No. 94/1231/Z2
BAILII Citation Number: [1994] EWCA Crim 1 
IN THE SUPREME COURT OF JUDICATURE
THE COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand
London WC2
Date: Monday 12th September 1994

B e f o r e:
LORD JUSTICE McCOWAN
MR JUSTICE SACHS
and
MR JUSTICE MITCHELL
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R E G I N A
v
ZIANI ELBEKKAY
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(Computer Aided Transcript of the Stenograph Notes of
John Larking, Chancery House, Chancery Lane, London WC2
Telephone No: 071 404 7464
Official Shorthand Writers to the Court)
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MR A ARLIDGE QC and MR D GREEN appeared on behalf of the APPELLANT
MR C MITCHELL appeared on behalf of the CROWN
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JUDGMENT

LORD JUSTICE McCOWAN: On 2nd February 1994 at the Central Criminal Court, before His Honour Judge Gordon, the appellant was convicted of rape and sentenced to 5 years' imprisonment.
He appeals against conviction, raising a point of law alone.
The facts of the prosecution case were these. During the evening of 11th July 1993 the complainant, her boyfriend and the appellant went out drinking together. At the end of the evening they returned to the flat shared by the complainant and her boyfriend. They had in fact, the court has been told, lived together and shared a bed for some one and a half years before the night in question.
The complainant said that they drank more wine when they got back to the flat. She described the appellant as drunk, but not paralytic, and she agreed that she herself became drunk.
The time came when her boyfriend put her to bed. The appellant was to stay the night, so the boyfriend made up a place for him to sleep in the sitting room and then fell asleep himself in that room.
The complainant was awakened by movement on her bed and someone touching her. She assumed that it was her boyfriend coming to bed and, without opening her eyes, she said, "I love you". She then felt a body over her and a penis enter her. After about 20 seconds they kissed, and thinking that something was not quite right, she opened her eyes. She then saw that it was not her boyfriend who was having intercourse with her but the appellant. She reacted violently. She punched him on the side of his face. He leapt up and struggled to get his clothes on. She picked up a knife from a bedside table, shouted at him and cut him across the neck. She then ran into the sitting room and woke her boyfriend. He asked what was going on and she said that the appellant had raped her. He grabbed the appellant by the neck and she telephoned the police.
When cross examined she said that she had consented to everything that happened until the time when she realised that it was not her boyfriend who was in bed with her.
The police arrived and an officer called White spoke to the appellant who was washing blood off his neck in the bathroom. He arrested him and asked him what had happened to him. He said, "nothing". When asked who had cut his neck he said, "I did, with that" indicating a broken mirror in the sink.
In interview he maintained that the complainant had consented to sexual intercourse with him and it was when she saw him that she said "I love you". It was only after he had ejaculated and withdrawn that she made out that she had objected, screaming so as to give the impression to her boyfriend that she had not consented to all that had occurred. That version plainly was rejected by the jury.
The appellant did not give or call evidence, but a submission was made on his behalf at the close of the prosecution case that there was no case to answer, that point being the basis of this appeal. The short point was that counsel for the defence submitted that the actus reus of rape had not been made out since she had consented to the act of sexual intercourse.
Reliance for the appellant here, and indeed before Judge Gordon, was placed on a number of 19th Century authorities culminating in the case of Barrow 11 Cox CC 191. That case, and the earlier ones, held that the obtaining of intercourse with a woman by the impersonation of her husband did not amount to rape. Fraud, it was held in those cases, could not vitiate her consent, although, as Mr Arlidge for the appellant pointed out, illogically the judges in those cases thought that the defendant could be guilty of assault.
Looking for an instant at the case of Barrow, the facts of that case as shortly stated in the headnote were as follows:
"The prosecutrix, with her baby in her arms, was lying in bed between sleeping and waking, and her husband was asleep beside her. She was completely awakened by a man having connection with her, and pushing the baby aside. Almost directly she was completely awakened she found the man was not her husband, and awoke her husband.
Held, that a conviction for a rape upon this evidence could not be sustained." 
The case had been reserved for the opinion of the court by Kelly CB. The court decided the appeal on 16th November 1868. It appears from the report that no counsel appeared on either side. Boville CJ said:
"We have considered this case. It does not appear that the prosecutrix was asleep or unconscious at the time when the first act of connection took place. What was done was, therefore, with her consent, though that was obtained by a fraud. We are of the opinion that this case comes within that class of cases in which it has been decided that, where under such circumstance, consent has been obtained by fraud, the offence does not amount to rape.
