| CRIME — Sexual offences — Rape of child under 13 — Boy aged 15 pleading guilty on basis of consensual sexual intercourse with girl he believed to be 15 — Whether absolute offence conflicting with presumption of innocence — Whether prosecution disproportionate interference with right to private life — Human Rights Act 1998 (c 42), Sch 1, Pt I, arts 6, 8 — Sexual Offences Act 2003 (c 42), ss 5, 13
Regina v G (Secretary of State for the Home Department intervening) [2008] UKHL 37; [2008] WLR (D) 199
HL(E): Lord Hoffmann, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Carswell and Lord Mance: 18 June 2008
It was not incompatible with a child’s rights under arts 6 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms to convict him of the offence of “rape of a child under 13”, pursuant to s 5 of the Sexual Offences Act 2003, in circumstances where the agreed basis of his plea of guilty established that his offence could fall within the ambit of s 13, covering child sex offences committed by a person under 18.
The House of Lords so held (Lord Hope of Craighead and Lord Carswell dissenting in part and as to the result) in dismissing an appeal by the defendant, a minor, from the dismissal by the Court of Appeal (Lord Phillips of Worth Matravers CJ, Andrew Smith and Wilkie JJ) [2006] EWCA Crim 821; [2006] 1 WLR 2052 of his appeal against his conviction for rape of a child under 13, contrary to s 5 of the 2003 Act, following his plea of guilty, at the Central Criminal Court before Judge Hawkins QC, on 20 April 2005.
LORD HOFFMANN said that the mental element of the offence under s 5 was that penetration had to be intentional but there was no requirement 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. Art 6(1) guaranteed fair procedure but not that either the civil or criminal law would have any particular substantive content. Likewise, art 6(2) required an accused to be presumed innocent of the offence but did not say anything about what the mental or other elements of the offence should be. The content and interpretation of domestic substantive law was not engaged by art 6. The other ground of appeal was that the conviction violated the appellant's right of privacy under art 8. He said that the Crown had acted unduly harshly by prosecuting him under s 5 rather than under s 13. Assuming that to be right, the case had nothing to do with art 8. Art 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 art 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, art 8 did not generate an additional right. If the offence in question was a justifiable interference with private life, that was an end of the matter.
BARONESS HALE delivered a concurring opinion. LORD MANCE delivered an opinion concurring in the result. LORD HOPE and LORD CARSWELL delivered opinions concurring as to art 6 but dissenting as to whether there was a breach of art 8 and as to the result.
|
