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Cite as: [2009] UKHRR 72, [2009] 1 Cr App Rep 8, [2008] Crim LR 818, [2009] 1 Cr App R 8, [2009] AC 92, [2008] HRLR 36, [2008] 3 All ER 1071, [2008] WLR 1379, [2009] 1 AC 92, [2008] UKHL 37, [2008] 1 WLR 1379

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Judgments - R v G (Appellant) (On appeal from the Court of Appeal (Criminal Division))

HOUSE OF LORDS

SESSION 2007-08

[2008] UKHL 37

on appeal from: [2006] EWCA Crim 821

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

R v G (Appellant) (On appeal from the Court of Appeal (Criminal Division))

Appellate Committee

Lord Hoffmann

Lord Hope of Craighead

Baroness Hale of Richmond

Lord Carswell

Lord Mance

Counsel

Appellants:

Tim Owen QC

Rebecca Trowler

(Instructed by Alexander & Partners)

Respondents:

David Perry QC

Melanie Cumberland

(Instructed by Crown Prosecution Services)

Intervener

Jeremy Johnson

(Instructed by Treasury Solicitors)

Hearing date:

5 MARCH 2008

ON

WEDNESDAY 18 JUNE 2008

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

R v G (Appellant) (on Appeal from the Court of Appeal (Criminal Division))

[2008] UKHL 37

LORD HOFFMANN

My Lords,

On 20 April 2005 the appellant pleaded guilty to the offence of rape of a child under 13, contrary to section 5 of the Sexual Offences Act 2003:

(1) A person commits an offence if —

(a) he intentionally penetrates the vagina, anus or mouth of another person with his penis; and

(b) the other person is under 13.

(2) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.

For the purpose of sentence, the prosecution accepted the appellant's version of the facts, namely, that the accused was 15 at the time of the offence, the complainant had consented to intercourse and she had told him that she was 15. On 8 July 2005 Judge Hone sentenced him to a 12 month detention and training order. The appellant appealed on the grounds that (1) the conviction violated his right to a fair trial and the presumption of innocence under article 6 of the Convention, because it was an offence of strict liability, and (2) it violated his right to privacy under article 8 because it was disproportionate to charge him with rape under section 5 when he could have been charged with a less serious offence under section 13, which deals with sex offences committed by persons under 18. The Court of Appeal dismissed the appeal against conviction but allowed an appeal against sentence and substituted a conditional discharge. It certified two questions as being of general public importance:

(1) May a criminal offence of strict liability violate article 6(1) and/or 6(2)…?

(2) Is it compatible with a child's rights under article 8…to convict him of rape contrary to section 5…in circumstances where the agreed basis of plea establishes that his offence fell properly within the ambit of section 13…?"

The mental element of the offence under section 5, as the language and structure of the section makes clear, is that penetration must be intentional but there is no requirement that the accused must have known that the other person was under 13. The policy of the legislation is to protect children. If you have sex with someone who is on any view a child or young person, you take your chance on exactly how old they are. To that extent the offence is one of strict liability and it is no defence that the accused believed the other person to be 13 or over.

Article 6(1) provides that in the determination of his civil rights or any criminal charge, everyone is entitled to a "fair and public hearing" and article 6(2) provides that everyone charged with a criminal offence "shall be presumed innocent until proved guilty according to law". It is settled law that Article 6(1) guarantees fair procedure and the observance of the principle of the separation of powers but not that either the civil or criminal law will have any particular substantive content: see Matthews v Ministry of Defence [2003] UKHL 4; [2003] 1 AC 1163. Likewise, article 6(2) requires him to be presumed innocent of the offence but does not say anything about what the mental or other elements of the offence should be. In the case of civil law, this was established (after a moment of aberration) by Z v United Kingdom (2002) 34 EHRR 3. There is no reason why the reasoning should not apply equally to the substantive content of the criminal law. In R v Gemmell [2002] EWCA Crim 1992; [2003] 1 Cr App R 343, 356, para 33 Dyson LJ said:

"The position is quite clear. So far as Article 6 is concerned, the fairness of the provisions of the substantive law of the Contracting States is not a matter for investigation. The content and interpretation of domestic substantive law is not engaged by Article 6."

The only authority which is said to cast any doubt upon this proposition is the decision of the Strasbourg court in Salabiaku v France (1988) 13 EHRR 379 and in particular a statement in paragraph 28 (at p.388) that "presumptions of fact or of law" in criminal proceedings should be confined "within reasonable limits". No one has yet discovered what this paragraph means but your Lordships were referred to a wealth of academic learning which tries to solve the riddle.

My Lords, I think that judges and academic writers have picked over the carcass of this unfortunate case so many times in attempts to find some intelligible meat on its bones that the time has come to call a halt. The Strasbourg court, uninhibited by a doctrine of precedent or the need to find a ratio decidendi, seems to have ignored it. It is not mentioned in Z v United Kingdom (2002) 34 EHRR 3. I would recommend your Lordships to do likewise. For my part, I would simply endorse the remarks of Dyson LJ in R v Gemmell [2003] 1 Cr App R 343, 356.

The other ground of appeal is that the conviction violated the appellant's right of privacy under article 8. This is, on the face of it, an astonishing proposition. Is it really being suggested that a young person under 18 has a human right to have undisturbed sexual intercourse with a child under 13? If anything is likely to bring human rights into disrepute, it is such a claim.

When one examines the argument of Mr Owen QC for the appellant, however, he is not saying any such thing. He does not claim that sexual intercourse with children under 13, even in the privacy of the appellant's home, ought not to be prohibited. But he says that, as he was only 15 at the time of the offence, the Crown acted unduly harshly by prosecuting him under section 5 rather than under section 13, which deals with sexual offences committed by persons under 18 and carries a maximum penalty of imprisonment for 5 years.

Assuming this to be right, the case has in my opinion nothing to do with article 8 or human rights. Article 8 confers a qualified right that the state shall not interfere with what you do in your private or family life. Any interference with your conduct by the state must be necessary and proportionate for one of the purposes mentioned in article 8.2. But you either have such a right or you do not. If the state is justified in treating your conduct as unlawful, for example, because you are beating your wife or sexually abusing children, article 8 does not generate an additional right that the state shall not be too hard on you for whatever you have done because it happens to have been done at home.

