R v G
House of Lords
Citations:  UKHL 37;  1 AC 92.
The defendant was 15 when he had sex with a 12-year-old girl. He claimed to believe that she was also 15 and that she consented, which the prosecution accepted as part of a plea basis. The defendant was charged with, and pled guilty to, rape of a child under 13 under s.5 of the Sexual Offences Act 2003. His sentence was 12 months’ detention.
The defendant appealed his conviction. He argued that the decision to prosecute him under s.5 was incompatible with his rights under the European Convention on Human Rights, particularly:
- The presumption of innocence under Article 6(2)
- His right to a private life under Article 8.
The defendant relied on the fact that he was also a child, the complainant consented, and his belief that she was the same age. Based on this, he argued that he should have been charged with the s.13 offence. Section 13 provides that where a minor commits certain sexual offences, he can be charged under that provision. Not only does s.13 have far lower sentences, it would avoid the defendant’s behaviour being called ‘rape’.
- Was the defendant’s prosecution a disproportionate interference with his Convention rights?
The House of Lords upheld the conviction. The defendant had committed the s.5 offence, and he was not exempt from the provision merely because he was under 16. Since s.5 is a strict liability offence, it was irrelevant that the defendant believed that the complainant was 15. The prosecution has a discretion as to whether to charge s.13 or any other offence. The existence of this discretion did not impact on the defendant’s rights under s.8.
Since s.5 requires the prosecution to prove that the defendant intentionally penetrated the victim, this was not a case where the offence did away with mens rea entirely. It therefore did not impact the presumption of innocence.
This Case is Authority For…
The sexual offences against children under 13 (ss.5-8 of the Sexual Offences Act) are strict liability. It does not matter what the defendant believed the child’s age to be, even if his belief was reasonable. It also does not matter that the defendant himself was a child.
Lord Hope of Craighead and Lord Carswell dissented. Lord Hope argued that it was wrong for the law to label mutually consensual sexual activity between minors as ‘rape’ under the guise of protecting children from predators. The existence of the s.13 offence implied that such children should not be prosecuted in this manner unless consent is absent. Accordingly, Lord Hope thought that the decision to prosecute the defendant under s.5 was contrary to his Article 8 rights.