G v R

Sexual Offences Act 2003, section 5, creates an offence of rape of a child under 13 regardless of consent or of a defendant’s reasonable belief that the child was 13 or over. That strict liability does not infringe Article 6.2 of the Convention, which protects procedural fairness and the presumption of innocence in relation to the elements chosen by domestic criminal law. The section therefore need not be read down.

A valid charge under section 5 need not be replaced by a section 13 charge if sexual activity is later treated as consensual. Article 8 proportionality can normally be secured through sentence. Consent, relative ages, youth and mitigation remain highly material when sentencing a young offender.

The appellant, aged 15, pleaded guilty at the Central Criminal Court to rape of a child under 13 contrary to section 5 of the Sexual Offences Act 2003. The plea was accepted on the basis that the 12-year-old complainant consented and had told him that she was 15. He was sentenced to a 12-month detention and training order, which triggered five years’ notification requirements.

The appellant appealed against conviction and sentence. He argued that section 5 should be read down because its strict-liability effect was incompatible with Article 6.2 of the Convention. Alternatively, he contended that continuing with a section 5 prosecution after acceptance of the basis of plea disproportionately interfered with his Article 8 rights, and that the sentence was excessive.

The central issues were the proper construction and Convention compatibility of section 5, and the appropriate sentence for consensual sexual intercourse between minors.

1. The appeal against conviction was dismissed, but the appeal against sentence was allowed. On its natural construction, section 5 of the Sexual Offences Act 2003 creates an absolute offence as to the complainant’s age. The statutory contrast with section 9 compellingly excludes a defence of reasonable belief that a child was 13 or over.

2. Article 6.2 does not require a mental element in every criminal offence. It concerns the fairness of the trial and the presumption of innocence in relation to the statutory elements of an offence; it does not control the substantive content of domestic criminal law. Strict liability may expose a person to conviction without blameworthy conduct, but that does not itself make the trial unfair or breach Article 6.2. Section 5 was therefore compatible with Article 6.2 and did not require a Convention-compliant reading down.

3. The court accepted that, on particular facts, prosecuting a child under section 5 rather than section 13, or prosecuting at all, after consensual sexual activity might create an unjustified interference with Article 8. A judge was not, however, obliged to substitute a section 13 charge where the original section 5 charge was proper and consent emerged only later. The sentencing range, from discharge to detention for life, normally enables the court to avoid unjustified consequences.

4. Applying the sentencing guidance in R v Corran and other appeals [2005] EWCA Crim 192, consent, the appellant’s youth, the small age difference, his reasonable belief as to age, the isolated incident and substantial personal mitigation required a markedly lower sentence. The sentencing judge should have treated the admitted conduct as falling in substance within the ambit of section 13 rather than section 5.

5. The 12-month detention and training order was quashed and replaced with a conditional discharge for 12 months. If no further offence was committed during that period, the notification requirement would end and the appellant would cease to be treated as having a conviction.

• Court of Appeal (Criminal Division): By [2006] EWCA Crim 821, dismissed the appeal against conviction but allowed the appeal against sentence. It quashed the detention and training order and imposed a 12-month conditional discharge.
• Central Criminal Court: The appellant pleaded guilty before HHJ Hawkins on 20 April 2005. HHJ Hone imposed a 12-month detention and training order on 8 July 2005.