R v G (Secretary of State for the Home Department intervening)

JurisdictionEngland & Wales
CourtHouse of Lords
Judgment Date18 June 2008
Neutral Citation[2008] UKHL 37
Date18 June 2008

[2008] UKHL 37


Appellate Committee

Lord Hoffmann

Lord Hope of Craighead

Baroness Hale of Richmond

Lord Carswell

Lord Mance

(Appellant) (On appeal from the Court of Appeal (Criminal Division))


Tim Owen QC

Rebecca Trowler

(Instructed by Alexander & Partners)


David Perry QC

Melanie Cumberland

(Instructed by Crown Prosecution Services)


Jeremy Johnson

(Instructed by Treasury Solicitors)


My Lords,


On 20 April 2005 the appellant pleaded guilty to the offence of rape of a child under 13, contrary to section 5 of the Sexual Offences Act 2003:

(1) A person commits an offence if —

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

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

  • (b) the other person is under 13.


For the purpose of sentence, the prosecution accepted the appellant's version of the facts, namely, that the accused was 15 at the time of the offence, the complainant had consented to intercourse and she had told him that she was 15. On 8 July 2005 Judge Hone sentenced him to a 12 month detention and training order. The appellant appealed on the grounds that (1) the conviction violated his right to a fair trial and the presumption of innocence under article 6 of the Convention, because it was an offence of strict liability, and (2) it violated his right to privacy under article 8 because it was disproportionate to charge him with rape under section 5 when he could have been charged with a less serious offence under section 13, which deals with sex offences committed by persons under 18. The Court of Appeal dismissed the appeal against conviction but allowed an appeal against sentence and substituted a conditional discharge. It certified two questions as being of general public importance:

  • (1) May a criminal offence of strict liability violate article 6(1) and/or 6(2)…?

  • (2) Is it compatible with a child's rights under article 8…to convict him of rape contrary to section 5…in circumstances where the agreed basis of plea establishes that his offence fell properly within the ambit of section 13…?


The mental element of the offence under section 5, as the language and structure of the section makes clear, is that penetration must be intentional but there is no requirement that the accused must have known that the other person was under 13. The policy of the legislation is to protect children. If you have sex with someone who is on any view a child or young person, you take your chance on exactly how old they are. To that extent the offence is one of strict liability and it is no defence that the accused believed the other person to be 13 or over.


Article 6(1) provides that in the determination of his civil rights or any criminal charge, everyone is entitled to a "fair and public hearing" and article 6(2) provides that everyone charged with a criminal offence "shall be presumed innocent until proved guilty according to law". It is settled law that Article 6(1) guarantees fair procedure and the observance of the principle of the separation of powers but not that either the civil or criminal law will have any particular substantive content: see Matthews v Ministry of Defence [2003] UKHL 4; [2003] 1 AC 1163. Likewise, article 6(2)requires him to be presumed innocent of the offence but does not say anything about what the mental or other elements of the offence should be. In the case of civil law, this was established (after a moment of aberration) by Z v United Kingdom (2001) 34 EHRR 97. There is no reason why the reasoning should not apply equally to the substantive content of the criminal law. In R v Gemmell [2002] EWCA Crim 1992; [2003] 1 Cr App R 343, 356, para 33 Dyson LJ said:

"The position is quite clear. So far as Article 6 is concerned, the fairness of the provisions of the substantive law of the Contracting States is not a matter for investigation. The content and interpretation of domestic substantive law is not engaged by Article 6."


The only authority which is said to cast any doubt upon this proposition is the decision of the Strasbourg court in Salabiaku v France (1988) 13 EHRR 379 and in particular a statement in paragraph 28 (at p.388) that "presumptions of fact or of law" in criminal proceedings should be confined "within reasonable limits". No one has yet discovered what this paragraph means but your Lordships were referred to a wealth of academic learning which tries to solve the riddle.


