to respect for his private life under article 8(2) of the Convention.

54.  In effect, therefore, the real complaint is that the appellant has been convicted of an offence bearing the label “rape". Parliament has very recently decided that this is the correct label to apply to this activity. In my view this does not engage the article 8 rights of the appellant at all, but if it does, it is entirely justified. The concept of private life “covers the physical and moral integrity of the person, including his or her sexual life” (X and Y v The Netherlands, para 22). This does not mean that every sexual relationship, however brief or unsymmetrical, is worthy of respect, nor is every sexual act which a person wishes to perform. It does mean that the physical and moral integrity of the complainant, vulnerable by reason of her age if nothing else, was worthy of respect. The state would have been open to criticism if it did not provide her with adequate protection. This it attempts to do by a clear rule that children under 13 are incapable of giving any sort of consent to sexual activity and treating penile penetration as a most serious form of such activity. This does not in my view amount to a lack of respect for the private life of the penetrating male.

 
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