Prosecuting Children under S. 5 of the Sexual Offences Act 2003
| Author | Cath Crosby |
| DOI | 10.1350/jcla.2008.72.6.534 |
| Published date | 01 December 2008 |
| Date | 01 December 2008 |
| Subject Matter | House of Lords |
House of Lords
Prosecuting Children under s. 5 of the Sexual Offences
Act 2003
R vG[2008] UKHL 37
Keywords Sexual Offences Act 2003; Rape of a child; Consent; Sex
offences and Convention rights; Juvenile offenders
The appellant (hereafter referred to as G) was convicted of rape of a child
under 13, contrary to s. 5 of the Sexual Offences Act 2003, in July 2005,
having pleaded guilty. For sentencing purposes the prosecution accepted
G’s version of events, namely, that he was 15 years old at the time of the
offence, the complainant (C) had consented to sexual intercourse and
she had lied about her age, having told him that she was 15. After being
sentenced to a 12-month detention and training order, G appealed to the
Court of Appeal on the grounds that:
(a) The conviction violated his right to a fair trial and the presump-
tion of innocence under Article 6 of the European Convention on
Human Rights, because it was an offence of strict liability; and
(b) It violated his right to privacy under Article 8 because it was
disproportionate to charge him with rape under s. 5 when he
could have been charged with a less serious offence under s. 13,
which deals with sex offences committed by persons under 18.
The Court of Appeal, in dismissing the appeal against conviction but
allowing an appeal against sentence, certified two questions as being of
general public importance:
(i) May a criminal offence of strict liability violate Article 6(1) and/or
6(2) . . .?
(ii) Is it compatible with a child’s rights under Article 8 . . . to convict him
of rape contrary to s 5 . . . in circumstances where the agreed basis of
plea establishes that his offence fell properly within the ambit of
s 13 . . .?
H
ELD
,
DISMISSING THE APPEAL AND UPHOLDING THE CONVICTION BY A
MAJORITY OF
3:2, the answers to the certified questions were ‘NO’ and
‘YES’ respectively. Although their Lordships were unanimous in their
answer to the first question, Lord Hope of Craighead and Lord Carswell
dissented with regard to the second.
Article 6 was not engaged as it is concerned with procedural fairness
to ensure a fair trial but not with the substantive elements of the offence
with which a person is charged. That is a matter for the contracting states
to determine. Article 8 gives everyone a ‘right to respect for his private
and family life’ which not only requires the State to abstain from undue
interference in the private lives of individuals, but may also require
positive steps to be taken to provide effective protection for those
vulnerable to the sexual attentions of others.
491The Journal of Criminal Law (2008) 72 JCL 491–496
doi:1350/jcla.2008.72.6.534
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