Deception as to Gender Vitiates Consent
| Published date | 01 December 2013 |
| DOI | 10.1350/1740-5580-77.6.464 |
| Date | 01 December 2013 |
| Subject Matter | Court of Appeal |
was held that so-called ‘facial mapping’ evidence identifying the defend-
ant on security camera images taken at the time and scene of the crime
was a sufficient basis to convict without any corroborative evidence. It
might be argued that the cases are distinguishable because, although
‘facial mapping’ has vastly inferior scientific credentials to DNA profil-
ing, when applied to CCTV or security camera images it provides direct
evidence of the defendant either committing the crime or in very close
temporal and spatial proximity to it. Thus, as Tucker LJ reasoned in
Mitchell (at [11]) it is analogous to eyewitness identification evidence,
and the courts continue (unfortunately) to uphold convictions based on
a single witness’s identification, provided the witness’s observation of
the perpetrator was something more than a ‘fleeting glance’. A recent
example is R v McBean [2013] EWCA Crim 1325.
By contrast, the scarf in the present case, like the balaclava in Grant,
can be classed as merely strong circumstantial evidence, and even
maximally reliable scientific evidence linking them to the defendant
could not conclusively establish guilt. This reasoning, however, is diffi-
cult to apply to Lashley. There appears to have been no suggestion that
the half-smoked cigarette left behind a Post Office counter after an
armed robbery came from anyone but one of the robbers, or that the
saliva found on it was deposited by anyone other than the smoker. The
problem was that the DNA could have come, according to the expert,
from any of an estimated 26 males in the UK. How was that different
from Hookway, where the medical artist who examined the images
conceded that there might be one or two other people of similar appear-
ance in Manchester alone, home to less than 5 per cent of the UK
population (Hookway, transcript at p. 2)? It is submitted that these
authorities are in conflict, and Lashley is clearly the better decision.
Tony Ward
Deception as to Gender Vitiates Consent
R vMcNally [2013] EWCA Crim 1051
Keywords Assault by penetration; Consent; Deception; Freedom and
choice
The appellant, JM, pleaded guilty to six counts of assault by penetration.
A further count was left to lie on the file. (The precise circumstances
behind the seventh count are important and will be referred to later.)
The facts are unusual. JM was a teenage girl living in Scotland. At the
age of 13, she met the complainant, M, through the social networking
site ‘Habbo’ and they began to correspond via MSN. JM pretended to be
a boy called Scott Hill. M, also female, was ‘aged 12–13’ at the time they
first made contact. The correspondence went on for approximately three
years, with JM keeping up the pretence throughout. The messaging
The Journal of Criminal Law
464
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