DPP v K. and B

JurisdictionEngland & Wales
JudgeLORD JUSTICE RUSSELL,MR JUSTICE SCOTT BAKER
Judgment Date25 June 1996
Judgment citation (vLex)[1996] EWCA Civ J0625-4
Docket NumberCO 255-96
CourtCourt of Appeal (Civil Division)
Date25 June 1996

[1996] EWCA Civ J0625-4

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

(CROWN OFFICE LIST)

Royal Courts of Justice

Strand

London WC2

Before:

Lord Justice Russell

Mr Justice Scott Baker

CO 255-96

The Director of Public Prosecution
and
"K" & "C"

MR J McGUINNESS (instructed by CPS London, Stag Place, Victoria, London SW1E 5BH) appeared on behalf of the Director of Public Prosecution.

MR P FERNANDO (instructed by 225A Lewisham Way, London SE4 1VY) appeared on behalf of the K.

MISS C POPERT (instructed by Murrays, 94-96 Walworth Rd, London SE1 6SW.

1

(As approved)

2

LORD JUSTICE RUSSELL
3

In September 1994, two girls whom I shall refer to as "A" and "B" were respectively 14 years and 11 years of age. On 9th of that month they encountered another girl "W" who was 14 years of age.

4

During the ensuing two and a half hours or so, they subjected "W" to what must have been an appalling ordeal. "W" was threatened, falsely imprisoned and robbed. Eventually, a boy became involved. "W" was told by "A" and "B" to remove some of her clothing and to have sexual intercourse with the boy.

5

All four youngsters were by now in a block of flats. In the privacy of a room there the boy had sexual intercourse with "W". There was partial penetration. It was followed by further sexual intimacy. "W" was distressed. There was no suggestion that she consented to any of the sexual activity.

6

The boy left the scene and has never been traced.

7

He was or may well have been under the age of 14 years but certainly over 10 years.

8

In due course criminal proceedings against "A" and "B" were heard by Jeffrey Wicks Esq, a Metropolitan Stipendiary Magistrate sitting at a special youth court at Bow Road, London E3. There were a number of informations laid against "A" and "B", but the material one, for the purposes of this case, alleged that they with two others, later acquitted, aided, abetted, counselled and procured the commission of the offence of rape upon "W" by an unknown person.

9

The Magistrate found that the Crown had negatived doli incapax in relation to "B" and she was convicted as was "A" of false imprisonment and robbery. However, as to the charge of rape, the Magistrate made a number of findings which lead to his dismissing the information charging rape against both "A" and "B". The Director of Public Prosecution appeals against that dismissal of the charge of rape and of indecent assault where precisely the same questions arise by way of Case Stated. In addition to the case we have also had the advantage of perusing written reasons prepared by the Magistrate to support his findings.

10

First, he found that the boy being possibly under the age of 14 years, it was incumbent upon the prosecution to negative the presumption of doli incapax. Perhaps, surprisingly, in the light of the facts and legal authority, the Magistrate found that the prosecution had failed to negative doli incapax in the boy and that, therefore, if he had been charged he would have been entitled to an acquittal.

11

The Director recognises that he cannot challenge this part of the Magistrate's decision and he does not do so.

12

Mr Wicks then considered the position of the respondents "A" and "B" in the light of his finding vis-a-vis the boy. He concluded and I cite from the case stated.

(i) W, the alleged victim, was born on 25th April 1980. She was aged 14 at the time of the events giving rise to the charges, and 15 at the date when she gave her evidence.

(ii) On 9th September 1994 W was on her way to visit her grandmother when

she was approached by [A] and [B] in the car park of a block of flats.

(iii) W remained in the company of [A] and [B] and other young persons during the next two and a half hours or so, during which time she was subjected to threats and violence and was (as I found) robbed of articles and falsely imprisoned. I do not go into the detail of my findings this far since I respectfully believe such detail to be immaterial to the point raised in the Case which I herein stated.

(iv) There came a time during the incident when [W], operating under the threats of [A] and [B], went with an unknown male and acts of sexual intimacy took place which, as I respectfully believe them to be material to this case, I state in detail in the following paragraphs (v) to (xiii).

(v) [A] and [B] were acting in concert. By threat and violence they made [W] remove her cardigan and bra and made clear they expected her to have sexual intercourse with the boy.

(vi) [W] and the unknown boy went into a room apart from [A] and [B].

(vii) The boy said 'Do you want me to do this?' and W replied 'I don't exactly want you to do it but I haven't got a choice'. In saying this she was affected by threats uttered to her by [A] and [B].

(viii) The boy touched the breasts of [W], told [W] to lie on the floor, [W] took down her tights and knickers to a position below the knees and the boy unzipped his trousers and lay on top of W.

(ix) The boy inserted his erect or partially erect penis in the vagina of [W] sufficient to amount to penetration, but no ejaculation took place.

(x) [W], in purporting to consent to the act of sexual penetration, was moved by fear of violence induced by threats made to her by [A] and [B] who remained in close proximity throughout the act. It was not established whether at the time of the act of penetration the boy knew whether [W] was or was not consenting.

(xi) After the act of penetration and after being subjected to further violence and threats made in the presence of the boy by [A] and [B], the boy held out his erect penis and [W] was forced to suck it until she became sick.

(xii) The identity of the boy was not established and there was no positive evidence as to his age. In relation to his age the following matters emerged during the course of the case:-

(a) In evidence [W] gave the age of the boy as 'around 14 I think'. She described him in relation to another boy as smaller, but thought the other boy 'looked about 18'. She referred to the boy during her evidence as 'the little boy'.

(b) [B] (who was 11 years old at the relevant time) said in her interview by the police that she believed the boy to be 'about 15'.

(c) [A] (who at the relevant time was herself aged 14) said in interview by the police that she considered he was 'about 13'.

(xiii) Given the absence of positive evidence as to age and given the age of all the children and young persons involved in the incident, it was reasonably possible that the boy was aged less than 14."

13

Mr John McGuinness on behalf of the Director makes a number of submissions arising out of these findings. First, he contends that the Appellants were procurers of the offence of rape. As such, they were in reality secondary parties to the offence and were never principals. They did not assist the boy to have sexual intercourse with [W] by, for example, holding the girl down. Indeed, they were not physically present when the sexual activity took place. Not being principals but rather accessories before the fact, their gender was irrelevant and the Magistrate fell into error in paragraph 6 of his conclusions. A female can undoubtedly procure the commission of rape by a male.

14

As a procurer, a female is liable to conviction as a principal but in law is not a principal save when employing an innocent agent. In this case the boy involved could hardly be so described.

15

Secondly, Mr McGuinness contends that the finding of doli incapax in the boy or the failure of the Crown to negative it, did not vitiate the conviction of the Respondents as procurers. This is the kernal of the appeal.

16

In my view, Mr McGuinness is right and with all respect to him the Magistrate was wrong.

17

A boy under the age of 10 years...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT