Strict liability for offence of under-age sex does not offend presumption of innocence

28 September 2011 by

C v United Kingdom Application no. 37334/08 – read judgment

The Strasbourg Court has rejected as manifestly ill-founded a complaint that the offence of strict liability for rape of a child under 13 violated the right to a presumption if innocence under Article 6 and respect for private life under Article 8.

This admissibility decision touches a sensitive nerve in the relationship between Strasbourg and national authorities by exploring the extent to which the Convention rights should influence prosecutorial policy.  Section 5 of the 2003 Sexual Offences Act creates an offence of strict liability, which means that penile penetration of a child under the age of 13 is an offence whether or not the victim gave consent and irrespective of the belief of the perpetrator regarding the victim’s age. This is because the law regards the attitude of the victim of this behaviour as irrelevant to the commission of the offence;  even if a child under 13 is fully capable of understanding and freely agreeing to such sexual activity, the law says that it makes no difference. He or she is legally disabled from consenting. Although absence of consent is not an ingredient of the offence, presence of consent is, material in relation to sentence which under Section 5 of the 2003 Act can range from absolute discharge to life imprisonment.

The applicant, a 15 year old boy, was charged under the 2003 Act for having sex with a child under the age of 13. He pleaded guilty on the basis that he reasonably believed that the complainant was also 15 and had consented to sex, but this was to no avail. The prosecution did not accept the basis of his plea and he was subsequently convicted of rape under Section 5.

The Court of Appeal dismissed his appeal under Article 6(2), which in its view did not prevent a State from creating offences of strict liability. However the Court did take the circumstances into account and quashed the applicant’s custodial sentence and replaced it with a conditional discharge for a period of 12 months. The House of Lords  held, similarly, that Article 6 (1) and (2) guaranteed fair procedure and the presumption of innocence but did not place any obligation on States as regards the substantive contents of domestic law, including the mental or other elements of offences under domestic criminal law. They also doubted that the applicant’s right to private life under Article 8 was engaged. Whilst the concept of private life could include sexual life, this did not mean that every sexual act that an individual performed or wished to perform was capable of engaging Article 8. But even if it were, his prosecution, conviction and sentence were proportionate in the pursuit of the legitimate aims of the protection of health and morals and of the rights and freedoms of others. Baroness Hale was particularly forceful in her exposition of the rationale underpinning the offence: it is there to protect underage children from sexual predation, whether they appear to want it or not. As for Article 8, it protects

the physical and moral integrity of the complainant, vulnerable by reason of her age if nothing else…. The state would have been open to criticism if it did not provide her with adequate protection. This it attempts to do by a clear rule that children under 13 are incapable of giving any sort of consent to sexual activity and treating penile penetration as a most serious form of such activity. This does not in my view amount to a lack of respect for the private life of the penetrating male.

The applicant complained under Article 6 (1) and (2) of the Convention that his conviction of the offence under the 2003 Act  was not compatible with the presumption of innocence. He also complained that the criminal proceedings amounted to a disproportionate interference with his right to respect for private life under Article 8.

Complaint inadmissible

Referring to its own case law, the Court noted that it has always interpreted Article 6(2) as permitting the creation of offences of strict liability provided it did so within “reasonable limits”, striking a balance between the public interest and the rights of the defence (Salabiaku v. France (1988). However Salabiaku had no application to the impugned offence since Section 5 does not provide for presumptions of fact or law to be drawn from elements proved by the prosecution. The Court therefore did not consider that Parliament’s decision not to make available a defence based on reasonable belief that the complainant was aged 13 or over could give rise to any issue under Article 6.

The Court did not address the government’s submission that Article 6(1) of the Convention, read together with Article 6(2), was concerned with procedural fairness and not with the content of the substantive law.

As for Article 8, the Court was prepared to accept that the sexual activities at issue fell within the meaning of “private life” (S.L. v. Austria (2003)  ). The Court therefore concluded that the criminal proceedings against the applicant, which resulted in his conviction and sentence, constituted an “interference by a public authority” with his right to respect for private life. In reaching this conclusion the Court has closed the gap left open by the House of Lords on this important question.

However, it agreed with the domestic court’s finding that the State is under a positive obligation under Article 8 to protect vulnerable individuals from sexual abuse and that the UK was well within its margin of appreciation in deciding how to do this.

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