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:
Respondents:
Tim Owen QC
David Perry QC
Rebecca Trowler
Melanie Cumberland
(Instructed by Alexander & Partners)
(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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
R v G [2008] UKHL 37
Case
[2008] UKHL 37
Decision Date
CaseChat Overview and Summary
The House of Lords heard an appeal against conviction and sentence brought by an appellant who had been convicted of raping a child under 13 contrary to section 5 of the Sexual Offences Act 2003. The appellant, who had been 15 years old at the time of the offence, argued that his conviction violated his right to a fair trial and the presumption of innocence under article 6 of the European Convention on Human Rights, as the offence was one of strict liability. He also argued that his conviction violated his right to privacy under article 8 because it was disproportionate to charge him with rape when he could have been charged with a less serious offence under section 13 of the Act, which deals with sex offences committed by persons under 18. The Court of Appeal had 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? The House of Lords held, allowing the appeal and quashing the conviction, that although the conviction did not violate article 6, it did violate article 8. The Court held that the appellant's conviction under section 5 was disproportionate as the offence fell properly within the ambit of section 13. The Court held that Parliament had given prosecutors and sentencers a wide discretion as to which offence to charge and what punishment to impose, depending on the circumstances of the case. The Court held that the appellant's conviction for rape under section 5 was a disproportionate interference with his right to respect for his private life under article 8.