R v G

The House of Lords considered whether section 5 of the Sexual Offences Act 2003 (rape of a child under 13), construed as creating liability without proof of knowledge or reasonable belief as to the complainer's age, is compatible with the presumption of innocence under article 6(2) of the European Convention on Human Rights and whether continued prosecution under section 5, where the facts accepted on plea pointed to conduct properly within section 13, violated article 8.

The majority held that article 6(2) is concerned with procedural fairness and the burden of proof and does not dictate the substantive elements of offences; therefore section 5 as one of strict liability in relation to the complainer's age is not incompatible with article 6. The majority also held that the protective object and label of section 5 did not, on the facts of this case and in light of sentencing and prosecutorial discretion, amount to a disproportionate interference with the appellant's article 8 rights.

There was a clear dissenting view that, given the appellant's age and the agreed basis of plea that the complainer consented and the offence fell within the ambit of section 13, it was unlawful under article 8 for the prosecution to continue under section 5 and the conviction should be quashed.

Background and procedural posture:

The appellant, aged 15 at the time of the events, pleaded guilty to rape of a child under 13 contrary to section 5 of the Sexual Offences Act 2003. The prosecution accepted a basis of plea that the complainant had willingly agreed to intercourse and that the appellant believed her to be 15. At first instance the appellant received a 12 month detention and training order; the Court of Appeal dismissed the appeal against conviction but varied sentence to a conditional discharge. Two issues of general public importance were certified for the House of Lords: whether a strict liability criminal offence can violate article 6(1) and/or 6(2), and whether convicting a child under section 5 when his conduct fell properly within section 13 is compatible with article 8.

Nature of the application and remedies sought:

• Nature of claim: criminal appeal seeking to overturn conviction on Convention grounds and to quash conviction or otherwise obtain relief under the Human Rights Act 1998.
• Issues framed: (i) Compatibility of strict liability in section 5 with article 6(2) presumption of innocence; (ii) Compatibility of prosecution/conviction under section 5 with article 8 where the agreed basis of plea indicated the conduct belonged within section 13.

Court’s reasoning and conclusions:

1. Article 6: The majority reasoned that article 6 is principally concerned with fair procedures and the allocation of burdens of proof, not with prescribing particular substantive elements of offences. The prosecution must still prove every element the statute defines and article 6(2) therefore does not bar Parliament from creating offences that do not require mens rea as to every element, provided the burden of proof remains with the prosecution. Authorities such as Matthews v Ministry of Defence and Z v United Kingdom were applied to support the limited reach of article 6 to substantive criminal definitions; the Strasbourg decision in Salabiaku was discussed but ultimately treated as of limited application.
2. Article 8: The majority concluded that the legislative scheme, including the label and maximum penalties in section 5, reflected Parliament's protective objective towards children under 13 and that prosecutorial and sentencing choices in the particular case did not render the conviction disproportionate to justify an article 8 breach. The dissenting judgment considered that, on the agreed facts that the intercourse was consensual and both parties were children of similar age, the prosecution ought to have proceeded under section 13 and that continuation under section 5 was a disproportionate interference with private life and so incompatible with article 8.

Wider observations: The Lords emphasised the importance of prosecutorial discretion and sentencing mitigation where the defendant is a young person; the decision highlights tension between protective statutory design and the practical handling of consensual sexual activity between children.

Appeal dismissed. The majority held that (1) section 5 of the Sexual Offences Act 2003, insofar as it imposes strict liability as to the age of the complainant, is not incompatible with article 6(2) because article 6 is concerned with fair procedure and allocation of burdens of proof rather than specifying substantive elements of offences; and (2) on the facts of this case and having regard to the statutory scheme, prosecutorial choice and sentencing options, there was no violation of article 8. A minority concluded that continuation of prosecution under section 5 where the conduct fell properly within section 13 was disproportionate and incompatible with article 8 and would have quashed the conviction.

On appeal from the Court of Appeal (Criminal Division) [2006] EWCA Crim 821. At first instance the appellant pleaded guilty and was sentenced by Judge Hone to a 12 month detention and training order; the Court of Appeal dismissed the appeal against conviction but allowed the appeal against sentence and substituted a conditional discharge.