|Judgments - R v G (Appellant) (On appeal from the Court of Appeal (Criminal Division))
55. Even supposing that it did, it cannot be an unjustified interference with that right to label the offence which he has committed rape". The word rape does indeed connote a lack of consent. But the law has disabled children under 13 from giving their consent. So there was no consent. In view of all the dangers resulting from under age sexual activity, it cannot be wrong for the law to apply that label even if it cannot be proved that the child was in fact unwilling. The fact that the appellant was under 16 is obviously relevant to his relative blameworthiness and has been reflected in the second most lenient disposal available to a criminal court. But it does not alter the fact of what he did or the fact that he should not have done it. In my view the prosecution, conviction and sentence were both rational and proportionate in the pursuit of the legitimate aims of the protection of health and morals and of the rights and freedoms of others.
56. In agreement with my noble and learned friends, Lord Hoffmann and Lord Mance, therefore, I would dismiss this appeal and answer the first certified question in the negative and the second in the positive.
57. Determining the appropriate sentence in cases involving sexual activity between young people is one of the more difficult tasks facing judges in criminal courts. They have to attempt to uphold the intention of Parliament in attaching penalties to acts of various kinds, while recognising the changes in sexual morality and behaviour which have taken place, involving greater sexual activity at younger ages than would have been accepted in previous generations. The appeal before your Lordships demonstrates some of these difficulties.
58. Some of the problems encountered in the present case stem from the lack of definite knowledge of the true facts of what occurred between the complainant and the appellant. The complainant alleged that he had had vaginal intercourse with her against her will, whereas the appellant has made the case that intercourse was consensual and that he thought that she was aged fifteen years. The term consensual is not accurate in the legal sense, for she could not at the age of twelve years give sufficient consent to excuse the act, since any sexual act performed on a child under thirteen years constitutes an offence, irrespective of the complainants willingness to engage in the activity or the defendants knowledge or belief about her age.
59. The immediate difficulty arose because the complainant was unwilling to give evidence, even on a Newton hearing for fixing sentence, and the Crown had to accept the basis on which the appellant was prepared to plead guilty, that the complainant had agreed to intercourse and had told him that she was fifteen years of age, his own age at the time. It may well be that the judge had reservations about the factual correctness of this plea, but once it was accepted as the basis on which the court was to proceed it had to be regarded as correct and the sentence had to reflect the facts contained in it. The custodial sentence imposed by the judge was plainly inappropriate and excessive on those facts and the Court of Appeal were right to vary it.
60. But this was not the issue which was debated before your Lordships. That was a rather more difficult one, whether it was right in the circumstances of the case for the Crown to continue the prosecution on the basis of section 5 of the Sexual Offences Act 2003, rather than substituting one based on section 13. I agree with your Lordships that the Crown are not to be criticised for framing the charge in the first place under section 5, for on the allegations made by the complainant this was a true case of rape within that section. When the basis of the plea was finally settled, however, it was time for the Crown and the court to consider whether it was appropriate to continue to prosecute the appellant under section 5. I am of the opinion, in agreement with my noble and learned friend Lord Hope of Craighead, that it was not so appropriate. It is common knowledge, as my noble and learned friend Baroness Hale of Richmond has pointed out in paragraph 44 of her opinion, that the term statutory rape has been applied for many years to offences of unlawful sexual intercourse with children under thirteen years. This may be convenient lawyers shorthand, but it is a crude generalisation, containing a use of the term rape which is often inaccurate. It certainly does not reflect the reality of an act of the kind of that which was the subject of the appellants guilty plea. It would in my view be a good thing if the term now disappeared from the lawyers vocabulary.
61. The issue on which your Lordships are divided is whether to continue the prosecution of the appellant under section 5 constituted a breach of his rights under article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. I do not propose to lengthen this opinion unnecessarily by repeating the reasons given by Lord Hope for holding that it did, for I have come to the conclusion that those reasons are correct and I agree with them. I am therefore of opinion that to continue the prosecution under section 5, instead of substituting a charge under the appropriate section 13, was a breach of the appellants article 8 rights.
