R v Jheeta (Harvinder Singh)
Court of Appeal
Citations: [2007] EWCA Crim 1699; [2008] 1 WLR 2582.
Facts
The defendant and the complainant were in a sexual relationship. The defendant began sending the complainant anonymous threatening messages. When the complainant told the defendant about the messages, he offered to contact the police on her behalf. She accepted. The defendant then send her messages from fake police officers, tricking her into handing over £700.
Later, the defendant became convinced that the complainant wanted to end the relationship. He sent further messages in the guise of the police, threatening to fine the complainant if she did not continue having sex with him. The complainant believed the messages, and had sex with the defendant more often than she wanted to.
The defendant pleaded guilty to rape, after receiving legal advice. His lawyer had advised him that the conclusive presumption under s.76(2)(a) of the Sexual Offences Act 2003 applied to his behaviour. This presumption is that the complainant did not consent and that the defendant lacked a reasonable belief in consent if: ‘the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act’. The defendant appealed his conviction, arguing that this legal advice was incorrect.
Issue(s)
- Did the defendant deceive the complainant as to the nature or purpose of the act?
Decision
The Court of Appeal upheld the conviction. The defendant had been improperly advised: s.76(2)(a) only applies where the complainant is deceived about the nature of the sex or its purpose. This was not the case on the facts – the complainant had been deceived in other ways. However, it was clear that the complainant did not consent to intercourse, applying the ordinary meaning of consent, and that the defendant knew this. He was therefore properly convicted of rape.
This Case is Authority For…
The conclusive presumption under s.76(2)(a) of the Sexual Offences Act 2003 only applies where there is deception about the nature or purpose of the relevant sex act. It does not apply where the complainant is deceived in other ways.
However, other forms of deceit can mean that the complainant did not agree freely and by choice, particularly if they put the complainant under pressure to have sex when they do not want to. In those cases, the jury is entitled to find that the complainant did not consent.
Other
The Court noted that the common law prior to the Sexual Offences Act 2003 applied a presumption against consent where the complainant was deceived as to the nature or ‘quality’ of the act. The court explained that the 2003 Act does not reference to the ‘quality’ of the act, but its ‘purpose’. This casts doubt on whether cases such as R v Tabassum [2000] 2 Cr App R 328 would be decided the same way under the 2003 Act.
