Jheeta, R. v

The conclusive presumptions in section 76 of the Sexual Offences Act 2003 require strict construction. In a rape case, deception as to the nature or purpose of the relevant act concerns the nature or purpose of intercourse itself. It does not extend to every lie, inducement or pressure which leads to intercourse.

Where section 76 does not apply, consent is determined under section 74. An apparent agreement is not consent if deception and pressure deprive the complainant of the freedom to choose. A guilty plea remains safe where its admitted factual basis establishes that absence of freedom and the defendant’s awareness of it.

The appellant pleaded guilty at Warwick Crown Court to two counts of procuring sexual intercourse by false pretences, four counts of rape, and blackmail. He had fabricated threatening messages and fictitious police officers, then used messages purporting to come from those officers to pressure his complainant into more frequent intercourse.

The pleas to rape had been advised on the basis that section 76 of the Sexual Offences Act 2003 created a conclusive presumption of non-consent. The Court of Appeal granted leave to challenge the rape and blackmail convictions out of time and reconsidered sentence. The central issue was whether the deception engaged section 76, and, if not, whether the admitted facts nevertheless established lack of consent under section 74.

1. The appeals against conviction were dismissed. The appellant’s blackmail conviction disclosed no legal difficulty. Although the advice that section 76 applied was wrong, the agreed factual basis and the appellant’s admissions independently established rape.

2. Section 76 creates conclusive presumptions which, once engaged, establish both absence of consent and absence of reasonable belief in consent. It must therefore be construed strictly. In rape, the relevant act is intercourse. Section 76(2)(a) applies only where the complainant is intentionally deceived about the nature or purpose of that act. It is confined to rare cases such as purported medical or surgical intercourse, illustrated by R v Flattery [1877] 2QBD 410 and R v Williams [1923] 1 KB 340.

3. The appellant’s false police scheme deceived the complainant about her circumstances and exerted pressure on her, but it did not deceive her about the nature or purpose of intercourse. Section 76 was therefore inapplicable. Similarly, the court explained that a false promise of payment, as in R v Linekar [1995] 2 CAR 49, would not engage the conclusive presumption.

4. Under section 74, however, consent requires agreement by choice with freedom and capacity to choose. On at least some occasions the fictitious threats and demands deprived the complainant of that freedom. The appellant knew this. His guilty pleas to rape were consequently safe.

5. The sentence appeal was allowed in part. The sentences on the first two counts exceeded the statutory maximum and were replaced with concurrent terms of 18 months. The remaining sentences and the disqualification order were quashed and varied. All sentences were concurrent, producing a total term of six years’ imprisonment; the notification order remained in force.

• Court of Appeal (Criminal Division): In [2007] EWCA Crim 1699, the court dismissed the appeals against the rape and blackmail convictions. It varied sentence, reducing the overall term from eight years to six years and quashing the disqualification order.
• Crown Court at Warwick: The appellant pleaded guilty to all counts. Judge Cole imposed concurrent sentences of eight years’ imprisonment, a disqualification order under section 28 of the Criminal Justice and Court Services Act 2000, and notification obligations.