R v McNally

JurisdictionEngland & Wales
CourtCourt of Appeal (Criminal Division)
JudgeLord Justice Leveson
Judgment Date27 June 2013
Neutral Citation[2013] EWCA Crim 1051
Docket NumberCase No: 201302101C2
Date27 June 2013

[2013] EWCA Crim 1051



His Honour Judge Patrick


Royal Courts of Justice

Strand, London, WC2A 2LL


Lord Justice Leveson

Mr Justice Kenneth Parker


Mr Justice Stewart

Case No: 201302101C2

Justine McNally
The Queen

Tom Wainwright and Shahida Begum (instructed by Levenes, London) for the Appellant

John McGuinness Q.C. (instructed by CPS) for the Respondent

Lord Justice Leveson

On 4 December 2012, in the Crown Court at Wood Green before His Honour Judge Patrick, this appellant (then 19 years of age) pleaded guilty to six counts of assault by penetration contrary to s. 2 of the Sexual Offences Act 2003; a further allegation was ordered to remain on the file. On 21 March, with the benefit of detailed reports, she was sentenced on each count to 3 years detention in a young offender institution; a restraining order was made for three years which operated for the benefit of the complainant and her mother.


With the leave of the single judge, the appellant appeals against both conviction and sentence. On 11 June 2013, at the conclusion of the hearing, we dismissed the appeal against conviction and allowed the appeal against sentence, substituting for the term of 3 years detention, a term of 9 months detention in a young offender institution suspended for two years, together with a suspended sentence supervision order. In the light of the issues raised in the case, we decided to put our reasons into writing: these we now provide.


The facts are undeniably unusual. The appellant (who was born on 19 April 2004) lives in Scotland. She met M on the internet through the social networking game "Habbo"; she used a male avatar "S". At the time they first made contact, she was aged 13 years. M (who lives in London) was a year younger (aged 12–13); she believed that she was communicating with a boy called "SH" from Glasgow.


Over the following 3 1/2 years, the internet relationship developed and M began to refer to the appellant as her boyfriend. They talked (mainly by the online messenger service, MSN) about getting married and having children. The relationship extended into mobile phone conversations and M also saw "S" on a web cam.


As the couple began to get older they became interested in each other sexually and were very interested, to the point of exhibiting jealousy, in the other's relationships with other people. This culminated in each ending their relationships with others and agreeing to have an exclusive romantic relationship. The couple would have phone sex and speak about what they wanted to do to each other sexually. "S" would talk about what he wanted to do to her with "it" and "putting it in" which the complainant took to mean "his" penis.


Arrangements were made for "S" to come down to London to see M just after her 16 th birthday in March 2011: it is unlikely that the passage of this birthday was a coincidence. M's mother did not want 'him' to stay at their house and so they arranged for the appellant to stay at the home of a family friend.


"S" was collected from Euston Station by M and her mother. At the time the appellant was aged 17 years and she presented as a boy wearing what the complainant thought was gothic clothing (although the appellant denies wearing such clothing). Under her trousers, she was also wearing a strap-on dildo which resembled a penis.


Over the following months, the appellant visited the complainant on four occasions in total. On the first occasion, they watched a film together and kissed. They went to a bedroom where it was dark and the appellant began to rub M's vagina with her fingers and gave her oral sex. The complainant then went to get condoms which she had purchased intending that they have intercourse. She was nearly naked but the appellant kept clothing on: it was difficult to see because it was so dark. M offered to give the appellant oral sex but the appellant declined. It was alleged (this being the count that was denied and not pursued) that M was penetrated with the dildo.


On the second visit, there were lots of occasions of oral penetration and occasions of digital penetration, always of M. They were apart so much that when they were together they wanted to engage in sexual activity all the time. On the third visit, although there were difficulties in the relationship, they had a party. They still talked about having sex but the appellant was not interested in trying again.


However on the fourth and final visit in November 2011, the appellant was confronted by M's mother about really being a girl. When M was told by her mother, she was devastated. The appellant then came clean and also showed her a Facebook profile in her true name. M felt physically sick. She told the appellant if she had told her from the start she wouldn't have judged her and things might have been different, but she was mainly in shock and asked lots of questions. The appellant kept talking about wanting a sex change and M said the appellant had lied to her for four years and all that time she had been calling her S.


The relationship ended but there was still some limited communication between the appellant and M. On 7 November 2011, the complainant's mother made a complaint to the appellant's school (which was also attended by a real boy called SH) and the police became involved when the appellant admitted to her head teacher that sexual acts had taken place. On 30 November 2011, M gave a full account to police of these offences. Although one or two answers might be said to be equivocal, she said that she did not know that "S" was a girl. She considered herself heterosexual and had consented to the sexual acts because she believed she was engaging in them with a boy called S.


The account which the appellant provided to the police in a prepared statement was to the effect that she met M through the internet, pretending to be "S" because it made her more comfortable. She suggested that M found out about her real identity as early as December 2009 and they had a big argument. They eventually started speaking again and then met up. She expressed the view that she thought that the complainant knew or suspected that the appellant was a girl. That suspicion would be inconsistent with the suggestion of an argument when M found out; neither would it be consistent with M's purchase of condoms before the first visit and preparation for it in 2011.


In this court, Mr Tom Wainwright and Ms Shahida Begum, for the appellant, advance three grounds of appeal against conviction that flow into each other. They are (1) that the appellant's legal advisors failed to advise her correctly on matters that went to the heart of her plea because (2) the elements of the offence were not made out and the appellant could not have been convicted with the result that (3) the appellant's plea was equivocal.


