COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT WARWICK
HIS HONOUR JUDGE COLE
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE SIMON
HIS HONOUR JUDGE GOLDSACK QC
|- and -
|HARVINDER SINGH JHEETA
Mark Wall QC for the Respondent
Hearing dates : 20TH June 2007
Crown Copyright ©
President of the Queen's Bench Division :
"The texts which made reference to having sex with the defendant were sent by him. At the time such texts were sent the defendant and the complainant were engaged in a full consensual sexual relationship and the texts did not therefore induce the complainant to have sexual relations with the defendant. Such texts, or parts thereof, were intended as a joke by the defendant and that was the manner in which they were treated by the complainant."
"The defendant ….
(i).. acknowledges having regular intercourse with the complainant between late 2001,early 2002 and early 2006.
(ii) the complainant did not inform the defendant that she wished to terminate the relationship on any occasion during the aforementioned period.
(iii) the complainant and the defendant were a "couple" throughout the aforementioned period and enjoyed numerous social events together and acts of intercourse.
(iv) the defendant acknowledges that he was responsible for sending the text messages whilst purporting to be PCs Ken, Bob and Thomas.
(v) the initial purpose of sending the text messages was to re-assure the complainant that she would not be harmed by youths who had been threatening her.
(vi) the defendant acknowledges that he continued to send text messages at a time when the frequency of his sexual relationship with the complainant had diminished. The defendant anticipated that the complainant would be persuaded by the text messages to engage in sexual intercourse with increased frequency.
(vii) the defendant maintains that the complainant was willing to engage in acts of sexual intercourse throughout their relationship but acknowledges that the text messages ensured that the intercourse was more frequent than would otherwise have been the case.
(viii) the defendant made full admissions to the above effect during his interview with the police"
"You started to have a relationship with her of a sexual nature and that continued….the time came when perhaps she started to tire of you and instead of accepting that that was the situation, you decided to take part in this bizarre charade to persuade her that she was at risk and as a result involving bogus police officers in your juvenile plot to put pressure on her to have more sex with you than she clearly wanted to have. As a result of doing that you committed the offence of rape on a number of occasions".
In other words, Judge Cole sought to be loyal to the appellant's contention that at least some incidents of rape were preceded and then followed by occasions when intercourse was consensual.
"…a person consents if he agrees by choice, and has the freedom and capacity to make that choice"
"(1) If in proceedings for an offence to which this section applies it is proved –
(a) that the defendant did the relevant act,
…the complainant is to be taken not to have consented to the relevant act unless sufficient evidence is adduced to raise an issue as to whether he consented, and the defendant is to be taken not to have reasonably believed that the complainant consented unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it".
There then follow a series of specified circumstances which apply to the "relevant act" where an evidential presumption against consent is raised. None arises here.
"(1) If in proceedings for an offence to which this section applies it is proved that the defendant did the relevant act and that any of the circumstances specified in sub-section (2) existed, it is to be conclusively presumed –
(a) that the complainant did not consent to the relevant act, and
(b) that the defendant did not believe that the complainant consented to the relevant act.
(2) The circumstances are that –
(a) the defendant intentionally deceived the complainant as to the nature and purpose of the relevant act;
(b) the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant".
" Those who are uncomfortable with the full implications of sexual autonomy may not share the view that a conclusive presumption of absence of consent should apply where D has sex with C who is asleep at the time. The provisions of the Act on consent apply not only to rape and assault by penetration but also to touching which falls within sexual assault or causing sexual activity. A conclusive presumption of absence of consent and absence of reasonable belief in consent, if applied to all situations where C was asleep at the time, would render D liable for sexual assault if he sexually touched his partner C while C was asleep even though D was in the habit of doing so and C had not objected to this in the past".
The writers point out that a complaint, and subsequent prosecution, would be unlikely. However it would seem pretty surprising to couples sharing a bed to be told that the law prohibited either of them from intimately touching the other while asleep, and that they would be potentially liable to prosecution and punishment, for a sexual touch of the sleeping partner as a preliminary to possible sexual activity which the sleeping partner, on awakening, might welcome. The article also addresses "the problem" of the repeal of the offence of procuring sexual intercourse by false representations. It explains that convictions for this offence were rare, adding that "in the unusual case where this issue occurs, the vague terms of section 74 now assume a heightened importance".
" The law has laid it down that where a girl's consent is procured by the means which the girl says this prisoner adopted, that is to say, where she is persuaded that what was being done to her is not the ordinary act of sexual intercourse but is some medical or surgical operation in order to give her relief from some disability from which she is suffering, then that is rape although the actual thing that was done was with her consent, because she never consented to the act of sexual intercourse. She was persuaded to consent to what he did because she thought it was not sexual intercourse and because she thought it was a surgical operation".