The rest of the Court concurred." 
The particular situation dealt with by those cases, namely where a husband was impersonated, was altered by statute, as we shall see in a moment. But, submits Mr Arlidge, that alteration did not affect the principle which is behind the cases, namely that fraud could not vitiate consent. He further submits that at that date there were reasons for differentiating a married woman. For two reasons, in fact. First, that at that date a married woman was obliged to have sexual intercourse with her husband whether she wanted it or not, and secondly, that she would be exposed to the peril of divorce for adultery if she had not been raped.
In support of that explanation Mr Arlidge points to some words of May CJ in the case of Dee. The headnote in that case reads:
"Where a married woman consented to the prisoner having connection with her under the impression that he was her husband,
Held, that the prisoner was guilty of rape." 
This was a decision of the Irish Courts, in fact the Court for Crown Cases Reserved, given on 1st December 1884. The passage in the judgment of May CJ, which we have mentioned, is to be found at page 587 of that report as follows:
"As observed by Mr Curtis, she intends to consent to a lawful and marital act, to which it is her duty to submit. But did she consent to an act of adultery? Are not the acts themselves wholly different in their moral nature? The act she permitted cannot properly be regarded as the real act which took place. Therefore the connection was done, in my opinion, without her consent, and the crime of rape was constituted. I therefore am of opinion that the conviction should stand confirmed." 
Plainly, therefore, his view was contrary to the view in the line of authorities culminating in Barrow. Other judges in the Irish Court agreed with him. Particularly to be noted is this passage in the judgment of Palles CB at page 593:
"We have thus, on the one hand, R v Case, R v Fletcher, R v Flattery and R v Young   cases at this moment recognised in all courts as subsisting law; and on the other, Jackson's case, followed without argument or reasoning in Clarke's case and Barrow's case. This at least enables me to consider the question as one of pure law, unfettered by authority. Let me so consider it. Consent is the act of man, in his character of a rational and intelligent being, not in that of an animal. It must proceed from the will, not when such will is acting without the control of reason, as in idiocy or drunkenness, but from the will sufficiently enlightened by the intellect to make such consent the act of a reasoning being. That this is so is but an instance of the application of a principle of widespread application, which in criminal law appears under the maxim Actus non facit reum nisi mens, sit rea, which determines the nature of the act of execution of all legal instruments, of which it is of the essence that it be accompanied by the intellect, and which applies in the innumerable cases in which intention governs. I feel that I owe an apology to my hearers in insisting upon so elementary a proposition, but nothing is in my opinion too elementary to encounter a doctrine so abhorrent to our best feelings, and so discreditable to any jurisprudence in which it may succeed in obtaining a place, as that which, more than once, was laid down in England, that a consent produced in an idiot by mere animal instinct is sufficient to deprice an act of the character of rape. I think it follows that (excluding cases in which the doctrine of estoppel applies) an act done under the bona fide belief that it is another act different in its essence is not in law the act of the party. That is the present case   a case which is hardly necessary to point out is not that of consent in fact sought to be avoided for fraud, but one in which that which took place never amounted to consent. The person by whom the act was to be performed was part of its essence. The consent of the intellect, the only consent known to the law, was to the act of the husband only, and of this the prisoner was aware. As well put by Mr Curtis, what the woman consented to was not adultery, but marital intercourse." 
It is necessary for us next to look at the changes effected by statute. The first of these is to be found in the Criminal Law Amendment Act 1885 which is stated to be:
"An Act to make further provision for the Protection of Women and Girls..." 
By section 3(2):
"3. Any person who  ...
(2) by false pretences or false representations procures any woman or girl, not being a common prostitute or of known immoral character, to have any unlawful carnal connexion, either within or without the Queen's dominions; ...
shall be guilty of a misdemeanor and being convicted thereof shall be liable at the discretion of the court to be imprisoned for any term not exceeding two years with or without hard labour." 
Says Mr Arlidge, this subsection was perfectly capable of meeting the present case. Section 4 deals with a number of matters. The only material part is to be found at the very end of it where it reads:
"Whereas doubts have been entertained whether a man who induces a married woman to permit him to have connexion with her by personating her husband is or is not guilty of rape, it is hereby enacted and declared that every such offender shall be deemed to be guilty of rape." 
To our mind the wording employed seems to indicate a preference for the view of those who decided Dee rather than for the view of those who decided Barrow.
