G v R

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 8July 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.

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:

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.

Sections 5 to 8 of the SOA enact offences committed where the victim is a child under 13.

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.

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 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 elementwas 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 creates an offence even if the defendant reasonably believes that the child is 13 or over.

If it is necessary to do so in order to make section 5 of the SOA compatible with the Convention, we are in no doubt that it is possible to ‘read down’ that section so as to require the prosecution to establish an absence of belief on the part of the defendant that the victim was 13 or over. The presumption that the statute complies with the Convention will, if necessary, trump the implication that would otherwise arise that section 5 enacts an absolute offence. Indeed, Professor John Spencer has suggested that there is a plausible argument that sections 5 to 8 of the SOA require mens rea as to the age of the victim as a matter of simple statutory interpretation, without any reliance on the effect of the Convention – see Crim. L.R. 2004 for May 347 at p. 353. All counsel were agreed that section 5 can, if necessary, be read down in this way so as to render it compliant with the Convention.

It follows that the issue, so far as Article 6.2 is concerned, is whether, if given its natural meaning, section 5 is in conflict with that Article, so that it must be read down.

Article 6 provides:

“1.

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…

2.

Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”

Mr Owen submits that an absolute offence is capable of infringing Article 6.2 if it is not ‘within reasonable limits’. He further submits that section 5, if given its natural meaning, does not fall within reasonable limits. This is because section 5 can have consequences which are wholly unreasonable. The section renders a fifteen year old, who has had sexual intercourse with a consenting twelve year old, whom he reasonably believed to be fifteen, liable to a conviction for rape of a child, carrying with it the stigma to which such a conviction gives rise, the notification obligation and a potential sentence of life imprisonment.

We shall defer considering whether these potential consequences of section 5 are inherently objectionable to the stage at which we consider Mr Owen’s arguments in relation to Article 8. For present purposes we shall assume that they are objectionable and consider whether, on this account, section 5 is incompatible with Article 6.2, giving that section its natural meaning.

Mr Johnson’s answer to Mr Owen’s submission is that article 6.2 imposes no fetter on the right of a state to enact and enforce a crime of strict liability. Article 6.2 is concerned with the procedural fairness of a trial, not with the substantive law that falls to be applied at the trial.

There is, as Mr Owen accepts, a considerable weight of jurisprudence that supports Mr Johnson's submission. He relies, however, on two decisions of the European Court of Human Rights (‘the Strasbourg Court’). The first is Salabiaku v France [1998] 13 EHRR 379. The applicant in that case had been convicted of breach of Article 414 of the French Customs Code, which provided:

“Any act of smuggling and any undeclared importation or exportation of goods falling within the category of goods which are prohibited …, on importation, …, shall be punishable by the confiscation of the contraband article, confiscation of the means of transport employed, confiscation of articles used to conceal the offence, a fine of not less than the value of the contraband article and not more than three times its value and a term of imprisonment of up to three months.”

The applicant had taken delivery at Roissy Airport of a locked trunk, which had been despatched from Zaire. The trunk proved to contain a large quantity of cannabis. The applicant claimed that he had thought that it was a trunk containing food, which had been despatched to him. Two days later just such a trunk, addressed to the applicant, was discovered in Brussels, having been sent to Paris, but gone astray. The applicant was none the less convicted. Article 392(1) of the Customs Code provided that, where possession was proved, ‘the person in possession …is deemed liable for the offence’. The applicant appears to have contended that he was convicted by reason of the application of this provision, and that the provision was one that infringed Article 6.1 and 6.2.

While the Paris Court of Appeal, upholding the court of first instance, had applied this presumption, it had recognised that it would have been open to him to establish by way of defence that he was exculpated by an event of force majeure, that is ‘an event beyond human control which could be neither foreseen nor averted’. The Court of Cassation dismissed the applicant’s appeal.

The Strasbourg Court drew a distinction between a provision of law creating strict liability and a provision enabling a presumption. As to the former it stated at paragraph 27:

“As the Government and the Commission have pointed out, in principle the Contracting States remain free to apply the criminal law to an act where it is not carried out in the normal exercise of one of the rights protected under the Convention and, accordingly, to define the constituent elements of the resulting offence. In particular, and again in principle, the Contracting States may, under certain conditions, penalise a simple or objective fact as such, irrespective of whether it results from criminal intent or from negligence. Examples of such offences may be found in the laws of the Contracting States.”