Prosecutorial policy and sentencing do not fall under article 8. If the offence in question is a justifiable interference with private life, that is an end of the matter. If the prosecution has been unduly heavy handed, that may be unfair and unjust, but not an infringement of human rights. It is a matter for the ordinary system of criminal justice. It would be remarkable if article 8 gave Strasbourg jurisdiction over sentencing for all offences which happen to have been committed at home. This case is another example of the regrettable tendency to try to convert the whole system of justice into questions of human rights.

It is true that in Laskey, Jaggard and Brown v UK (1997) 24 EHRR 39 (the sado-masochism case) the Strasbourg court, in deciding whether prosecution was a proportionate interference with indulgence in such practices in private, noted (at para 49) that "reduced sentences were imposed on appeal". And in KA and AD v Belgium (Application Nos 42758/98 and 45558/99) (unreported 17 February 2005, BAILII: [2005] ECHR 110 ), a similar case from Belgium, the court also noted that the sentences were not disproportionate. But the issue in both cases was whether such activities should be criminalised at all. The judgments contain no explanation of why the sentences were thought to be relevant.

In my opinion, therefore, the answers to the certified questions are no and yes respectively. That leaves only the question of whether in the particular circumstances of this case, it was an abuse of process for the Crown to prosecute under section 5. That is not a question which has been certified. For what it is worth, I agree with the Court of Appeal that the Crown was not obliged to withdraw the charge under section 5 when they found themselves having to accept the appellant's version of events. "Rape of a child under 13" still accurately described what the appellant had done. Parliament decided to use this description because children under 13 cannot validly or even meaningfully consent to sexual intercourse. So far as the basis of plea provided mitigation, they were entitled to leave the judge to take it into account. I would dismiss the appeal.

LORD HOPE OF CRAIGHEAD

My Lords,

Section 5 of the Sexual Offences Act 2003, which makes sexual intercourse with a child under 13 a crime of strict liability irrespective of the age of the defendant and calls it rape, has given rise to some important and difficult questions: see J R Spencer, The Sexual Offences Act 2003: (2) Child and Family Offences [2004] Crim L R 347, 360. Section 13 of the same Act, read with section 9(1)(c)(ii), makes it an offence for a person under 18 to have sexual intercourse with a child under 13. Unlike section 5, it does not attach the label of rape to this offence. What behaviour then should the criminal law prohibit, and what should it not? To what extent is it is reasonable to leave it to the police and other authorities to decide when to prosecute and, where there is a choice, for which offence? These questions have been brought out into the real world by this case.

There is no doubt that when section 5 of the 2003 Act was enacted the protection of children was one of the primary concerns of the legislature. Furthermore, as Rose LJ said in R v Corran [2005] EWCA Crim 192, para 6, its purpose is to protect children under 13 from themselves as well as from others who are minded to prey upon them. But the creation of an unqualified offence of this kind carries with it the risk of stigmatising as rapists children who engage in a single act of mutual sexual activity. A heavy responsibility has been placed on the prosecuting authorities, where both parties are of a similar young age, to discriminate between cases where the proscribed activity was truly mutual on the one hand and those where the complainant was subjected to an element of exploitation or undue pressure on the other. In the former case more harm than good may be done by prosecuting. In the latter case the threshold will have been crossed and prosecution is likely to be inevitable. But if in the former case it is decided to prosecute, a decision still has to be made about the section under which the perpetrator is to be prosecuted.

Of course, the prosecuting authorities can only work on what they have got. As Mr Perry QC for the respondent put it, they can only engage with the complainer's account of events. No criticism can be made of the decision to prosecute under section 5 in this case in view of the account which the complainant gave when she was interviewed by the police. At the time of the events complained of the appellant was aged 15 and the complainant was aged 12. She said that he had vaginal intercourse with her despite the fact that, alarmed by what was to happen, she made clear her objections. Then the situation changed. The complainant accepted that she had told the appellant that she was 15 and she was reluctant to attend court to give evidence. The appellant pleaded guilty to a contravention of section 5 of the 2003 Act on the basis that the complainant willingly agreed to have sexual intercourse with him and that he believed at the time that she was 15. The appeal arises from the fact that the prosecution informed the court that they had decided to accept his plea of guilty on this basis as one of guilty to the offence charged under section 5.

The judge sentenced the appellant to a twelve months' detention and training order. But the appellant had been in custody for about five months before he was granted bail on being granted permission to appeal against his sentence. So there were grounds for regarding the sentence as excessive. It was quashed by the Court of Appeal and replaced with an immediate conditional discharge for a period of twelve months: [2006] EWCA Crim 821, [2006] 1 WLR 2052. As the court pointed out in para 52 of its judgment, if the appellant committed no offence during that period the notification requirement imposed by Part 2 of the 2003 Act would end with it and he would not thereafter be deemed to have had a conviction.

Mr Owen QC for the appellant maintained nevertheless that the full impact of his conviction for rape under section 5 was, is and will continue to be substantial. He was morally blameless, but he would carry the stigma of a conviction for rape with him for the rest of his life. His argument was that the conviction under that section on the agreed basis was a violation of his rights under article 6(2) of the European Convention on Human Rights and that, in any event, it was not compatible with his right to respect for his private life under article 8 of the Convention. He submitted that the prosecution ought to have been discontinued, or alternatively that the prosecutor should have sought a conviction under section 13 of the 2003 Act, read with section 9(1)(c)(ii), which would not have carried with it the stigma of a conviction for rape.

The alternative offences

Section 5 of the 2003 Act is headed "Rape of a child under 13". A person commits an offence under that section if he intentionally penetrates the vagina, anus or mouth of another person with his penis and the other person is under 13. He is liable on conviction on indictment to imprisonment for life. It replaced section 5 of the Sexual Offences Act 1956 which bore the side note "Intercourse with girl under thirteen" and provided: "It is a felony for a man to have unlawful sexual intercourse with a girl under the age of thirteen." The corresponding provision for Scotland is section 5(1) of the Criminal Law (Consolidation) (Scotland) Act 1995. The section is headed "Intercourse with girl under 16". Subsection (1), which applies where the girl is under 13, provides: "Any person who has unlawful sexual intercourse with any girl under the age of 13 years shall be liable on conviction on indictment to imprisonment for life." The alteration in the way section 5 is described from the description which was applied to its predecessor is significant.

