There was no breach of the rights of a boy aged 15 to a fair trial or respect for privacy, guaranteed by articles 6 and 8 of the European Convention on Human Rights, to convict him of rape of a child under 13 where, on the basis on which his guilty plea had been accepted, he could have been charged with a less serious offence.
The House of Lords so held, Lord Hope and Lord Carswell dissenting in part and as to the result, when dismissing an appeal by G, a minor, from the dismissal by the Court of Appeal (Lord Phillips of Worth Matravers, Lord Chief Justice, Mr Justice Andrew Smith and Mr Justice Wilkie) (The Times May 9, 2006; [2006] 1 WLR 2052) of his appeal against conviction for rape of a child, contrary to section 5 of the Sexual Offences Act 2003, following his plea of guilty at the Central Criminal Court (Judge Hawkins, QC) on April 20, 2005.
The complainant, a girl aged 12, had said in a video-recorded interview that the sexual intercourse had not been consensual but had been terrified of attending court and had been content that the prosecution accept the basis on which the appellant’s plea of guilty had been made.
Mr Tim Owen, QC and Ms Rebecca Trowler for G; Mr David Perry, QC and Ms Melanie Cumberland for the Crown; Mr Jeremy Johnson for the Secretary of State for the Home Department, intervening.
LORD HOFFMANN said that for the purpose of sentence, the prosecution had accepted the appellant’s version of the facts, namely, that he was 15 at the time of the offence, the complainant had consented to intercourse and she had told him that she was 15. Judge Hone, QC, sentenced G on July, 8, 2005, to a 12-month detention and training order.
He appealed on the grounds that: (i) the conviction violated his right to a fair trial and the presumption of innocence under article 6, because it was an offence of strict liability, and (ii) 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.
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: (i) Might a criminal offence of strict liability violate article 6.1 and/ or 6.2? (ii) Was it compatible with a child’s rights under article 8 to convict him of rape contrary to section 5 where the agreed basis of plea established that his offence fell properly within the ambit of section 13?
The mental element of the offence under section 5 did not require that the accused had to have known that the other person was under 13.
The policy of the legislation was to protect children. If you had sex with someone who was on any view a child or young person, you took your chance on exactly how old they were. To that extent the offence was one of strict liability and it was no defence that the accused believed the other person to be 13 or over.
Article 6.1 provided that in the determination of his civil rights or any criminal charge, everyone was entitled to a fair and public hearing and article 6.2 provided that everyone charged with a criminal offence would be presumed innocent until proved guilty according to law.
It was settled law that article 6.1 guaranteed fair procedure and the observance of the principle of the separation of powers but not that either the civil or criminal law would have any particular substantive content: see Matthews v Ministry of Defence (The Times February 14, 2003; [2003] 1 AC 1163).
Likewise, article 6.2 required him to be presumed innocent of the offence but did not say anything about what the mental or other elements of the offence should be.
In R v Gemmell ([2003] 1 Cr App R 343, paragraph 33), Lord Justice Dyson 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.” His Lordship endorsed those remarks.
The other ground of appeal was that the conviction violated the appellant’s right of privacy under article 8. That was, on the face of it, an astonishing proposition. Was it really being suggested that a young person under 18 had a human right to have undisturbed sexual intercourse with a child under 13? If anything was likely to bring human rights into disrepute, it was such a claim.
When one examined the argument for the appellant, however, he was not saying any such thing. He was saying that, as he was only 15 at the time of the offence, the Crown had acted unduly harshly by prosecuting him under section 5 rather than under section 13, which dealt with sexual offences committed by persons under 18 and carried a maximum prison penalty of five years.
Assuming that to be right, the case had, in his Lordship’s opinion, nothing to do with article 8 or human rights. Article 8 conferred a qualified right that the state would not interfere with what you did in your private or family life. Any interference with your conduct by the state had to be necessary and proportionate for one of the purposes mentioned in article 8.2.
But you either had such a right or you did not. If the state was justified in treating your conduct as unlawful, for example, because you were beating your wife or sexually abusing children, article 8 did not generate an additional right that the state would not be too hard on you for whatever you had done because it happened to have been done at home.
In his Lordship’s opinion, therefore, the answers to the certified questions were “No” and “Yes” respectively. That left only the question of whether in the particular circumstances of the case, it had been an abuse of process for the Crown to prosecute under section 5.
That was not a question which had been certified. For what it was worth, his Lordship agreed with the Court of Appeal that the Crown had not been 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 had decided to use that description because children under 13 could not validly or even meaningfully consent to sexual intercourse.
Lady Hale delivered a concurring opinion; Lord Mance delivered an opinion concurring in the result; Lord Hope and Lord Carswell delivered opinions concurring as to article 6 but dissenting as to whether there was a breach of article 8 and as to the result.
Solicitors: Alexander & Partners, Harlesden; Crown Prosecution Service; Treasury Solicitor.
From The Times, June 20, 2008
House of Lords Published June 20, 2008 Regina v G
Before Lord Hoffmann, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Carswell and Lord Mance Speeches June 18, 2008
