R v G (Appellant) (On appeal from the Court of Appeal (Criminal Division))

Article 6 of the European Convention on Human Rights regulates procedural fairness, including proof of every element of an offence. It does not prescribe the substantive elements of domestic criminal offences. An offence requiring intentional conduct but imposing strict liability as to a victim’s age is therefore compatible with the presumption of innocence where the prosecution must prove every constituent element.

Convicting a young person of rape of a child under 13 under section 5 of the Sexual Offences Act 2003 is compatible with article 8. The protective purpose of the offence, the legal incapacity of a child under 13 to consent and the availability of proportionate sentencing justified its application, despite the overlap with a lesser offence applicable to defendants under 18.

The appellant, aged 15, pleaded guilty under section 5 of the Sexual Offences Act 2003 to rape of a child under 13. The prosecution accepted for sentencing that the 12-year-old complainant had willingly participated, had said that she was 15 and that the appellant believed her. The judge imposed a 12-month detention and training order.

The Court of Appeal dismissed the appeal against conviction but allowed the sentencing appeal, substituting a 12-month conditional discharge: [2006] EWCA Crim 821; [2006] 1 WLR 2052. It certified whether a strict-liability offence could violate article 6(1) or 6(2), and whether conviction under section 5 was compatible with the appellant’s article 8 rights where the agreed conduct also fell within section 13.

1. Appeal dismissed by a majority of three to two. Lord Hoffmann, Baroness Hale and Lord Mance held that the conviction under section 5 of the Sexual Offences Act 2003 was compatible with articles 6 and 8. Lord Hope and Lord Carswell would have allowed the appeal on article 8 grounds and quashed the conviction.

2. Lord Hoffmann and Lord Hope, with whom Baroness Hale and Lord Mance agreed on article 6, held that article 6 governs the fairness of the procedure by which criminal liability is determined. It does not prescribe the substantive elements of an offence. Article 6(2) requires the accused to be presumed innocent of the offence defined by domestic law, but does not require mens rea to correspond with every element of the actus reus. Strict liability as to age is compatible with article 6 where the prosecution must prove intentional penetration and that the other person was under 13.

3. Section 5 requires intentional penile penetration of the vagina, anus or mouth of a child under 13. Knowledge or reasonable belief concerning the child’s age is immaterial. Per Lord Hope and Baroness Hale, Parliament deliberately adopted that rule to protect children from premature sexual activity and made their apparent willingness legally irrelevant. The accused takes the risk that a child may be younger than represented.

4. On article 8, Lord Hoffmann considered that, once criminalisation of the conduct was justified, prosecutorial choice and sentencing remained matters for the ordinary criminal justice system. Baroness Hale held that article 8 did not protect the appellant’s conduct at the expense of the complainant’s physical and moral integrity. Alternatively, prosecution under section 5 was rational and proportionate to protecting health, morals and the rights of children. Lord Mance similarly concluded that the protective statutory scheme, the overlap with sections 9 and 13 and the conditional discharge did not impose disproportionate prejudice.

5. Lord Hope, dissenting with Lord Carswell, held that prosecutorial choices must comply with Convention rights. Once the prosecution accepted that the activity was mutual and fell properly within section 13, continuing under section 5 and imposing the label of rape was, in their view, disproportionate and incompatible with article 8.

1. House of Lords: By a majority of three to two, dismissed the appeal against conviction: [2008] UKHL 37.
2. Court of Appeal (Criminal Division): Dismissed the appeal against conviction, allowed the appeal against sentence and substituted a 12-month conditional discharge: [2006] EWCA Crim 821; [2006] 1 WLR 2052.
3. Crown Court: Following a guilty plea under section 5 of the Sexual Offences Act 2003, imposed a 12-month detention and training order.