R v Stephen Devonald
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LEVESON |
| Judgment Date | 18 February 2008 |
| Neutral Citation | [2008] EWCA Crim 527 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No: 200705931/D1 |
| Date | 18 February 2008 |
[2008] EWCA Crim 527
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Lord Justice Leveson
Mr Justice Hedley
Sir Peter Cresswell
No: 200705931/D1
Miss C Howell appeared on behalf of the Applicant
Miss A Rafferty & Mr J Goodier appeared on behalf of the Crown
On 15th October 2007 in the Crown Court at Peterborough, following a change of plea consequent upon a ruling by His Honour Judge Coleman, this applicant admitted causing a person to engage in sexual activity without consent. He was later sentenced to a community sentence with supervision and disqualified from working with children. His application for leave to appeal against conviction has been referred by the Registrar to the Full Court.
The facts are straightforward and not in dispute. The applicant's 16-year-old daughter had been in a relationship with the complainant, a 16-year-old boy. To the distress of his daughter, that relationship had broken down and the applicant, then 37 years of age, assumed the identity of a 20-year-old female, �Cassey�, and corresponded with the complainant through the Internet. They struck up a friendship and an analysis of the Internet exchanges reveals how �Cassey� set the tone of the conversations which quickly turned to sex. On 29th August, Cassey asked the complainant: �How is your cock today?� and he was asked to show it through a web cam. He does so. He was then encouraged and persuaded, twice, to masturbate in front of a web cam.
The prosecution case was that the complainant was clearly masturbating to please Cassey and for her sexual gratification; a study of the on line exchanges would support that conclusion. It is further alleged that he would never have done have so had he known that Cassey was not a 20-year-old female interested in sexual activity over the net but rather the 37 year old father of his former girlfriend. For his part, in a basis of plea compiled after the learned judge's ruling of law, the applicant stated that his motive was to teach the complainant a lesson because he felt that the complainant had mistreated his daughter. In other words, it was deliberately to embarrass him. The applicant denied knowing that, for reasons it is not necessary to report in this judgment, the complainant was particularly vulnerable.
The issue upon which the learned judge ruled and which forms the basis of this appeal, because it caused the applicant to change his pleas, concerns the issue of consent. Setting the scene, section 4(1) of the Sexual Offences Act 2003 (�the Act�) provides that:
�(1) A person (A) commits an offence if�
(a) he intentionally causes another person (B) to engage in an activity.
(b) the activity is sexual.
( c) B does not consent to engaging in the activity, and
(d) A does not reasonably believe that B consents.�
There was no issue that the applicant had intentionally caused the complainant to indulge in sexual activity of masturbation. The question was: did he consent so to do?
To understand the meaning of �consent� it is necessary to go to sections 75 and 76 of the Act. Section 75 deals with evidential presumptions about consent and concerns consent induced by violence, fear of violence while detained, asleep or unconscious or obtained in circumstances where, because of physical disability, the complainant would not have been able to communicate consent or because consent followed the administration without consent of a stupefying or overpowering substance. None of these circumstances arise for specific decision in this case. Section 76, however, provides:
��it is to be conclusively presumed�
(a) that the complainant did not consent to the relevant act, and.
(b) that the defendant did not believe that the complainant consented to the relevant act.
(2) The circumstances are that�
(a) the defendant...
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