My Lords, I think that judges and academic writers have picked over the carcass of this unfortunate case so many times in attempts to find some intelligible meat on its bones that the time has come to call a halt. The Strasbourg court, uninhibited by a doctrine of precedent or the need to find a ratio decidendi, seems to have ignored it. It is not mentioned in Z v United Kingdom (2001) 34 EHRR 97. I would recommend your Lordships to do likewise. For my part, I would simply endorse the remarks of Dyson LJ in R v Gemmell [2003] 1 Cr App R 343, 356.


The other ground of appeal is that the conviction violated the appellant's right of privacy under article 8. This is, on the face of it, an astonishing proposition. Is it really being suggested that a young person under 18 has a human right to have undisturbed sexual intercourse with a child under 13? If anything is likely to bring human rights into disrepute, it is such a claim.


When one examines the argument of Mr Owen QC for the appellant, however, he is not saying any such thing. He does not claim that sexual intercourse with children under 13, even in the privacy of the appellant's home, ought not to be prohibited. But he says that, as he was only 15 at the time of the offence, the Crown acted unduly harshly by prosecuting him under section 5 rather than under section 13, which deals with sexual offences committed by persons under 18 and carries a maximum penalty of imprisonment for 5 years.


Assuming this to be right, the case has in my opinion nothing to do with article 8 or human rights. Article 8 confers a qualified right that the state shall not interfere with what you do in your private or family life. Any interference with your conduct by the state must be necessary and proportionate for one of the purposes mentioned in article 8.2. But you either have such a right or you do not. If the state is justified in treating your conduct as unlawful, for example, because you are beating your wife or sexually abusing children, article 8 does not generate an additional right that the state shall not be too hard on you for whatever you have done because it happens to have been done at home.


Prosecutorial policy and sentencing do not fall under article 8. If the offence in question is a justifiable interference with private life, that is an end of the matter. If the prosecution has been unduly heavy handed, that may be unfair and unjust, but not an infringement of human rights. It is a matter for the ordinary system of criminal justice. It would be remarkable if article 8 gave Strasbourg jurisdiction over sentencing for all offences which happen to have been committed at home. This case is another example of the regrettable tendency to try to convert the whole system of justice into questions of human rights.


It is true that in Laskey, Jaggard and Brown v UK (1997) 24 EHRR 39 (the sado-masochism case) the Strasbourg court, in deciding whether prosecution was a proportionate interference with indulgence in such practices in private, noted (at para 49) that "reduced sentences were imposed on appeal". And in KA and AD v Belgium (Application Nos 42758/98 and 45558/99) ( unreported 17 February 2005), a similar case from Belgium, the court also noted that the sentences were not disproportionate. But the issue in both cases was whether such activities should be criminalised at all. The judgments contain no explanation of why the sentences were thought to be relevant.


In my opinion, therefore, the answers to the certified questions are no and yes respectively. That leaves only the question of whether in the particular circumstances of this case, it was an abuse of process for the Crown to prosecute under section 5. That is not a question which has been certified. For what it is worth, I agree with the Court of Appeal that the Crown was not obliged to withdraw the charge under section 5 when they found themselves having to accept the appellant's version of events. "Rape of a child under 13" still accurately described what the appellant had done. Parliament decided to use this description because children under 13 cannot validly or even meaningfully consent to sexual intercourse. So far as the basis of plea provided mitigation, they were entitled to leave the judge to take it into account. I would dismiss the appeal.


My Lords,


Section 5 of the Sexual Offences Act 2003, which makes sexual intercourse with a child under 13 a crime of strict liability irrespective of the age of the defendant and calls it rape, has given rise to some important and difficult questions: see J R Spencer, The Sexual Offences Act 2003: (2) Child and Family Offences [2004] Crim L R 347, 360. Section 13 of the same Act, read with section 9(1)(c)(ii), makes it an offence for a person under 18 to have sexual intercourse with a child under 13. Unlike section 5, it does not attach the label of rape to this offence. What behaviour then should the criminal law prohibit, and what should it not? To what extent is it is reasonable to leave it to the police and other authorities to decide when to prosecute and, where there is a choice, for which offence? These questions have been...

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