62. It follows that, like Lord Hope, I would allow the appeal and quash the conviction.
63. I have had the benefit of reading in draft the opinion of my noble and learned friends, Lord Hoffmann, Lord Hope of Craighead and Baroness Hale of Richmond. On the question whether the appellants prosecution, conviction and sentence were in breach of his rights under article 6 of the European Convention on Human Rights, I agree with the opinions of Lord Hoffmann and Lord Hope and wish to add nothing.
64. On the question whether there was a breach of the appellants rights under article 8 of the Convention, that article gives everyone a right to respect for his private and family life ". As my noble and learned friend, Baroness Hale, notes in paragraph 41, there are positive obligations inherent in an effective respect for private and family life. The State has not only to abstain from undue interference in the private lives of individuals, but may have to take positive steps to provide effective protection for those vulnerable to the sexual attentions of others.
65. S.5 of the Sexual Offences Act 2003 represents a positive step in that sense. Headed Rape of a child under 13", it penalises an intentional penetration by a person with his penis of the vagina, anus or mouth of another person who is under 13. Neither a belief that the latter person is 13 or more nor consent (even if it were meaningful to speak of this in the case of a person so young) is any answer. The maximum penalty is life imprisonment. There is an overlap with the combination of ss.9 and 13 (headed Sexual activity with a child). In their originally proposed form, these sections did not apply to offences against children under the age of 13. As enacted, however, they cover inter alia the conduct covered by s.5, but they involve, in the case of an offence committed by a person under 18, on summary conviction imprisonment for a term not exceeding 6 months or a fine and on conviction on indictment imprisonment for a term not exceeding 5 years.
66. The complainant in the present case was aged 12 at the relevant time and the appellant was aged 15. At the time when the Crown Prosecution Service (CPS) charged the offence under s.5, their understanding from the complainant was that she had not been willing to have sexual intercourse. The appellant pleaded guilty on 20th April 2005, but did so on the basis that (a) she had consented and (b) he had believed that she was 15, because she had told him so on an earlier occasion. The complainant accepted that she may at some point have told the appellant that she was 15, but did not agree that she had consented. A Newton hearing was fixed for 9th/10th June 2005 to enable the judge to determine the actual factual position before sentencing. But the complainant, supported by her mother, was terrified about attending and giving evidence in court and she and the Crown Prosecution Service (CPS) were, in order to avoid her having to do this, content to accept the basis of plea proposed by the appellant. They informed the appellants solicitors accordingly on 25th May 2005. The solicitors then wrote asking whether, in the event of the appellant being allowed to vacate his plea, the CPS would offer no evidence. The solicitors asserted that, had the basis of plea been accepted at the outset then surely there would not have been a prosecution of the defendant at all"; and that However leniently our client may be dealt with as a result of his basis of plea being accepted, he will in any event be stigmatised and disadvantaged for the rest of his life by the fact of his conviction for rape and all that accompanies such a conviction (notification requirements, limits on employment and other opportunities)". The solicitors did not invite the substitution of any charge under ss.9 and 13. In order to do this they would anyway have had to apply to and persuade the judge to allow the appellant to change his plea. The only grounds on which they might have sought to persuade a judge to that unusual course would have been those which they now advance, for the first time, on appeal.
67. Article 8 covers the physical and moral integrity of the person (X & Y v. The Netherlands (1985) 8 EHRR 235, para 22. As early as in X v. Iceland (1976) 5 DR 86, 87 the European Commission of Human Rights said that article 8
comprises also, to a certain degree, the right to establish and to develop relationships with other human beings, especially in the emotional field for the development and fulfilment of ones own personality".
In Von Hannover v. Germany (2004) 40 EHRR 1, concerning the publication of photographs of Princess Caroline of Hannover in various public contexts, the European Court of Human Rights said:
50. The Court reiterates that the concept of private life extends to aspects relating to personal identity, such as a persons name (see Burghartz v. Switzerland (1994) 18 EHRR 101, para 24, or a persons picture (see Schüssel v. Austria (dec), no 42409/98, 21 February 2002).