We pass to the Sexual Offences Act 1956. This is recited to be:
"An Act to consolidate (with corrections and improvements made under the Consolidation of Enactments (Procedure) Act 1949) the statute law of England and Wales relating to sexual
crimes... " 
Section 1(1) reads:
"It is a felony for a man to rape a woman."
It is to be noted that it does not define rape, leaving that to common law.
Subsection (2) reads:
"A man who induces a married woman to have sexual intercourse with him by impersonating her husband commits rape." 
By section 3(1) it is provided:
"It is an offence for a person to procure a woman, by false pretences or false representations, to have unlawful sexual intercourse in any part of the world." 
So far there is nothing very new. But something new is added by subsection (2):
"A person shall not be convicted of an offence under this section on the evidence of one witness only, unless the witness is corroborated in some material particular by evidence implicating the accused." 
Mr Arlidge makes this point. He says if a man is prosecuted for rape, based on impersonation of one other than her husband, no corroboration is required, but there is such a requirement if he is prosecuted for the lesser offence under section 3(1) of the 1956 Act. That he characterises as an unhappy anomaly. He also told the court that there is a bill before Parliament, not yet an Act, which contains a proposal to abolish the requirement in subsection (2) for corroboration. He says rightly that we must ignore the fact that that change is likely to be made. The relevance, he says, is that it indicates that this is a field for legislation by Parliament and not for judicial legislation.
To those statutory requirements, and his arguments thereunder, Mr Arlidge added reference to a decision of the High Court of Australia in the case of Papadimitropolous v Regina (1958) 98 CLR 249. What that held was that where a woman consented to sexual intercourse, under the belief, fraudulently induced by the man, that she was married to him, the man was not guilty of rape. In the court's judgment there is to be found on page 261 these remarks:
"...there is no reported instance of an indictment for rape based on the fraudulent character of the ceremony." 
Later on that page the judgment continues:
"To say that in having intercourse with him she supposed that she was concerned in a perfectly moral act is not to say that the intercourse was without her consent. To return to the central point; rape is carnal knowledge of a woman without her consent: carnal knowledge is the physical fact of penetration; it is the consent to that which is in question: such a consent demands a perception as to what is about to take place, as to the identity of the man and the character of what he is doing. But once the consent is comprehending and actual the inducing causes cannot destroy its reality and leave the man guilty of rape." 
In the light of that passage it seems to us that this authority does not assist Mr Arlidge.
Of the statutory provisions to which we have so far had regard, Judge Gordon had this to say, in the transcript of his judgment at page 3 F, dealing with section 4 of the Criminal Law (Amendment) Act 1885 he said:
"That section is rightly accepted to be declaratory in nature, that is to say, declaratory of the existing or common law and was in my view, passed in order to avoid future confusion and difference of opinion rather than to make new law. If declaratory and relating to particular confusion then it does no more than resolve that confusion. No inference can be properly drawn from its limited scope, it was all that was required at the time. If it had been a statute making new law then it would have concluded that Parliament intended, thereby, to limit liability of impostors to conviction for rape to those who impersonated husbands, but it was not that type of legislation it was declaratory. At that time, there was no need to include the unmarried because the problem had just not arisen. Indeed, it does not appear to have arisen by 1956, certainly the researches of counsel have not revealed any authority on the point between the late 19th century and 1956 and it is therefore, unsurprising that there was no change to the wording when the Sexual Offences Act was passed. Therefore, the common law position seems to be either unclear and open or as decided by R v Dee and section 1,(2) of the Sexual Offences Act 1956 is limited solely to cases involving the impersonation of a husband." 
We certainly think it very unlikely that in 1956 Parliament was deliberately and consciously deciding that it was rape to impersonate a husband, but not, say, a man who had been living with the woman for many years.
In any event the situation was clearly affected by the Sexual Offences (Amendment) Act 1976. Section 1 of that Act deals with the meaning of rape, in other words a definition is now being supplied, and subsection (1) reads, so far as it is relevant:
"For the purposes of section 1 of the Sexual Offences Act 1956 (which relates to rape) a man commits rape if 
(a) he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it; ..."
The section was applied in the case of Olugboja 73 Cr.App.R 344. Giving the judgment of the court at page 350 Lord Justice Dunn said:
"...in so far as the actus reus is concerned the question now is simply: 'At the time of the sexual intercourse did the woman consent to it?'" 
If that question is asked in the present case the answer must be, on the verdict of the jury, that she did not consent.
Mr Arlidge, very properly, drew our attention to the report of the Criminal Law Revision Committee on Sexual Offences in 1985. The relevant passage there reads:
"We see no reason to distinguish between consent obtained by impersonating a husband and consent obtained by impersonating another man, so that latter case should also constitute rape. All other cases of fraud should be dealt with under section 3 of the 1956 Act and should not amount to rape." 