The court went on to observe, however, that the applicant was not convicted for mere possession of the illegally imported goods, but because this possession gave rise to a presumption that he was guilty of smuggling the goods. It went on to state in paragraph 28:

“Presumptions of fact or of law operate in every legal system. Clearly, the Convention does not prohibit such presumptions in principle. It does, however, require the Contracting States to remain within certain limits in this respect as regards criminal law. If, as the Commission would appear to consider, paragraph 2 of Article 6 merely laid down a guarantee to be respected by the courts in the conduct of legal proceedings, its requirements would in practice overlap with the duty of impartiality imposed in paragraph 1. Above all, the national legislature would be free to strip the trial court of any genuine power of assessment and deprive the presumption of innocence of is substance, if the words ‘according to law’ were construed exclusively with reference of domestic law. Such a situation could not be reconciled with the object and purpose of Article 6, which, by protecting the right to a fair trial and in particular the right to be presumed innocent, is intended to enshrine the fundamental principle of the rule of law.”

The court then considered the nature of the presumption imposed by Article 392(1). It observed:

“Even though the ‘person in possession’ is ‘deemed liable for the offence’ this does not mean that he is left entirely without a means of defence. The competent court may accord him the benefit of extenuating circumstances, and it must acquit him if he succeeds in establishing a case of force majeure.

This last possibility is not to be found in the express wording of the Customs Code, but has evolved from the case-law of the courts in a way which moderates the irrebuttable nature previously attributed by some academic writers to the presumption laid down in Article 392(1).”

The court went on to find that there was no infringement of Article 6 because (i) the presumption was rebuttable on proof of force majeure and (ii) on the facts of the particular case, the court had inferred from the ‘fact of possession a presumption which was not subsequently rebutted by any evidence of an event responsibility for which could not be attributed to the perpetrator of the offence or which he would have been unable to avoid’. Moreover the French court had identified a certain ‘element of intent’ even though they were under no obligation to do so in order to convict the appellant.

Salabiaku was decided, in accordance with the practice of the Strasbourg Court, on its own particular facts. In so far as principles can be deduced from the decision, they might seem to be as follows:

Mr Owen’s argument is, on analysis, founded on the third principle. The offence in Salabiaku was importing prohibited goods. Had French law imposed an irrebuttable presumption that a person in possession of imported prohibited goods was responsible for their importation this might have been seen as a flagrant violation of the presumption of innocence. But there would have been another way of looking at the matter. It could have been said that French law made possession of imported prohibited goods an absolute offence. The difference between the two viewpoints is one of form, not of substance. From this it can be argued that the court in Salabiaku indicated that legislation which creates an absolute offence can violate article 6.

We do not consider it right to draw this conclusion from the reasoning of the court in Salabiaku. An absolute offence may subject a defendant to conviction in circumstances where he has done nothing blameworthy. Prosecution for such an offence and the imposition of sanctions under it may well infringe articles of the Convention other than article 6. The legislation will not, however, render the trial under which it is enforced unfair, let alone infringe the presumption of innocence under article 6.2.

We recognise that the above proposition is perhaps not all that easy to reconcile with comments of Lord Bingham of Cornhill in the speech with which the majority of the House agreed in Attorney General’s Reference (No 4 of 2002) [2004] UKHL 43; [2005] 1 AC 264 at paragraphs 49 to 51. That appeal raised the question of the interpretation of section 11(2) of the Terrorism Act 2000. That section provided, in so far as material:

“11 Membership

(1)

A person commits an offence if he belongs or professes to belong to a proscribed organisation.

(2)

It is a defence for a person charged with an offence under subsection (1) to prove – (a) that the organisation was not proscribed on the last (or only) occasion on which he became a member or began to profess to be a member, and (b) that he has not taken part in the activities of the organisation at any time while it was proscribed.”

The issue was whether the burden of proof on the defendant was a legal or an evidential burden. It was common ground that, on the natural interpretation of the section, the burden was a legal burden. The majority held, however, that in order to make the section compliant with Article 6.2 of the Convention it was necessary to read section 11(2) as imposing an evidential burden. The relevant passage of Lord Bingham’s speech was as follows:

“49.

Recognition of the risk that subsection (1) might cover conduct which was not blameworthy or such as properly to attract criminal sanctions may very well have led Parliament to provide the defence enacted in subsection (2). The effect of this subsection is not, in my opinion, to make participation in the activities of the organisation while proscribed an ingredient of the offence. …

50.

There can be no doubt that Parliament intended section 11(2) to impose a legal burden on the defendant, since section 118 of the Act lists a number of sections which are to be understood as imposing an evidential burden only, and section 11(2) is not among those listed. There is also, in my opinion, no doubt that subsections (1) and (2) are directed to a legitimate end: deterring people from becoming members and taking part in the activities of proscribed terrorist organisations. The crucial question is therefore whether, as the Court of Appeal held, imposition of a legal burden on a defendant in this particular situation is a proportionate and justifiable legislative response to an undoubted problem. To answer this question the various tests identified in the Strasbourg jurisprudence as interpreted in the United Kingdom authorities fall to be applied.

51.