Furthermore, private life, in the Courts view, includes a persons physical and psychological integrity; the guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings (see, mutatis mutandis, Niemietz v. Germany, (1993) 16 EHRR 97, para 29 and Botta v. Italy (1998) 26 EHRR 241, para 32. There is therefore a zone of interaction of a person with others, even in a public context, which may fall within the scope of private life (see, mutatis mutandis, P.G. and J.H. v. the United Kingdom, no. 44787/98, § 56, 25 September 2001 and Peck v. United Kingdom (2003) 36 EHRR 41, para 57).
Article 8 thus extends potentially well beyond spheres which might be described as physically private.
68. In the present case, it is said that the appellants conviction and sentencing for an offence headed rape of a child under 13 involved both a stigma and practical consequences which will dog the appellants life and which were disproportionate, at least bearing in mind the alternative offence under ss.9 and 13 under which he might have been charged and sentenced. The conditional discharge for a period of 12 months substituted by the Court of Appeal Criminal Division will mean that, provided the appellant commits no further offence during that period, the notification requirement under ss.80-92 and Schedule 3 of the Sexual Offences Act 2003 will end with it, although no such requirement would have applied at all had he been convicted of the lesser offence under ss.9 and 13. That is a minor distinction which could not in my view justify a conclusion that it was inappropriate or disproportionate to proceed under s.5.
69. The conditional discharge will also mean that the appellant will not generally be treated as having been convicted at all, but it is pointed out that for some purposes his conviction will still be material and prejudicial. For example, an employer or prospective employer may still request its disclosure, and take it into account, and it may be detrimental to the appellants prospects of obtaining certain employment. It would still also require to be disclosed in certain contexts, for example if he applied for a firearms certificate or for a visa to travel to the United States. It could prevent him from putting himself forward as a person of good character without its disclosure in any future criminal proceedings. Remaining on the police national computer, it could also affect police and others attitude to him, at least until further enquiry had been made. But all these consequences are consequences which would flow in very largely the same measure from conviction under ss.9 and 13, to which (despite somewhat faint suggestions to the contrary before the House) I do not see that the appellant could on any basis have objected.
70. In the final analysis, the core of the appellants objection to what occurred lies in the stigma which he maintains he will sustain as a result of the heading attached to s.5. If he had any complaint on this score, it has to be, as I see it, on the basis that the use of the word rape in that heading involves an unjustified stigma which will affect his right to establish and to develop relationships with other human beings, especially in the emotional field for the development and fulfilment of ones own personality (see paragraph 67 above). However, as Baroness Hale observes, the concept of statutory rape has long been familiar as a description of the previous strict liability offence of unlawful sexual intercourse with a girl existing under s.5 of the Sexual Offences Act 1956. The actual ingredients of the offence are defined by the actual wording of the section. The ingredients are strict, but their strictness reflects the protective purpose of the section and the unreality or unreasonableness of speaking of any properly informed consent in relation to sexual intercourse with someone aged 12 or under. There would also be a, even if not necessarily the same, stigma attaching to the similarly strict offence in relation to those under 13 enacted by ss.9 and 13 under the heading Sexual activity with a child". In either case, the appellant would have found himself in situations where he would have to explain the circumstances in order to dispel or diminish the stigma.
71. The criticism made is that the offence under s.5 should have been framed so as to contain an exception for a belief (at least if reasonably held) on the part of the defendant that the complainant was 13 or over, and/or possibly also for circumstances where the defendant was himself under a certain age. But the offence under s.5 is deliberately strict in its protective intention, and leaves such matters to be taken account of in sentencing. It is equally the case in the case of a complainant under the age of 13 that any such belief would be no defence under ss.9 and 13.
72. Having regard to the strong protective needs of children under 13, I do not regard either the statutory scheme as a whole, or the position in which the appellant is in after the Court of Appeals substitution of a conditional discharge, as either unjustified or disproportionately prejudicial to the appellants future development of his personality or of his relationships with others in any way which could involve a breach of article 8. Even if I had been inclined to favour any contrary view, I would have found it difficult to see any basis for intervention (beyond alteration of the sentence as ordered by the Court of Appeal in view of the five months for which the appellant had already been in custody prior to sentence) bearing in mind the course of events in this case, the plea of guilty which the appellant entered and the absence of any application to the judge at any stage either to vacate that plea or to stay the proceedings under s.5.
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