Mr Arlidge acknowledges of course that that passage is against him, but he says that clearly the Committee contemplated the need for legislative action and there has been none. That, he says, is how it should be done, not by judicial decision. Dealing with this aspect of the case, Judge Gordon had this to say at page 5 G:
"I now have to consider whether in 1994 at a time when a wife is no longer under a duty to submit to intercourse with her husband, whether there is such a fundamental difference between a wife agreeing to sexual intercourse with her husband and a fiance or girlfriend agreeing to sexual intercourse with their regular partner that the law should hold that the consent of the wife, if obtained by fraud, is no consent but the consent of the others is still consent in law. I am bound to say, after careful consideration I can find no justification for so finding. It would be wholly contrary to modern attitudes and values at which the law should seek to reflect where possible. It would also very seriously curtail or interfere with the right of women to choose, understanding the true facts, whether to participate or not in the act of sexual intercourse." 
We wholly agree. Indeed, we think it would be extroadinary for us to come to any other conclusion in 1994. How could we conscientiously hold that it is rape to impersonate a husband in the act of sexual intercourse, but not if the person impersonated is merely, say, the long term, live in lover, or in the even more modern idiom, the 'partner' of the woman concerned?
The vital point about rape is that it involves the absence of consent. That absence is equally crucial whether the woman believes that the man she is having sexual intercourse with is her husband or another.
In our judgment no authority or statute obliges us to hold otherwise. As to the 19th Century authorities on which Mr Arlidge places such reliance, we respectfully adopt the words of Lord Keith in his speech in R v R (1992) AC 599, 616 C:
"The common law is, however, capable of evolving in the light of changing social, economic and cultural developments." 
For all those reasons, we conclude that the ruling of the judge was correct and the appeal must be dismissed.
MR ARLIDGE: My Lords, there are two other matters which I would like to raise. First of all, I would ask you to certify that a point of law of general public importance is involved. I have drafted three possible alternatives which I will hand up to you if I may. One is from the man's point of view, one is from the woman's point of view, and the third is in short form.
LORD JUSTICE McCOWAN: Is one recommended rather than the other?
MR ARLIDGE: Number 1.
LORD JUSTICE McCOWAN: That is the one you think it should be?
MR ARLDIGE: Yes. There is a question that is differently worded by the learned trial judge, but it did not seem to me that it quite formed a sufficiently comprehensive question to the House of Lords. I can hand that up as well, but perhaps I could just indicate what it is: 'If the complainant agreed to sexual intercourse with the defendant solely on the basis that she wrongly believed he was her boyfriend that is no consent in law.' It is not written in the form of a question and it does not refer to the law on rape, so I felt something more was needed.
LORD JUSTICE McCOWAN: I was wondering whether the first includes all the necessary ingredients. Supposing the facts were, in this case, that the appellant had knocked on the door and she said, 'Come in' and he said, 'I am so and so' (giving his true name) 'and I would rather like to have intercourse with you', and she was so muzzy that she did not understand what he was saying and thought it was her boyfriend, and then the rest followed; what would he have done wrong? Would he have been guilty of rape? Would he not have had a good reason for believing that she was consenting? That seems to be wholly left out of the account.
MR ARLIDGE: I think there is a second limb, of course, which is that he reasonably believed that she was consenting. I think in that case    
LORD JUSTICE McCOWAN: I know it has not arisen in this case. When I read it starkly put in your (1)   indeed, I think it is in all of them   it is rather leaving out some of the other ingredients, is it not?
MR ARLIDGE: My Lord may have noticed that we did not make any reference to the Collins' case. That is the gentleman who climbed in through the window in Colchester. That is a case which seems to stick in the memory of all the Law students.
LORD JUSTICE McCOWAN: It certainly has not stuck in mine.
MR ARLIDGE: He was beckoned in. The lady's boyfriend had just said goodnight and there was a ladder up against the house. The defendant coming along climbed the ladder. She thinking it was her boyfriend playing Romeo beckoned him in, and he of course thought 'This is my lucky night' and went in. His conviction was quashed upon the basis that there were obviously grounds for him reasonably thinking there was consent.
LORD JUSTICE McCOWAN: I did not consciously remember that case but it seems very akin to my instincts. 