Section 5 of the 2003 differs from the provision which it replaced in three respects. The first, as I have just said, is its heading. The offence contrary to section 5 of the 1965 was commonly described as "statutory rape". Now this is its official designation. Rape is an apt description of any kind of coercive penetrative sexual activity. It is not if the sexual activity was truly consensual. It has been applied to section 5 because at common law a girl under 13 cannot consent to sexual intercourse. Second, it applies to offences against boys under the age of 13 as well as girls. Third, it applies to the use of the penis to penetrate the mouth as well as the vagina or the anus of the complainant. So the scope of the protection has been extended, to keep pace with current trends in sexual behaviour. There is no upper or lower limit to the age of the person by whom the offence may be committed. The fact that a contravention of rape under this section may attract a sentence of life imprisonment is an indication of the gravity of the offence.

The actus reus of the offence created by section 5 is the penetration by the penis of the vagina, anus or mouth of a complainer who is under the age of 13. Mens rea as to the age of the complainer is not required. The mens rea is using the penis deliberately to penetrate the relevant orifice. As Gordon, Criminal Law, 3rd ed (2000), para 7.08 points out, the modern usage of mens rea is quite independent of moral wickedness or of any idea of general criminal depravity. Each crime has its own mens rea. It does not have to match every part of the actus reus. The mental element varies according to the different nature of different crimes. It has been described as the mental element necessary for the particular crime: Glanville Williams, Criminal Law: The General Part, 2nd ed (1961), p 31.

In this case the requirement of mens rea has not been wholly eliminated. The offence which the section creates is one of strict liability in the sense that proof of the intentional penetration of a child under 13 is all that is needed for a conviction. Mistake as to age is a defence in the case of offences committed against older children. In the case of children under 13 it is not. This must be taken to have been a deliberate choice by Parliament which, under domestic law, it was entitled to take. The principle which has been applied is that intentional sexual activity of the proscribed kind with children below that age should not be permitted in any circumstances. In R v Hess; R v Nguyen [1990] 2 SCR 906 McLachlin J said, at p 948, that the protection of children from the evils of intercourse is multi-faceted and so obvious as not to require formal demonstration. Sections 5 to 8 were designed to protect children under 13 of both sexes from sexual conduct perpetrated against them by anyone.

This, however, is not the only way in which sexual activity between children may be prosecuted. A group of sections, sections 9 to 15, is headed "Child sex offences". Section 9 is headed "Sexual activity with a child". It criminalises intentional touching of a sexual nature, including penetration of the complainer's vagina, anus or mouth. It applies where the person accused of the offence is over 18. If the other person is under 16, it is a defence that the person accused reasonably believed that the other person was 16 or over. If the other person is under 13 the offence is one of strict liability, as it is in section 5: section 9(1)(c)(ii). The defence of mistaken belief in age is not available. Section 13 extends its reach to protect children from sexual assaults by other young people. It provides that a person under 18 commits an offence if he does anything which would be an offence under any of sections 9 to 12 if he were aged 18. He may be prosecuted either on indictment or summarily. The maximum sentence on indictment is 5 years' imprisonment.

Conduct of the kind that was the basis of the appellant's decision to plead guilty in this case was within the reach of section 9(1)(c)(ii) as extended by section 13 to acts committed by persons under 18. As the Scottish Law Commission observed in its discussion of the various offences that are available in English law involving children under 13, a sexual offence with a girl of that age who does consent is not [their emphasis] an example of what is sometimes called statutory rape: Report on Rape and Other Sexual Offences (December 2007, Scot Law Com No 209), para 4.27. The choice as to which of sections 5 or 13 to employ is left by the statute entirely to the prosecutor. The context suggests however that a child under 18 ought not to be prosecuted under section 5 for performing a sexual act with a child under 13 of the kind to which that section applies unless the circumstances are such as to indicate that it plainly was an offence of such gravity that prosecution under section 13 would not be appropriate. It suggests that a child under 18 (and more especially a child as young as 15) should not be prosecuted under section 5 (rape of a child under 13) if the complainer says that he or she consented to sexual intercourse. The problem revealed by this case is the familiar one which faces every prosecutor. The complainer's account of events may change. The appellant seeks to find a solution under sections 6 and 7 of the Human Rights Act 1998 to the way he was dealt with in this case.

Article 6(2)

Mr Owen's primary submission was that the offence which section 5 creates, interpreted as one of strict liability, is incompatible with article 6(2) of the Convention, which provides that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. He sought support for this argument in the observations of the European Court in Salabiaku v France (1988) 13 EHRR 379. In paras 27- 28 of its judgment the court said:

"27. As the Government and the Commission have pointed out, in principle the Contracting States remain free to apply the criminal law to an act where it is not carried out in the normal exercise of one of the rights protected under the Convention and, accordingly, to define the constituent elements of the resulting offence. In particular, and again in principle, the Contracting States may, under certain conditions, penalise a simple or objective fact as such, irrespective of whether it results from criminal intent or from negligence. Examples of such offences may be found in the laws of the Contracting States.

28… Presumptions of fact or of law operate in every legal system. Clearly, the Convention does not prohibit such presumptions in principle. It does, however, require the Contracting States to remain within certain limits in this respect as regards criminal law….

Article 6(2) does not therefore regard presumptions of fact or of law provided for in the criminal law with indifference. It requires States to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence."

Mr Owen sought to apply what he described as the reasonable limits test to the offence that section 5 creates. The effect of any offence of strict liability, he said, was to create a presumption that the accused had done something of which he was innocent. So the creation of strict criminal liability will always engage a consideration of compatibility with the presumption of innocence in article 6(2). The conduct to which the appellant had pleaded guilty in this case was morally blameless, as the complainant willingly agreed to have sexual intercourse with him. It was difficult to distil from Salabiaku a clear principle that strict criminal liability was always free from regulation under article 6(2). The European Court said in para 27 that the Contracting States could penalise a simple or objective fact as such irrespective of whether there was criminal intent. But it had made it clear that it could only do so under certain conditions. This was to be read as applying not just to matters of procedure. The substance of an offence could be examined too, and it would violate article 6(2) if it failed properly to recognise that the accused is to be presumed innocent until proven guilty of the conduct which it was intended to deter.

He said that support for this submission was to be found in Hansen v Denmark, application no 28971/95, 16 March 2000. That case concerned the compatibility of a strict liability tachograph offence with article 6(2). Although the complaint was declared inadmissible, the court adopted and applied the references in para 27 and 28 of Salabiaku to "certain conditions" and "reasonable limits" to test the issue of compatibility. They were not said to be irrelevant to an offence of strict liability. Domestic authority which might suggest the contrary, referred to by the Court of Appeal in paras 37-39, should not be followed: eg Barnfather v Islington Education Authority [2003] EWHC 418 (Admin); [2003] 1 WLR 2318, para 18, per Maurice Kay J; R v Daniel [2002] EWCA Crim 959; [2003] 1 Cr App R 99, para 34, per Auld LJ.

