J.OC, R v

Before the abolition of the historic irrebuttable common-law presumption, a boy under 14 was incapable in law of committing rape. A conviction for rape contrary to that presumption is unlawful, even if the jury was directed to decide whether the child knew the conduct was seriously wrong.

The Court of Appeal may substitute an alternative conviction where the indictment and the jury’s findings satisfy the statutory conditions. A finding that an offender poses a significant risk of serious harm must reflect the actual risk when available protective measures, including a substantial determinate sentence, licence conditions and preventive orders, are taken into account.

The appellant was convicted at Leeds Crown Court of sexual offences against his sister and daughter. Count 1 alleged rape of his sister during 1981 and 1982, when he was five years old and the appellant was aged 10 or 11. The trial judge directed the jury to consider whether, despite his age, he knew that the act was seriously wrong.

The appellant received an imprisonment for public protection sentence with a 42-month minimum term for an offence against his daughter. A consecutive sentence was imposed for count 1. On referral by the Registrar, the Court of Appeal considered whether the rape conviction was lawful, whether an alternative conviction could be substituted, and whether the appellant met the statutory dangerousness threshold for an indeterminate sentence.

1. The appeal was allowed to the stated extent. The conviction for rape on count 1 was unlawful. At the relevant time, the irrebuttable common-law presumption made a boy under 14 incapable of committing rape. A direction requiring the jury to decide whether the appellant understood that his conduct was seriously wrong could not overcome that absolute incapacity.
2. Under section 3 of the Criminal Appeal Act 1968, read with section 6(3) of the Criminal Law Act 1967, the court could substitute a conviction for indecent assault. A rape count impliedly alleged assault and indecency. The jury’s verdict necessarily established the facts of that alternative offence, and the complainant’s age meant that consent did not arise. The court substituted a conviction under section 14(1) of the Sexual Offences Act 1956.
3. The court did not decide whether attempted rape was an available alternative. Although section 1(2) of the Criminal Attempts Act 1981 permits liability for an attempt despite impossibility of completing the full offence, the interaction between that provision and the former age-based incapacity required further research and was unnecessary to the outcome.
4. The dangerousness finding could not stand. There was a risk of further harm, but it was not a significant risk of serious harm when the lengthy determinate sentence, post-release licence conditions and indefinite Sexual Offences Prevention Order were considered. The risk could adequately be contained without an indeterminate sentence.
5. The court imposed 12 months’ imprisonment for the substituted indecent assault and arranged the sentences on counts 1 to 8 to produce four years. It replaced the imprisonment for public protection sentence on count 12 with seven years’ imprisonment. The sentences for the daughter’s offences were concurrent but consecutive to the four-year sentence for the sister’s offences, producing a total determinate sentence of 11 years. The Sexual Offences Prevention Order remained appropriate.

• Court of Appeal (Criminal Division): In [2012] EWCA Crim 2458, the court granted leave, substituted indecent assault for the unlawful rape conviction, quashed the imprisonment for public protection sentence, and imposed an 11-year total determinate sentence.
• Leeds Crown Court: The appellant was convicted on 7 March 2012 of sexual offences against his sister and daughter. He received an imprisonment for public protection sentence with a 42-month minimum term on count 12, together with concurrent and consecutive determinate sentences.