It is appropriate to deal with these grounds in a slightly different order. If, on any version of the facts, the elements of the offence were not made out, this conviction would undeniably be unsafe and would fall to be quashed even though the appellant had pleaded guilty: see R v McReady and Hurd [1978] 1 WLR 1376. In those circumstances, the legal advice would also be undermined. An answer adverse to the appellant is not conclusive in relation to the remaining grounds because even if the offence can be made out, that does not necessarily mean that the appellant was correctly advised. The first and third issues, however, do go together. It is not suggested that the plea entered in court was equivocal and if the appellant was correctly advised and had determined to plead guilty, the basis for setting it aside would not be made out.


Against that background we first consider the offence. Section 2 of the Sexual Offences Act 2003 ("the Act") provides:

"(1) A person (A) commits an offence if —

(a) he intentionally penetrates the vagina … of another person (B) with a part of his body or anything else,

(b) the penetration is sexual,

( c) (B) does not consent to the penetration, and

(d) (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."


Of particular significance in this appeal, s. 74 of the Act provides that:

"For the purposes of this Part, a person consents if he agrees by choice and has the freedom and capacity to make that choice."


A number of evidential presumptions are contained in s. 75 of the Act: none are relevant to the circumstances that here arise. Conclusive presumptions rebutting consent and belief in consent, however, are contained in s. 76 of the Act. The circumstances in which these presumptions operate are (a) intentional deceit of the complainant as to the nature or purpose of the relevant act; and (b) intentionally inducing the complainant to consent by impersonating a person known personally to the complainant.


This last provision has been considered in a number of decisions (in particular, R v Jheeta [2007] 2 Cr App R 34, R v Devonald [2008] EWCA Crim 527 and R v B [2013] EWCA Crim 823). Whether and if so how these cases fit together is irrelevant for the purposes of this appeal: it was never suggested that the conclusive presumptions applied and the relevance of the provision is restricted to the impact on the construction of s. 74. As Hallett LJ said in respect of the facts in B (at para. 24) the court "need look no further than the...

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4 cases
  • R (oao “Monica”) v Director of Public Prosecutions
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 14 December 2018
    ...R v Jheeta [2008] 1 WLR 2582, Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin), R(F) v DPP [2014] QB 581 and R v McNally [2014] QB 593. 34 It was common ground that the state of the law at the end of the nineteenth century was that deception operated to negate or vitiate con......
  • R v Jason Lawrance
    • United Kingdom
    • Court of Appeal (Criminal Division)
    • 23 July 2020
    ...within her vagina. In law, this combination of circumstances falls within the statutory definition of rape.” 32 In R v. McNally [2014] QB 593 a teenage woman impersonated a teenage man and secured the consent of another young woman on that basis to engage in digital penetrative activity. S......
  • R v Christopher Matt
    • United Kingdom
    • Court of Appeal (Criminal Division)
    • 22 January 2015
    ...some sexual pleasure, ensuring at least mixed purposes. This may be a difficult argument given the decision of this court in McNally [2013] 2 Cr.App.R 28, where a girl engaged in sexual acts with a woman, believing that the woman was a man, and where the court held that deception as to gend......
  • R v Shohan Miah
    • United Kingdom
    • Court of Appeal (Criminal Division)
    • 17 December 2013
    ...which would have created a duty of care, as indicated by this court in R v Thompson [2012] EWCA (Crim) 1727 at paragraph 16 (see also R v McNally [2013] EWCA (Crim) 1051 at paragraphs 49 and 50). 22 The judge instead correctly, in our view, concluded that the categories, with a range of 11 ......
14 books & journal articles
  • The Emotional Dynamics of Consent
    • United Kingdom
    • Journal of Criminal Law, The Nbr. 79-6, December 2015
    • 1 December 2015
    ...in classical liberal notions of subjectivity and power,60are totally inadequate inAssange vSweden[2011] EWHC 2849 (Admin); McNally [2013] EWCA Crim 1051; Ormerodand Laird, above n. 10 at 837–844.42. Sexual Offences Act 2003, s. 76(2)(b); Ormerod and Laird, above n. 10 at 844.43. Not, it sho......
  • Ten years on
    • United Kingdom
    • Journal of Criminal Law, The Nbr. 79-1, February 2015
    • 1 February 2015
    ...[2011] EWHC 2849 (Admin); (2011) 108(44) LSG 17.56. Bingham [2013] 2 Cr App R 29 (sometimes referred to as RvB) at [20].57. RvMcNally [2013] 2 Cr App R 28.58. (2011) 108(44) LSG 17.59. [2013] 2 Cr App R 21.60. Above n. 54.61. The appeal againstthe first trial where s. 76 was used isBingham,......
  • Conditional Consent and Purposeful Deception
    • United Kingdom
    • Journal of Criminal Law, The Nbr. 82-2, April 2018
    • 1 April 2018
    ...(2004)5 Criminal Law Review 328–46 at 342. 54. Knight, above n. 9 at 140.55. Sharpe, above n. 47 at 211.56. R v Mcnally (Justine) [2013] EWCA Crim 1051.57. McCartney and Wortley, above n. 13 at Even racists, surely, are entitled to make their own decisions as to those to whom they wish to g......
  • Why has the Concept of Consent Proven So Difficult to Clarify?
    • United Kingdom
    • Journal of Criminal Law, The Nbr. 80-2, April 2016
    • 1 April 2016
    ...been confirmed asbeing the proper approach to s. 76, i.e. that the conclusive presumptions will only apply in the rarest76. RvMcNally [2013] EWCA Crim 1051, [2014] QB 593.77. K. Laird, ‘Rapist or Rogue?’ [2014] Crim LR 492 at 505.78. Law Commission, above n. 67 at para. 5.27.79. J. Herring,......
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