This argument seems me to read far too much into the wording of article 6(2) and to the Court's reasoning in Salabiaku. Article 6(2), like article 6(3), must be read in the context of article 6(1). The article as a whole is concerned essentially with procedural guarantees to ensure that there is a fair trial, not with the substantive elements of the offence with which the person has been charged. As has been said many times, article 6 does not guarantee any particular content of the individual's civil rights. It is concerned with the procedural fairness of the system for the administration of justice in the contracting states, not with the substantive content of domestic law: Matthews v Ministry of Defence [2003] 1 AC 1163, para 3, per Lord Bingham of Cornhill, paras 30-35 per Lord Hoffmann, para 142, per Lord Walker of Gestingthorpe; R (Kehoe) v Secretary of State for Work and Pensions [2005] UKHL 48; [2006] 1 AC 42, para 41. The approach which the article takes to the criminal law is the same. Close attention is paid to the requirements of a fair trial. But it is a matter for the contracting states to define the essential elements of the offence with which the person has been charged. So when article 6(2) uses the words "innocent" and "guilty" it is dealing with the burden of proof regarding the elements of the offence and any defences to it. It is not dealing with what those elements are or what defences to the offence ought to be available.

The observations in paras 27-28 of Salabiaku are not inconsistent with this analysis. As the Court of Appeal noted in para 31 of its decision, that case was decided, in accordance with the practice of the Strasbourg court, on its own facts. The principles which it was seeking to enunciate are set out in rather general terms, which that court has not so far attempted to enlarge upon. But the key to a proper understanding of the passage as a whole is to be found in the first sentence of para 27. It contains a clear affirmation of the principle that the contracting states are free to apply the criminal law to any act, so long as it is not one which is carried out in the exercise of one of the rights protected under the Convention. Accordingly they are free to define the constituent elements of the offence that results from that act. So when the court said in the next sentence that the contracting states may "under certain conditions" penalise a simple or objective fact as such, irrespective of whether it results from criminal intent or negligence, it was reaffirming the same principle. As in the previous sentence, the certain conditions that are referred to indicate that objection could be taken if the offence was incompatible with other articles of the Convention. But they have no wider significance. If there is no such incompatibility, the definition of the constituents of the offence is a matter for domestic law.

Salabiaku is not easy to construe, as my noble and learned friend Lord Hoffmann points out. But I do not agree with him that we should simply ignore it. Read in the way I have indicated, it continues to offer guidance about the extent of the guarantee that is afforded by article 6(2). Dyson LJ's remarks in R v Gemmell [2003] 1 Cr App R, 343, 356, para 33 with which I too agree, are consistent with that guidance. The substantive content of the criminal law does not raise issues of fairness of the kind to which that article is directed.

I would therefore respectfully endorse the conclusion which the Court of Appeal drew from the reasoning in Salabiaku. It said in para 33:

"An absolute offence may subject a defendant to conviction in circumstances where he has done nothing blameworthy. Prosecution for such an offence and the imposition of sanctions under it may well infringe articles of the Convention other than article 6. The legislation will not, however, render the trial under which it is enforced unfair, let alone infringe the presumption of innocence under article 6(2)."

It follows that I would not attach the significance to the decision in Hansen v Denmark that Mr Owen sought to attach to it. The offence in that case was one of strict liability. But, as the court noted, the burden of proof of all its elements was throughout on the prosecution. As it said, there was nothing to indicate that the courts in fulfilling their functions started from the assumption that the applicant was liable. This passage in its judgment is consistent with the view that article 6(2) does not proscribe offences of strict liability, so long as the prosecution bears the burden of proof of all the elements that constitute the offence.

That requirement is plainly met in this case. So I would hold that section 5 of the 2003 Act is not incompatible with article 6(2) of the Convention and that the prosecutor's act in prosecuting the appellant under that section was not unlawful in that respect.

Article 8

Mr Owen's alternative argument was that the appellant's right to respect for his private life under article 8 was violated because the prosecutor did not drop the charge under section 5 and substitute one under section 13. He accepted that it was not a breach of article 8 for the appellant to have been charged under section 5 in the first place, as the information that was before the prosecutor at that stage was that the complainant had not consented to intercourse. His point was that, once it had become clear that she had changed her account of the incident, the prosecutor should have proceeded instead under section 13. As he did not do this, the judge should have indicated that for him to proceed under section 5 was incompatible with article 8, leaving it to the Crown to decide what alternative course it should take. He agreed that there had been no attempt to stay the proceedings before the appellant was sentenced, nor had it been argued that for the prosecutor to proceed under section 5 in view of the basis of the appellant's plea was an abuse of process. But he submitted that the appellant was nevertheless entitled to a remedy under the 1998 Act.

For the respondent, Mr Perry submitted that there was no breach of article 8 when the appellant was charged, as the complainer's initial account was that the intercourse was not consensual. There were reasons for not being over-critical of the prosecutor's decision to adhere to the charge under section 5 when the complainer changed her account of the incident. There was no suggestion that the conduct between the appellant and the complainant was part of an established relationship. On the contrary, even on her altered account, it had the hallmarks of opportunism. Parliament had given the sentencing judge the opportunity to select an appropriate sentence within a wide spectrum. The proceedings had to be seen as a whole. Any incompatibility with article 8(2) was removed by the Court of Appeal when it quashed the sentence of detention and replaced it with a conditional discharge. But he conceded, in view of the basis on which the appellant was prepared to plead guilty, that the prosecution should probably not have accepted it as a plea to rape under section 5. In R (S) v Director of Public Prosecutions [2006] EWHC 2231 (Admin), where a 15 year old defendant was accused of sexual intercourse with a 12 year old complainant, the prosecutor abandoned the charge under section 5 and substituted one under section 13 as it appeared that the conduct in question was consensual. This suggests that there is some lack of consistency about the approach that should be adopted in cases of this kind.