A number of considerations lead me to a conclusion different from that reached by the Court of Appeal. They are these.

(1)

As shown in paras [47] and [48] above, a person who is innocent of any blameworthy of properly criminal conduct may fall within section 11(1). There would be a clear breach of the presumption of innocence, and a real risk of unfair conviction, if such persons could exonerate themselves only by establishing the defence provided on the balance of probabilities. It is the clear duty of the courts, entrusted to them by Parliament, to protect defendants against such a risk. It is relevant to note that a defendant who tried and failed to establish a defence under section 11(2) might in effect be convicted on the basis of conduct which was not criminal at the date of commission.”

This passage might suggest that a statute which, by imposing strict liability, renders a defendant liable to conviction despite the fact that he is innocent of any blameworthy conduct may result in an infringement of Article 6. It should not be so read. It was dealing with the standard of proof required at a trial in order to establish a statutory defence and should not be interpreted as having wider significance. The presumption of innocence is a presumption that one is not guilty of whatever may be the elements of a criminal offence. One must not confuse innocence of a criminal offence with innocence of blameworthy conduct. This is not, of course, to decry the normal presumption of statutory interpretation that mens rea is a necessary ingredient of a criminal offence.

There is a weight of both Strasbourg and domestic authority for the proposition that Article 6 does not guarantee any particular content of civil rights. It suffices to refer to paragraph 3 of the speech of Lord Bingham in Matthews v Ministry of Defence [2003] UKHL 4; [2003] 1AC 1163 at paragraph 3 and the authorities there cited.

So far as criminal law is concerned, the proposition that we have expressed at paragraph 33 abovereceives support from a number of decisions of the Divisional Court and the Court of Appeal. In Barnfather v Islington Education Authority [2003] EWHC 418; [2003] 1 WLR 2318 the Divisional Court was concerned with whether an offence of strict liability under section 444(1) of the Education Act 1996 was compatible with Article 6.2. Over a three day hearing Mr Owen advanced the arguments that he has advanced, more economically, before us in support of a claim of incompatibility. The court rejected them in carefully reasoned judgments, which we would endorse.

In R v Daniel [2002] EWCA Crim 959, Auld LJ remarked, obiter,:

“34.

In determining the essentials of an offence, courts should also keep in mind the distinction between the procedural guarantees provided by Article 6(2) and the substantive elements of the offence, a distinction that the Strasbourg Court has now acknowledged in the civil sphere in Z & Ors v United Kingdom [2002] 34 EHRR 07, at 138, paras 100-101, when reviewing its decision in Osman v United Kingdom [2000] 29 EHRR, at paras 138-139. As Paul Roberts has argued, in an article entitled The Presumption of Innocence Brought Home? Kebilene [2002] 118 LQR 41, at 50:

“Article 6(2) has no bearing on the reduction or elimination of mens rea requirements, and is therefore perfectly compatible with offences of strict or even absolute liability.”

In R v Gemmell [2002] EWCA Crim 1992; [2003] Cr App R 23 this court dismissed the argument that a direction that, for the purposes of recklessness, two boys were to be judged by the standard of the reasonable man, infringed Article 6. Dyson LJ held, at paragraph 33:

“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. It may, however, be engaged by other articles of the ECHR.”

In R v Muhamad [2002] EWCA Crim 1856 at paragraphs 32 and 33, this court remarked that, so far as the Convention was concerned, there was nothing objectionable in principle with strict liability offences.

The only authority which lends support to Mr Owen’s argument is the decision on admissibility of the Strasbourg Court in Hansen v Denmark (application 28971/95). The complaint was that the strict liability of the employer of a lorry driver arising out of the failure by the driver to observe maximum driving periods was contrary to Article 6. The court, citing Salabiaku, dismissed the application on its merits rather than holding that the facts were not capable of engaging Article 6. This decision is too insubstantial a foundation to support Mr Owen’s argument, which we consider to be manifestly unsound in principle and in conflict with the jurisprudence to which we have referred above.

For these reasons, we reject the submission that section 5 of the SOA, on its natural interpretation, is incompatible with Article 6. There is no requirement to read it down.

Mr Owen’s argument in relation to Article 8 is based largely on the contrast between the effect on a child of a conviction under section 5 and that of a conviction under section 13 of the SOA. A conviction under section 5 labels the child a rapist, subjects him to notification requirements as a sex offender and to a maximum sentence of detention for life. Conviction under section 13 labels a child one who has had sexual activity with another child, does not subject him to notification requirements unless sentenced to at least 12 months imprisonment and is subject to a maximum sentence of five years detention.

