R v G (Appellant) (On appeal from the Court of Appeal (Criminal Division)), (2008)

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R v G (Appellant) (On appeal from the Court of Appeal (Criminal Division)), (2008)

HOUSE OF LORDS

SESSION 2007-08

[2008] UKHL 37

on appeal from: [2007] EWCA Crim 821

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

R v G (Appellant) (On appeal from the Court of Appeal (Criminal Division))

Appellate Committee

Lord Hoffmann

Lord Hope of Craighead

Baroness Hale of Richmond

Lord Carswell

Lord Mance

Counsel

Appellants:

Tim Owen QC

Rebecca Trowler

(Instructed by Alexander & Partners)

Respondents:

David Perry QC

Melanie Cumberland

(Instructed by Crown Prosecution Services)

Intervener

Jeremy Johnson

(Instructed by Treasury Solicitors)

Hearing date:

5 MARCH 2008

ON

WEDNESDAY 18 JUNE 2008

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

R v G (Appellant) (on Appeal from the Court of Appeal (Criminal Division))

[2008] UKHL 37

LORD HOFFMANN

My Lords,

1.  On 20 April 2005 the appellant pleaded guilty to the offence of rape of a child under 13, contrary to section 5 of the Sexual Offences Act 2003:

(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.

2.  For the purpose of sentence, the prosecution accepted the appellant’s version of the facts, namely, that the accused was 15 at the time of the offence, the complainant had consented to intercourse and she had told him that she was 15. On 8 July 2005 Judge Hone sentenced him to a 12 month detention and training order. The appellant appealed on the grounds that (1) the conviction violated his right to a fair trial and the presumption of innocence under article 6 of the Convention, because it was an offence of strict liability, and (2) 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, which deals with sex offences committed by persons under 18. 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:

(1)  May a criminal offence of strict liability violate article 6(1) and/or 6(2)…?

(2)  Is it compatible with a child’s rights under article 8…to convict him of rape contrary to section 5…in circumstances where the agreed basis of plea establishes that his offence fell properly within the ambit of section 13…?”

3.  The mental element of the offence under section 5, as the language and structure of the section makes clear, is that penetration must be intentional but there is no requirement that the accused must have known that the other person was under 13. The policy of the legislation is to protect children. If you have sex with someone who is on any view a child or young person, you take your chance on exactly how old they are. To that extent the offence is one of strict liability and it is no defence that the accused believed the other person to be 13 or over.

4.  Article 6(1) provides that in the determination of his civil rights or any criminal char...

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