Article 8(1) guarantees to everyone the right to respect for his private life, and a teenager has as much to respect for his private life as any other individual. It is unlawful for a prosecutor to act in a way which is inconsistent with a Convention right. So I cannot accept Lord Hoffmann's proposition that the Convention rights have nothing to do with prosecutorial policy. How an offence is described and the range of sentences that apply to it are matters for the contracting state. But where choices are left to the prosecutor they must be exercised compatibly with the Convention rights. The questions then are whether the appellant's continued prosecution for rape under section 5 was necessary in a democratic society for the protection of any of the interests referred to in article 8(2), and whether it was proportionate. Account must be taken in this assessment of the alternative courses that were open to the prosecutor, including proceeding under section 13 instead of section 5, as well as the sentencing options that are available to the court in the event of a conviction under either alternative and the labels which each of them would attract.

The European Court has acknowledged the necessity in a democratic society for some degree of control to be exercised over homosexual conduct, especially to provide safeguards against the exploitation and corruption of those who are especially vulnerable because they are young: Dudgeon v United Kingdom (1981) 4 EHRR 149, paras 49, 62. It is obvious that the same point can be made about mutual heterosexual conduct between children. But Mr Owen did not suggest that there would have been a violation of article 8 if the appellant had been convicted and sentenced under section 13 of the 2003 Act. His point was that to impose a strict liability for rape under section 5 on a 15 year old child where the complainer consented to sexual intercourse, there being an alternative section under which he could more appropriately have been prosecuted for such conduct, was not necessary in a democratic society. The sanction was wholly disproportionate to any legitimate aim sought to be achieved. It was not removed by the Court of Appeal's substitution of a conditional discharge.

I would not go so far as to say that it was disproportionate for a child under 15 to be prosecuted for committing a sexual act with a child under 13 just because it was consensual. The offences which the 2003 Act has created are expressed in very broad terms. They recognise that the circumstances in which mutual sexual activity may take place between children of the same or the opposite sex, and the acts that they may perform on one another as fashions change, will inevitably vary greatly for case to case. But there is great force in the point that McLachlin J made in R v Hess; R v Nguyen [1990] 2 SCR 906 about the need for children to be protected. Their need to be protected against themselves is as obvious as is their need to be protected from each other. There is much to be said for the view that where acts are perpetrated on children under 13 by children of a similar age intervention of some kind is necessary for the protection of their physical and moral health. My noble and learned friend Baroness Hale of Richmond offers a unique insight into these issues, and I agree with all she says about the dangers of under age sexual activity. The fact that there was consent is to this extent simply irrelevant.

But this case is about the choices that are available where the prosecutor is satisfied that the conduct was consensual or, as consent could not in law be given, was mutual. Moreover it is about the choices that ought to be made where the participants in sexual conduct which was mutual were both children. It is worth noting that Kathleen Marshall, Scotland's Commissioner for Children and Young People, speaking at a conference on 15 May 2008, said that the Children's Hearing system is a better way of dealing with consensual sex between underage young people than charging them with a criminal offence. She made it clear that sexual activity between young people under 16 should not be condoned or regarded as the acceptable norm. But she believed that a more effective intervention was likely to be secured if the response was changed from a criminal one to a welfare response through the Children's Hearing system. Scotland was fortunate in having that unique system, she said, and it should use it.

The Children's Hearing system provided for in Chapters 2 and 3 of the Children (Scotland) Act 1995 is not available in England and Wales. So sexual activity between children of the kind described in this case cannot be dealt with outside the criminal law. I am not suggesting that it should be decriminalised here. That would be to condone it which, as McLachlin J's observations about the risks to vulnerable young people so clearly indicate, would not be acceptable. But this still begs the question whether sexual crimes committed by children should be dealt with in the same way as sexual crimes committed by adults. There are grounds for thinking that the sanctions that can be imposed under section 13 for mutual sexual activity by a person under 18 with a child under 13 provide all that is needed by way of punishment that is proportionate to the offence. The message that this is an offence can be conveyed to children as well as adults very effectively by the use of these sanctions, as anyone who has exercised the responsibility of sentencing children in cases of that kind knows.

Section 5, the rape of a child under 13, on the other hand is designed for a different and much more serious situation. The offence is one which only a male person can commit. It may be committed by a male person of any age, and he is liable on conviction to life imprisonment. The description of the offence as rape, and all the consequences that go with that description, are entirely appropriate where the act has been committed upon a child under 13 by a person over the age of 18. It may also be appropriate where the person who committed it was under that age. But the lower the age, the less appropriate it will be. The question in such a case, given the choice that is available, must be whether in all the circumstances to proceed under section 5 would be proportionate. The Court of Appeal said that the judge should have taken the view, having regard to the basis of the plea, that the offence in this case fell properly within the ambit of section 13 rather than section 5: para 51. I agree, but I would go further. I think that it must follow that, as the offence fell properly within the ambit of section 13, the appellant's conviction of rape under section 5 was disproportionate.

Conclusion

I would hold that it was unlawful for the prosecutor to continue to prosecute the appellant under section 5 in view of his acceptance of the basis of the appellant's plea which was that the complainant consented to intercourse. This was incompatible with his article 8 Convention right, as the offence fell properly within the ambit of section 13 and not section 5. There is a lesson to be learnt here which I very much hope will be taken into account in future cases of this kind. I would allow the appeal and quash the conviction.

BARONESS HALE OF RICHMOND

My Lords,

On the question of whether this prosecution, conviction and sentence were in breach of the appellant's rights under article 6 of the European Convention, I have nothing to add to the opinions of my noble and learned friends, Lord Hoffmann and Lord Hope of Craighead, with which I agree. But because your lordships are not unanimous on the question of whether there was a breach of the appellant's rights under article 8 of the Convention, I feel it necessary to add a few words of my own. I do so in the light of the well-known observations of the European Court of Human Rights in the case of X and Y v The Netherlands (1986) 8 EHRR 235, 239, at paras 22 to 27, that there are positive obligations inherent in an effective respect for private and family life. These may require the criminal law to provide effective protection for those who cannot protect themselves from the sexual attentions of others, as well as requiring the state to abstain from arbitrary interference in the sexual lives of individuals.

Section 5 of the Sexual Offences Act 2003 is entitled "Rape of a child under 13". It provides:

"(1) A person commits an offence if -

(a) he intentionally penetrates the vagina, anus or mouth of another person with his penis, and

(b) the other person is under 13.

(2) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life."

