The defendant was fifteen. He was convicted of statutory rape of a 13 year old girl, believing her to be 15. He appealed saying that as an offence of strict liability he had been denied a right to a fair trial, and also that the offence charged was excessive, violating his right to privacy.
Held: The appeal was dismissed. Applying Gemell, the defendant’s human rights were not engaged by substantive criminal law. The cases of Laskey and KA and AD v Belgium showed that a state could properly involve itself in such matters. Lord Hope and Lord Carswell dissenting – it was unlawful to continue to prosecute for rape when the prosecutor adopted the defence version of events that the complainant had consented.
Lord Hoffmann said: ‘The mental element of the offence under section 5, as the language and structure of the section makes clear, is that penetration must be intentional but there is no requirement that the accused must have known that the other person was under 13. The policy of the legislation is to protect children. If you have sex with someone who is on any view a child or young person, you take your chance on exactly how old they are. To that extent the offence is one of strict liability and it is no defence that the accused believed the other person to be 13 or over.’
Article 8 confers a qualified right protecting a person’s private or family life, but if the state is justified in treating the person’s conduct as unlawful that is the end of the matter.
Lady Hale thought that article 8 did not apply, because a rule which prevented a child under 13 from giving legally recognised consent to sexual activity and a statute which treated penile penetration as a most serious form of such activity did not amount to a lack of respect for the private life of the penetrating male. If, however, article 8 applied, Lady Hale considered that the interference was justified and proportionate in the pursuit of the legitimate aims of the protection of health and morals and of the rights and freedoms of others.
Lord Hoffmann, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Carswell, Lord Mance
[2008] UKHL 37, Times 20-Jun-2008, [2008] 1 WLR 1379, [2009] 1 AC 92, [2009] 1 Cr App R 8, [2008] HRLR 36, [2009] UKHRR 72, [2008] 3 All ER 1071, [2008] Crim LR 818, [2009] AC 92
Bailii, HL
Sexual Offences Act 2003 5, European Convention on Human Rights 6
England and Wales
Citing:
Cited – Z And Others v The United Kingdom ECHR 10-May-2001
Four children complained that, for years before they were taken into care by the local authority, its social services department was well aware that they were living in filthy conditions and suffering ‘appalling’ neglect in the home of their . .
Cited – Matthews v Ministry of Defence HL 13-Feb-2003
The claimant sought damages against the Crown, having suffered asbestosis whilst in the armed forces. He challenged the denial to him of a right of action by the 1947 Act.
Held: Human rights law did not create civil rights, but rather voided . .
Cited – Salabiaku v France ECHR 7-Oct-1988
A Zairese national living in Paris, went to the airport to collect, as he said, a parcel of foodstuffs sent from Africa. He could not find this, but was shown a locked trunk, which he was advised to leave alone. He however took possession of it, . .
Applied – Regina v Gemmell CACD 17-Jul-2002
Dyson LJ said: ‘The position is quite clear. So far as Article 6 is concerned, the fairness of the provisions of the substantive law of the Contracting States is not a matter for investigation. The content and interpretation of domestic substantive . .
Cited – Laskey, Jaggard and Brown v The United Kingdom ECHR 19-Feb-1997
A prosecution for sado-masochist acts was a necessary invasion of privacy to protect health. The Court found no violation where applicants were imprisoned as a result of sado-masochistic activities captured on video tape when police obtained . .
Cited – KA And AD v Belgium ECHR 17-Feb-2005
ECHR Judgment (Merits) – No violation of Art. 6-1; No violation of Art. 7; No violation of Art. 8.
The defendants complained that their conviction for assaults committed in the course of sado-masochistic . .
Cited – Regina v Corran, Regina v Cutler, Regina v Heard, Regina v Willams CACD 2-Feb-2005
Various sentences were appealed in respect of defendants convicted of sexual offences under the 2003 Act.
Held: The Act contained new extended ranges of sexual offences, and these required resvised sentencing guidelines. The starting point for . .
Cited – Dudgeon v The United Kingdom ECHR 22-Oct-1981
ECHR (Plenary Court) Legislation in Northern Ireland that criminalised homosexual behaviour which was lawful in the rest of the UK.
Held: There was a violation of article 8, but it was not necessary to . .
Cited – Regina v Hess; Regina v Nguyen 1990
The protection of children from the evils of intercourse is multi-faceted and so obvious as not to require formal demonstration. . .
Cited – S v the Director of Public Prosecutions Admn 28-Jun-2006
A 15 year old defendant was accused of sexual intercourse with a 12 year old complainant, the prosecutor abandoned the charge under section 5 and substituted one under section 13 as it appeared that the conduct in question was consensual. . .
Cited – G and R v Secretary of State for the Home Department CACD 12-Apr-2006
The defendants appealed their convictions for rape of a girl under 13.
Held: The appeals were dismissed, but the sentences were reduced to conditional discharges. . .
Cited – Kehoe, Regina (on the Application of) v Secretary of State for Work and Pensions HL 14-Jul-2005
The applicant contended that the 1991 Act infringed her human rights in denying her access to court to obtain maintenance for her children.
Held: The applicant had no substantive right to take part in the enforcement process in domestic law . .
Cited – Barnfather v London Borough of Islington Education Authority, Secretary of State for Education and Skills QBD 7-Mar-2003
The appellant was convicted of the crime of being a parent whose child had failed to attend school regularly. She challenged saying that the offence required no guilty act on her part, but was one of strict liability, and contrary to her human . .
Cited – Regina v Daniel CACD 22-Mar-2002
The defendant appealed a conviction for hiding assets from her receiver following her bankruptcy. He said that recent case law suggested that the burden of establishing the defence under section 352 was evidential only.
Held: The conviction . .
Cited – Hansen v Denmark ECHR 11-Jul-2000
Hudoc Judgment (Struck out of the list) Struck out of the list (friendly settlement) . .
Cited by:
Cited – E and Others, Regina (on The Application of) v The Director of Public Prosecutions Admn 10-Jun-2011
Judicial review was sought of a decision by the respondent to prosecute a child for her alleged sexual abuse of her younger sisters. Agencies other than the police and CPS considered that a prosecution would harm both the applicant and her sisters. . .
Cited – Brown, Regina v (Northern Ireland) SC 26-Jun-2013
The complainaint, a 13 year old girl had first said that the defendant had had intercourse with her againt her consent. After his arrest, she accepted that this was untrue. On being recharged with unlawful intercourse, he admitted guilt believing he . .
Cited – AB v Her Majesty’s Advocate SC 5-Apr-2017
This appeal is concerned with a challenge to the legality of legislation of the Scottish Parliament which deprives a person, A, who is accused of sexual activity with an under-aged person, B, of the defence that he or she reasonably believed that B . .
At HL – G v The United Kingdom ECHR 30-Aug-2011
The appellant aged 15, had sexual intercourse with a girl aged 12. He pleaded guilty to a charge of rape of a child under 13, contrary to section 5 of the 2003 Act, on the written basis that the intercourse was consensual in fact (although by reason . .
Cited – SXH v The Crown Prosecution Service (CPS) SC 11-Apr-2017
The Court was asked: ‘Does a decision by a public prosecutor to bring criminal proceedings against a person fall potentially within the scope of article 8 of the European Convention on Human Rights in circumstances where a) the prosecutor has . .
Lists of cited by and citing cases may be incomplete.
Crime, Human Rights
Leading Case
Updated: 31 October 2021; Ref: scu.269989