MR ARLIDGE: The escape route    I mean the point is that this case raises a question only about the actus reus and I think with respect the point your Lordship raised may be apposite in many cases    
LORD JUSTICE McCOWAN: It does not arise at all, but if you read your (1) you might think that even in such a case it would be right    you may think I am splitting hairs. It does not matter. I quite agree. It is only that I just wondered whether it would necessarily be rape even if you were right.
MR ARLIDGE: I see. Then it may be then that my number 2 is preferable on that ground. That looks at it from her point of view, that of consent. It may be that it would obviate that? Or my number 3?
LORD JUSTICE McCOWAN: I think it is still missing. I mean it really does not matter.
MR ARLIDGE: I am sure such matters would be raised in argument if in due course the matter is heard.
LORD JUSTICE McCOWAN: Yes, but they like the questions to be accurate.
MR ARLIDGE: It may be your Lordships would prefer time to consider the exact form and then that can be communicated to us if you grant the certificate.
LORD JUSTICE McCOWAN: It may be that 3 is the answer. I do not know. We shall hear what the Crown wants to say. Mr Mitchell, have you any observations on, first of all, the question whether we should certify at all and secondly, if we do, which if any of these 3 is best?
MR MITCHELL: My Lord, I would certainly not object to certifying a point of law in these circumstances. As to which of the 3 questions is correct, I have only had a very brief chance to look at them. I think my learned friend drafted them as the judgment was being started. But I agree they should be limited to the actus reus of rape and not trespass into the area of mens rea.
MR MITCHELL: It may be that number 3 puts the short point and leaves the other matters to be dealt with by explanation.
LORD JUSTICE McCOWAN: It may be the number 3 is the best, but I have not discussed it yet. We shall retire now to consider.
MR ARLIDGE: My Lords, before you retire, I would also ask, if you do certify, also to grant leave.
LORD JUSTICE McCOWAN: That will be a separate point that we shall have to consider. Is there any more you want to say?
MR ARLIDGE: My Lords, no.
(Short adjournment)

LORD JUSTICE McCOWAN: We have come to the conclusion that we should not certify.
MR ARLIDGE: If you please. My Lords, could I raise one other matter in relation to sentence? He was sentenced to 5 years' imprisonment. There has been, at the moment, no appeal against sentence. However, unfortunately, since the sentence, he has become mentally ill, and originally, although it was recommended he be transferred from prison to a medium secure unit, none was available for him. At that point my instructing solicitor, who was actually the instructing solicitor at the original trial, went to see him. May I just add that she has come along today because of her concern about him? When she saw, him he did indicate to her then that he wanted to raise the question of an appeal out of time against sentence. However since she has been to see him last Thursday, a medium secure unit was found in a hospital and he is there. As he has chosen, understandably in the circumstances, not to come to court today, obviously neither I nor she has been able to take instructions in those changed circumstances. It may be that there will be an argument for mounting an appeal against sentence in those changed circumstances. I have just been talking to the associate   who does not know the position any more than I do   but there would seem to be two possibilities. One is that if he was brought to court at a later date, my junior could take instructions from him, and the other would be for the court to grant legal aid to the solicitor to go and take further instructions from him in those changed circumstances. As it stands he has asked me, as it were, through her, to raise the question, but I do not think I ought to do that without going through with him the various possibilities as to the length of his incarceration under different kinds of order. I think what I would ask you to do is, if it is within your power, to grant legal aid for the instructing solicitor to go and see him. If that is not within your power, then to recommend the Registrar to consider such an application.
LORD JUSTICE McCOWAN: As you say, it is out of time and would we not have to think that on the face of it there might be something wrong with the sentence?
MR ARLIDGE: There are two points that could be made. First of all, he is obviously faced with a tariff sentence of 5 years.
LORD JUSTICE McCOWAN: That is not high, not on the face of it. He pleaded not guilty.
MR ARLIDGE: Save only that the period of the act was extremely short and was desisted as soon as she broke off, as soon as she protested. The other point that really arises, of course, is that the position now is not the same as when the trial judge came to sentence. If you have someone who has become mentally ill, within the meaning of the Act, post trial and prior appeal, had that occurred in time, it might properly have been the basis of an application for leave to appeal and therefore in theory might be the proper basis for an application for leave out of time.
LORD JUSTICE McCOWAN: We shall consider it. (Pause) No, we do not feel able to take any steps in this regard, Mr Arlidge. If it is wished to get an application under way, out of time, then nothing we say or have said is intended to stop that course being taken, but we do not see any reason for taking any steps ourselves, in particular, we do not feel justified in granting legal aid.
MR ARLIDGE: If you please. 

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