The conduct which this penalises would also have been penalised under the Sexual Offences Act 1956 (as amended) but the offence committed would have differed according to the sexual act involved and the gender of the victim: unlawful sexual intercourse with a girl under 13, contrary to section 5 of the 1956 Act, carried a maximum of life imprisonment; buggery of a person of either sex, contrary to section 12, also carried a maximum of life imprisonment, unless the exception for acts committed in private between consenting males aged 16 and over applied; indecent assault on a female, under section 14, and on a male, under section 15, carried a maximum of ten years' imprisonment and both provided that a child under 16 could not give any consent which would prevent the act from being an assault.

Section 5 of the 2003 Act has three main features. First, it singles out penetration by the male penis as one of the most serious sorts of sexual behaviour towards a child under 13; secondly, it applies to such penetration of a child under 13 of either sex; and thirdly it calls this "rape". This is its novel feature but it is scarcely a new idea. The offences of unlawful sexual intercourse under sections 5 and 6 of the 1956 Act were often colloquially known as "statutory rape". This is because the law regards the attitude of the victim of this behaviour as irrelevant to the commission of the offence (although it may, of course, be relevant to the appropriate sentence). Even if a child is fully capable of understanding and freely agreeing to such sexual activity, which may often be doubted, especially with a child under 13, the law says that it makes no difference. He or she is legally disabled from consenting.

There are a great many good reasons for this: see, eg, R v Hess; R v Nguyen [1990] 2 SCR 906, per McLachlin J. It is important to stress that the object is not only to protect such children from predatory adult paedophiles but also to protect them from premature sexual activity of all kinds. They are protected in two ways: first, by the fact that it is irrelevant whether or not they want or appear to want it; and secondly, by the fact that in the case of children under 13 it is irrelevant whether or not the possessor of the penis in question knows the age of the child he is penetrating.

Thus there is not strict liability in relation to the conduct involved. The perpetrator has to intend to penetrate. Every male has a choice about where he puts his penis. It may be difficult for him to restrain himself when aroused but he has a choice. There is nothing unjust or irrational about a law which says that if he chooses to put his penis inside a child who turns out to be under 13 he has committed an offence (although the state of his mind may again be relevant to sentence). He also commits an offence if he behaves in the same way towards a child of 13 but under 16, albeit only if he does not reasonably believe that the child is 16 or over. So in principle sex with a child under 16 is not allowed. When the child is under 13, three years younger than that, he takes the risk that she may be younger than he thinks she is. The object is to make him take responsibility for what he chooses to do with what is capable of being, not only an instrument of great pleasure, but also a weapon of great danger.

I venture to think that none of this would be at all controversial if the possessor of the penis in question were over the age of 16, certainly if he were an adult. Much has been made of the overlap between the offence of "rape of a child under 13" under section 5 of the 2003 Act and the offence of "sexual activity with a child" under section 9. The section 9 offence distinguishes, in the maximum sentences prescribed, between penetration and other kinds of sexual touching, between victims under and over 13, and, through a combination of sections 9 and 13, between perpetrators aged under and over 18. But it is not suggested that it would be disproportionate to charge the section 5 offence against a man who had sexual intercourse with a girl under 13 simply because the same conduct would also be covered by the section 9 offence which carries a lesser (although still severe) penalty.

What difference can it make that the possessor of the penis is himself under 16? There was a great deal of anxiety in Parliament about criminalising precocious sexual activity between children. The offences covered by section 13 in combination with section 9 cover any sort of sexual touching however mild and however truly consensual. As sexual touching is usually a mutual activity, both the children involved might in theory be prosecuted. Indeed, section 9 expressly contemplates that the person penetrated may be the offender. Obviously, therefore, there will be wide variations in the blameworthiness of the behaviour caught by sections 9 and 13. Both prosecutors and sentencers will have to make careful judgments about who should be prosecuted and what punishment, if any, is appropriate. In many cases, there will be no reason to take any official action at all. In others, protective action by the children's services, whether in respect of the perpetrator or the victim or both, may be more appropriate. But the message of sections 9 and 13 is that any sort of sexual activity with a child under 16 is an offence, unless in the case of a child who has reached 13 the perpetrator reasonably believed that the child was aged 16 or over. There are many good policy reasons for the law to convey that message, not only to adults but also to the children themselves.

Section 5 reinforces that message. Penetrative sex is the most serious form of sexual activity, from which children under 13 (who may well not yet have reached puberty) deserve to be protected whether they like it or not. There are still some people for whom the loss of virginity is an important step, not to be lightly undertaken, or for whom its premature loss may eventually prove more harmful than they understand at the time. More importantly, anyone who has practised in the family courts is only too well aware of the long term and serious harm, both physical and psychological, which premature sexual activity can do. And the harm which may be done by premature sexual penetration is not necessarily lessened by the age of the person penetrating. That will depend upon all the circumstances of the case, of which his age is only one.

In this case, two 17 year old friends of the 12 year old complainant became concerned when she admitted to them that she had had sexual intercourse with the 15 year old appellant. They took her to a family planning clinic. The clinic called the police. In a video-recorded interview she said that she had gone to the appellant's home and into his bedroom where they had chatted and he had then had sexual intercourse with her even though she said that she did not want to. The appellant was charged with the section 5 offence. No complaint is made about the initial decision to charge.

The appellant then offered to plead guilty on the basis that the complainant willingly agreed to have sexual intercourse with him and that he believed that she was 15 years old because she had told him so. The prosecution were at first unwilling to accept this basis of plea, because the complainant was adamant that she did not want to have sexual intercourse with the appellant. She did, however, accept that she might have told him that she was 15. Accordingly, a Newton hearing was fixed in order that the sentencing judge could decide the facts. The complainant was, however, terrified of attending court and so, with the support of her mother, decided that she was content with the basis of plea.

The prosecution were then invited to drop the case altogether but declined to do so. They were not invited to consider substituting a charge under section 13. The judge sentenced the appellant to a 12 month detention and training order for the section 5 offence but this was reduced on appeal to a 12 month conditional discharge.

No complaint is now made about the decision to continue to prosecute. Nor is there any complaint about the eventual disposal. The complaint is that, despite the guilty plea and despite the defence not having suggested this course, the prosecution should have substituted a charge of the section 13 offence. Continuing to prosecute the section 5 offence was, it is said, a disproportionate interference with the appellant's right to respect for his private life under article 8(2) of the Convention.