Mr Owen’s starting point is that it is inappropriate to prosecute a child under section 5 where consensual sexual intercourse has taken place. It may not be appropriate to prosecute the child at all and, if it is, the prosecution should be brought under section 13. In support of this submission Mr Owen relies on a statement made by Lord Falconer of Thoroton during the passage of the Bill on 1 April 2003 (Hansard vol 646, cols 1176-77) to the effect that where sexual activity between minors took place by mutual consent prosecution would not be the inevitable outcome and one would not expect the full weight of the criminal law to be used against them. He also relies on the following comment of the authors of Rook & Ward on Sexual Offences (2004) at paragraph 3.9:

“it is hardly consonant with the rule of law, and arguably Article 8 of the ECHR, to create criminal offences in such broad terms and then rely on the executive discretion of prosecutors to ensure that offences are not used oppressively.”

Mr Owen accepts that, because the complainant alleged that the appellant made her submit to sexual intercourse against her will, it was initially appropriate for the prosecution to charge the appellant under section 5. He submits, however, that that charge ceased to be appropriate once the prosecution had informed the court that they were prepared to accept the appellant’s basis of plea. From that point it was no longer proportionate to proceed with a charge under section 5. By doing so the court subjected the appellant to consequences so severe that the interference with his rights under Article 8.1 could not be justified under article 8.2.

We accept the possibility that prosecution of a child under section 5 rather than section 13, or indeed prosecution at all, in relation to consensual sexual intercourse may, on the particular facts, produce consequences that amount to an interference with the child’s Article 8.1 rights that are not justified under Article 8.2. Where, however, as here no criticism can be made of an initial charge of breach of section 5, we do not consider that it follows that the judge must necessarily substitute an alternative charge of breach of section 13 if it transpires that the sexual activity was, or must be treated as, consensual. In some cases this will not occur until after a Newton hearing.

The judge’s sentencing powers in relation to the conviction of a child under section 5 range from absolute discharge to detention for life. If it transpires that the facts of the offence are, or must be treated as, less serious than those that originally justified the charge, the judge should normally be able, by an appropriate sentence, to ensure that there is no interference with the defendant’s Article 8 rights that cannot be justified under Article 8.2. In the present case we do not consider that the judge infringed Article 8 by proceeding to sentence the appellant under section 5. It follows that the appeal against conviction is dismissed. It remains to consider, however, whether the sentence that the judge imposed was appropriate.

In R v Corran and other appeals [2005] EWCA Crim 192 the Vice President, in giving the judgment of this court, gave some ‘non-prescriptive guidance’ to sentencing in respect of the new offences created by the SOA. The following comments are particularly pertinent:

“6.

Against that background, we turn to the offence of rape of a child under 13, contrary to section 5 of the Act. We say, at once, that no precise guidance can be given. The appropriate sentence is likely to lie within a very wide bracket, depending on all the circumstances of the particular offence. There will be very few cases in which immediate custody is not called for, even in relation to a young offender because the purpose of the legislation is to protect children under 13 from themselves, as well as from others minded to prey upon them.”

“8.

Although absence of consent is not an ingredient of the offence, presence of consent is, in our judgment, material in relation to sentence, particularly in relation to young defendants. The age of the defendant, of itself and when compared with the age of the victim, is also an important factor. A very short period of custody is likely to suffice for a teenager where the other party consents. In exceptional cases, of which there is one before this Court, a non-custodial sentence may be appropriate for a young defendant. If the offender is much older than the victim a substantial term of imprisonment will usually be called for. ”

The exceptional case to which the judge referred was of a 20 year old youth who had been deceived by a precocious 12 year old into believing that she was 16. She invited him to have sexual intercourse with her, was not a virgin and found the act pleasurable. He used a condom. When he discovered her true age he experienced genuine remorse. The Vice President observed that, apart from the difference in age, every conceivable feature of mitigation was present and that the case might have been dealt with by a non custodial penalty.

In the present case the judge observed that he sentenced on the basis of plea advanced and that there was substantial mitigation. On the basis of plea he was correct. Mr Owen has urged the following by way of mitigation. The appellant’s youth, the fact that this was a single incident, the fact that the complainant consented, the fact that the appellant thought that the complainant was fifteen as a result of her misleading him, the fact that the appellant used contraception, that he has no previous convictions and that he has substantial personal mitigation.

The judge remarked that it was the policy of Parliament to take these things seriously. This remark may have been influenced by the gravity of the maximum penalty for breach of section 5 and does not suggest that the judge took the view, as we think that he should have done, that, having regard to the basis of plea, this was an offence that fell properly within the ambit of section 13 rather than section 5.

The appellant has been in custody for approximately 5 months, having been granted bail when he was granted permission to appeal against sentence. In all the circumstances we think that the appropriate course is to quash his sentence and to replace it with a conditional discharge for a period of 12 months from today. Provided he commits no offence during that period, the notification requirement will end with it and he will not thereafter be deemed to have had a conviction.