R v G (Secretary of State for the Home Department intervening)
| Jurisdiction | England & Wales |
| Judgment Date | 12 April 2006 |
| Neutral Citation | [2006] EWCA Crim 821 |
| Docket Number | Case No: 2005/3987/B2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 12 April 2006 |
[2006] EWCA Crim 821
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
HHJ HONE & HHJ HAWKINS
T20050023
Royal Courts of Justice
Strand, London, WC2A 2LL
The Lord Chief Justice of England and Wales
Mr Justice Andrew Smith and
Mr Justice Wilkie
Case No: 2005/3987/B2
T Owen QC & R Trowler for the Appellant
L Kamill & I Kolhatkar for the Respondent
J Johnson for the Intervener
Lord Phillips CJ:
On 20 April 2005 in the Central Criminal Court before HH Judge Hawkins the appellant pleaded guilty to rape of a child under 13 contrary to section 5 of the Sexual Offences Act 2003 ('SOA'). On 8 July 2005 he was sentenced by HH Judge Hone to a 12 months Detention and Training Order. The effect of that sentence is to subject the appellant to the notification requirements imposed by Part 2 of that Act for a period of 5 years.
Walker J granted the appellant permission to appeal against the sentence but refused him permission to appeal against conviction. On 9 November 2005 he renewed that application to the full court. The court adjourned the hearing of that application with directions that it should be heard on notice to the Crown, with the appeal to follow if permission were given. At the start of the hearing we gave the appellant permission to appeal against conviction, and to do so out of time.
Because the appellant seeks to argue, by way of alternative submission, that section 5 of the SOA is incompatible with the European Convention on Human Rights ('the Convention'), notice has been given to the Secretary of State for the Home Department, who has intervened and is represented by Mr Jeremy Johnson.
Mr Tim Owen QC, who appears on behalf of the appellant, originally sought simply to contend that, if it could not be 'read down', section 5 of the SOA was incompatible with Article 6.2 of the Convention. He has added a further submission based on the Convention. He contends that the prosecution, conviction and sentence in this case, taken individually or together, constitute a disproportionate interference with respect for the appellant's private life in breach of Article 8 of the Convention.
The facts
At the time of the events that we are about to describe the appellant was aged 15 and the complainant was 12 years old. In September or October 2004, a relatively short time after they first met, the complainant accompanied the appellant to his home, where they went into his bedroom. After talking with her for a while the appellant had sexual intercourse with the complainant, using a condom.
A few weeks later the complainant told two friends what had happened. She said that she had not consented to having sexual intercourse. The facts were brought to the attention of the police and in an interview, recorded by video, the complainant gave the following account of what had occurred. After a casual meeting she spoke to the appellant on a couple of occasions by mobile telephone and they arranged to meet again. Because it was raining they went to the appellant's home. They went into his bedroom 'to talk'. The door was closed, and possibly locked. The appellant quizzed her about her school. Suddenly he took down her trousers and flung them across the room. She understood what was about to happen and, alarmed, made clear her objections. Despite these, the appellant proceeded to have vaginal intercourse with her. They remained about ten minutes in the room, then parted. They had no further contact.
The appellant pleaded guilty on 20 April 2005 on the following basis, as recorded in writing:
i) The complainant willingly agreed to have sexual intercourse with the defendant.
ii) At the time the defendant believed that the complainant was 15 years old. She told him so on an earlier occasion.
iii) The defendant nonetheless pleads guilty to the SOA 2003 offence having been advised that, by reason of the fact that the complainant was under 13 at the relevant time, the offence is committed irrespective of:
a) consent
b) reasonable belief in consent
c) a reasonable belief as to age.
The prosecution were not, initially, prepared to accept this basis of plea and a Newton hearing was fixed for 9 and 10 June 2005. However at a subsequent hearing they informed the court that they had decided to accept the basis of plea advanced because the complainant had accepted that she had told the appellant that she was 15 and she was reluctant to attend court to give evidence at the Newton hearing.
Some of Mr Owen's submissions are founded on the difference between section 5 and section 13 of the SOA. These sections need to be considered in their context.
The first four sections of the SOA enact offences in respect of which the age of the victim is not relevant.
Section 1 provides:
" 1 Rape
(1) A person (A) commits an offence if –
(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents.
(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.
(3) Sections 75 and 76 apply to an offence under this section.
(4) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life."
Sections 5 to 8 of the SOA enact offences committed where the victim is a child under 13.
Section 5 provides:
" Rape of a child under 13
(1) A person commits an offence if-
(a) he intentionally penetrates the vagina, anus or mouth of another person with his penis, and
(b) the other person is under 13.
(2) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life"
Section 5 is followed by three further offences where an element of the offence is that the victim is under 13, namely assault of a child under 13 by penetration, sexual assault of a child under 13 and causing or inciting a child under 13 to engage in sexual activity. In the case of each of these offences, it is not an express element of the offence either that the victim does not consent or that the defendant does not reasonably believe that the victim consents or that the victim is 13 or over.
Sections 9 to 12 enact offences committed by a person aged 18 or over in relation to a child.
Section 9 provides:
" 9 Sexual activity with a child
(1) A person aged 18 or over (A) commits an offence if –
(a) he intentionally touches another person (B),
(b) the touching is sexual, and
(c) either –
(i) B is under 16 and A does not reasonably believe that B is 16 or over, or
(ii) B is under 13.
(2) A person guilty of an offence under this section, if the touching involved –
(a) penetration of B's anus or vagina with a part of A's body or anything else,
(b) penetration of B's mouth with A's penis,
(c) penetration of A's anus or vagina with a part of B's body, or
(d) penetration of A's mouth with B's penis,
is liable, on conviction on indictment, to imprisonment for a term not exceeding 14 years.
(3) Unless subsection (2) applies, a person guilty of an offence under this section is liable –
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 14 years."
Where the victim is under 13, section 9(2) reproduces the elements of the offence of rape of a child enacted by section 5. There is a similar overlap between sections 8 and 10. The reason for this unhappy drafting is that sections 9 to 12 were originally drafted so as to cover only sexual offences in relation to children aged 13 to 16, but it was then appreciated that this would enable a defendant to escape liability by proving that the victim was in fact under 13.
Section 13 provides as follows:
" 13 Child sex offences committed by children or young persons
(1) A person under 18 commits an offence if he does anything which would be an offence under any of sections 9 to 12 if he were aged 18.
(2) A person guilty of an offence under this section is liable –
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years."
The natural meaning of section 5
The actus reus of section 5 is vaginal, anal or oral sexual intercourse with a victim under 13, whether the victim consents or not. Under normal principles the prosecution would also have to prove the appropriate >mens rea, which would probably be absence of belief that the victim was over 12. In B (a minor) v Director of Public Prosecutions [2000] 2 AC 428 the House of Lords held that such mental element was a necessary ingredient of the offence of gross indecency with or towards a child under 14 under section 1(1) of the Indecency with Children Act 1960. As Lord Nicholls of Birkenhead held, however, at p. 464, the need for a mental element can be negatived by necessary implication, which "connotes an implication that is compellingly clear".
Such an implication arises in respect of section 5, as Mr Owen has accepted. It arises from the contrast between the express references to reasonable belief that a child is 16 or over in, for instance, section 9, and the absence of any such reference in relation to children under 13. Thus, on its actual meaning, section 5...
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