In effect, therefore, the real complaint is that the appellant has been convicted of an offence bearing the label "rape". Parliament has very recently decided that this is the correct label to apply to this activity. In my view this does not engage the article 8 rights of the appellant at all, but if it does, it is entirely justified. The concept of private life "covers the physical and moral integrity of the person, including his or her sexual life" (X and Y v The Netherlands, para 22). This does not mean that every sexual relationship, however brief or unsymmetrical, is worthy of respect, nor is every sexual act which a person wishes to perform. It does mean that the physical and moral integrity of the complainant, vulnerable by reason of her age if nothing else, was worthy of respect. 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.

Even supposing that it did, it cannot be an unjustified interference with that right to label the offence which he has committed "rape". The word "rape" does indeed connote a lack of consent. But the law has disabled children under 13 from giving their consent. So there was no consent. In view of all the dangers resulting from under age sexual activity, it cannot be wrong for the law to apply that label even if it cannot be proved that the child was in fact unwilling. The fact that the appellant was under 16 is obviously relevant to his relative blameworthiness and has been reflected in the second most lenient disposal available to a criminal court. But it does not alter the fact of what he did or the fact that he should not have done it. In my view the prosecution, conviction and sentence were both rational and proportionate in the pursuit of the legitimate aims of the protection of health and morals and of the rights and freedoms of others.

In agreement with my noble and learned friends, Lord Hoffmann and Lord Mance, therefore, I would dismiss this appeal and answer the first certified question in the negative and the second in the positive.

LORD CARSWELL

My Lords,

Determining the appropriate sentence in cases involving sexual activity between young people is one of the more difficult tasks facing judges in criminal courts. They have to attempt to uphold the intention of Parliament in attaching penalties to acts of various kinds, while recognising the changes in sexual morality and behaviour which have taken place, involving greater sexual activity at younger ages than would have been accepted in previous generations. The appeal before your Lordships demonstrates some of these difficulties.

Some of the problems encountered in the present case stem from the lack of definite knowledge of the true facts of what occurred between the complainant and the appellant. The complainant alleged that he had had vaginal intercourse with her against her will, whereas the appellant has made the case that intercourse was consensual and that he thought that she was aged fifteen years. The term "consensual" is not accurate in the legal sense, for she could not at the age of twelve years give sufficient consent to excuse the act, since any sexual act performed on a child under thirteen years constitutes an offence, irrespective of the complainant's willingness to engage in the activity or the defendant's knowledge or belief about her age.

The immediate difficulty arose because the complainant was unwilling to give evidence, even on a Newton hearing for fixing sentence, and the Crown had to accept the basis on which the appellant was prepared to plead guilty, that the complainant had agreed to intercourse and had told him that she was fifteen years of age, his own age at the time. It may well be that the judge had reservations about the factual correctness of this plea, but once it was accepted as the basis on which the court was to proceed it had to be regarded as correct and the sentence had to reflect the facts contained in it. The custodial sentence imposed by the judge was plainly inappropriate and excessive on those facts and the Court of Appeal were right to vary it.

But this was not the issue which was debated before your Lordships. That was a rather more difficult one, whether it was right in the circumstances of the case for the Crown to continue the prosecution on the basis of section 5 of the Sexual Offences Act 2003, rather than substituting one based on section 13. I agree with your Lordships that the Crown are not to be criticised for framing the charge in the first place under section 5, for on the allegations made by the complainant this was a true case of rape within that section. When the basis of the plea was finally settled, however, it was time for the Crown and the court to consider whether it was appropriate to continue to prosecute the appellant under section 5. I am of the opinion, in agreement with my noble and learned friend Lord Hope of Craighead, that it was not so appropriate. It is common knowledge, as my noble and learned friend Baroness Hale of Richmond has pointed out in paragraph 44 of her opinion, that the term "statutory rape" has been applied for many years to offences of unlawful sexual intercourse with children under thirteen years. This may be convenient lawyers' shorthand, but it is a crude generalisation, containing a use of the term "rape" which is often inaccurate. It certainly does not reflect the reality of an act of the kind of that which was the subject of the appellant's guilty plea. It would in my view be a good thing if the term now disappeared from the lawyers' vocabulary.

The issue on which your Lordships are divided is whether to continue the prosecution of the appellant under section 5 constituted a breach of his rights under article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. I do not propose to lengthen this opinion unnecessarily by repeating the reasons given by Lord Hope for holding that it did, for I have come to the conclusion that those reasons are correct and I agree with them. I am therefore of opinion that to continue the prosecution under section 5, instead of substituting a charge under the appropriate section 13, was a breach of the appellant's article 8 rights.

It follows that, like Lord Hope, I would allow the appeal and quash the conviction.

LORD MANCE

My Lords,

I have had the benefit of reading in draft the opinion of my noble and learned friends, Lord Hoffmann, Lord Hope of Craighead and Baroness Hale of Richmond. On the question whether the appellant's prosecution, conviction and sentence were in breach of his rights under article 6 of the European Convention on Human Rights, I agree with the opinions of Lord Hoffmann and Lord Hope and wish to add nothing.

On the question whether there was a breach of the appellant's rights under article 8 of the Convention, that article gives everyone a "right to respect for his private and family life ……". As my noble and learned friend, Baroness Hale, notes in paragraph 41, there are positive obligations inherent in an effective respect for private and family life. The State has not only to abstain from undue interference in the private lives of individuals, but may have to take positive steps to provide effective protection for those vulnerable to the sexual attentions of others.

S.5 of the Sexual Offences Act 2003 represents a positive step in that sense. Headed "Rape of a child under 13", it penalises an intentional penetration by a person with his penis of the vagina, anus or mouth of another person who is under 13. Neither a belief that the latter person is 13 or more nor consent (even if it were meaningful to speak of this in the case of a person so young) is any answer. The maximum penalty is life imprisonment. There is an overlap with the combination of ss.9 and 13 (headed "Sexual activity with a child"). In their originally proposed form, these sections did not apply to offences against children under the age of 13. As enacted, however, they cover inter alia the conduct covered by s.5, but they involve, in the case of an offence committed by a person under 18, on summary conviction imprisonment for a term not exceeding 6 months or a fine and on conviction on indictment imprisonment for a term not exceeding 5 years.

The complainant in the present case was aged 12 at the relevant time and the appellant was aged 15. At the time when the Crown Prosecution Service ("CPS") charged the offence under s.5, their understanding from the complainant was that she had not been willing to have sexual intercourse. The appellant pleaded guilty on 20th April 2005, but did so on the basis that (a) she had consented and (b) he had believed that she was 15, because she had told him so on an earlier occasion. The complainant accepted that she may at some point have told the appellant that she was 15, but did not agree that she had consented. A Newton hearing was fixed for 9th/10th June 2005 to enable the judge to determine the actual factual position before sentencing. But the complainant, supported by her mother, was "terrified about attending and giving evidence in court" and she and the Crown Prosecution Service ("CPS") were, in order to avoid her having to do this, content to accept the basis of plea proposed by the appellant. They informed the appellant's solicitors accordingly on 25th May 2005. The solicitors then wrote asking whether, in the event of the appellant being allowed to vacate his plea, the CPS would offer no evidence. The solicitors asserted that, had the basis of plea been accepted at the outset "then surely there would not have been a prosecution of the defendant at all"; and that "However leniently our client may be dealt with as a result of his basis of plea being accepted, he will in any event be stigmatised and disadvantaged for the rest of his life by the fact of his conviction for 'rape' and all that accompanies such a conviction (notification requirements, limits on employment and other opportunities)". The solicitors did not invite the substitution of any charge under ss.9 and 13. In order to do this they would anyway have had to apply to and persuade the judge to allow the appellant to change his plea. The only grounds on which they might have sought to persuade a judge to that unusual course would have been those which they now advance, for the first time, on appeal.

Article 8 "covers the physical and moral integrity of the person" (X & Y v. The Netherlands (1986) 8 EHRR 235, para 22. As early as in X v. Iceland (1976) 5 DR 86, 87 the European Commission of Human Rights said that article 8

"comprises also, to a certain degree, the right to establish and to develop relationships with other human beings, especially in the emotional field for the development and fulfilment of one's own personality".

In Von Hannover v. Germany (2005) 40 EHRR 1, concerning the publication of photographs of Princess Caroline of Hannover in various public contexts, the European Court of Human Rights said:

"50. The Court reiterates that the concept of private life extends to aspects relating to personal identity, such as a person's name (see Burghartz v. Switzerland (1994) 18 EHRR 101, para 24, or a person's picture (see Schüssel v. Austria (dec), no 42409/98, 21 February 2002, BAILII: [2002] ECHR 845 ).

Furthermore, private life, in the Court's view, includes a person's physical and psychological integrity; the guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings (see, mutatis mutandis, Niemietz v. Germany, (1993) 16 EHRR 97, para 29 and Botta v. Italy (1998) 26 EHRR 241, para 32. There is therefore a zone of interaction of a person with others, even in a public context, which may fall within the scope of 'private life' (see, mutatis mutandis, P.G. and J.H. v. the United Kingdom, no. 44787/98, § 56, 25 September 2001 and Peck v. United Kingdom (2003) 36 EHRR 41, para 57)."

Article 8 thus extends potentially well beyond spheres which might be described as physically private.

In the present case, it is said that the appellant's conviction and sentencing for an offence headed rape of a child under 13 involved both a stigma and practical consequences which will dog the appellant's life and which were disproportionate, at least bearing in mind the alternative offence under ss.9 and 13 under which he might have been charged and sentenced. The conditional discharge for a period of 12 months substituted by the Court of Appeal Criminal Division will mean that, provided the appellant commits no further offence during that period, the notification requirement under ss.80-92 and Schedule 3 of the Sexual Offences Act 2003 will end with it, although no such requirement would have applied at all had he been convicted of the lesser offence under ss.9 and 13. That is a minor distinction which could not in my view justify a conclusion that it was inappropriate or disproportionate to proceed under s.5.

The conditional discharge will also mean that the appellant will not generally be treated as having been convicted at all, but it is pointed out that for some purposes his conviction will still be material and prejudicial. For example, an employer or prospective employer may still request its disclosure, and take it into account, and it may be detrimental to the appellant's prospects of obtaining certain employment. It would still also require to be disclosed in certain contexts, for example if he applied for a firearms certificate or for a visa to travel to the United States. It could prevent him from putting himself forward as a person of good character without its disclosure in any future criminal proceedings. Remaining on the police national computer, it could also affect police and others' attitude to him, at least until further enquiry had been made. But all these consequences are consequences which would flow in very largely the same measure from conviction under ss.9 and 13, to which (despite somewhat faint suggestions to the contrary before the House) I do not see that the appellant could on any basis have objected.

In the final analysis, the core of the appellant's objection to what occurred lies in the stigma which he maintains he will sustain as a result of the heading attached to s.5. If he had any complaint on this score, it has to be, as I see it, on the basis that the use of the word "rape" in that heading involves an unjustified stigma which will affect his "right to establish and to develop relationships with other human beings, especially in the emotional field for the development and fulfilment of one's own personality" (see paragraph 67 above). However, as Baroness Hale observes, the concept of "statutory rape" has long been familiar as a description of the previous strict liability offence of unlawful sexual intercourse with a girl existing under s.5 of the Sexual Offences Act 1956. The actual ingredients of the offence are defined by the actual wording of the section. The ingredients are strict, but their strictness reflects the protective purpose of the section and the unreality or unreasonableness of speaking of any properly informed consent in relation to sexual intercourse with someone aged 12 or under. There would also be a, even if not necessarily the same, stigma attaching to the similarly strict offence in relation to those under 13 enacted by ss.9 and 13 under the heading "Sexual activity with a child". In either case, the appellant would have found himself in situations where he would have to explain the circumstances in order to dispel or diminish the stigma.

The criticism made is that the offence under s.5 should have been framed so as to contain an exception for a belief (at least if reasonably held) on the part of the defendant that the complainant was 13 or over, and/or possibly also for circumstances where the defendant was himself under a certain age. But the offence under s.5 is deliberately strict in its protective intention, and leaves such matters to be taken account of in sentencing. It is equally the case in the case of a complainant under the age of 13 that any such belief would be no defence under ss.9 and 13.

Having regard to the strong protective needs of children under 13, I do not regard either the statutory scheme as a whole, or the position in which the appellant is in after the Court of Appeal's substitution of a conditional discharge, as either unjustified or disproportionately prejudicial to the appellant's future development of his personality or of his relationships with others in any way which could involve a breach of article 8. Even if I had been inclined to favour any contrary view, I would have found it difficult to see any basis for intervention (beyond alteration of the sentence as ordered by the Court of Appeal in view of the five months for which the appellant had already been in custody prior to sentence) bearing in mind the course of events in this case, the plea of guilty which the appellant entered and the absence of any application to the judge at any stage either to vacate that plea or to stay the proceedings under s.5.