Sexual Offences Act 2003

Introduction

The Sexual Offences Act 2003 (the Act) comes into force on the 1 May 2004. It repeals almost all of the existing statute law in relation to sexual offences. The purpose of the Act is to strengthen and modernise the law on sexual offences, whilst improving preventative measures and the protection of individuals from sexual offenders.

The main provisions of the Act include the following:

• Rape is widened to include oral penetration
• Significant changes to the issue of consent and the abolition of the Morgan defence
• Specific offences relating to children under 13, 16 and 18
• Offences to protect vulnerable persons with a mental disorder
• Other miscellaneous offences
• Strengthening the notification requirements and providing new civil preventative orders.

The text of the Act and the explanatory notes can be accessed on-line at www.opsi.gov.uk.

Sexual offences committed after midnight on the 30 April 2004 will be subject to the Act. Offences committed before this date will be covered by the law in force at the time.

When reviewing a case in which a complainant is unsure as to date of the alleged offence, and it may have happened either before or after 30 April 2004, prosecutors must be aware of the principle in R v Bellman [1989] AC 836. In this case the House of Lords considered whether mutually destructive counts could appear on the same indictment, for example one count of rape contrary to 1956 Act and for the same conduct, one count of rape contrary to the 2003 Act. It was held that where there is prima facie evidence that a defendant has committed either crime A or crime B then both crime A and crime B may be charged and left to the jury, even though proof of crime A will establish that D cannot have committed crime B and vice versa.

Where it is clear that D has committed crime A or crime B but there is no prima facie evidence to say which crime has been committed then neither crime can be left to the jury.

If there is uncertainty as to whether the alleged offence occurred before or after the commencement date but there is prima facie evidence of either scenario, then there should be a charge under the old legislation and in the alternative, a charge under the new legislation. For further guidance, see Gateway Policy 64/2005.

The Act is divided into two parts. Part 1 deals with new offences and widens the scope of existing offences. Part 2 strengthens the sex offenders register (notification requirements), and establishes new civil preventative orders.

You will see reference in this guidance to 'A' as the defendant and 'B' as the complainant, which reflects the wording of the 2003 Act.

Home Office guidance on Part 1 and Part 2 of the Act can be accessed on-line from the Home Office website.

This guidance seeks to clarify issues surrounding the most important measures in the Act, such as consent, non-consensual offences, offences against children and vulnerable adults. It does not deal with all offences in the Act, the notification requirements in detail or the civil preventative orders.

The drafting of the Act allows the prosecution considerable discretion in charging a particular offence. Prosecutors should choose the most appropriate charge to fit the circumstances of the case, taking account of the courts' sentencing powers. As a general rule, where the circumstances of a case match a particular offence specified in the Act, this offence should be charged, for example section 25 (familial child sex offence) where the victim is 14 should be charged rather than section 9 (sexual activity with a child), so long as all the elements can be proved.

Many offences apply where the victim is under 13. Offences on children under 13, where age can be proved, should be charged under sections 5-8, where the circumstances fall within those sections.

In addition, many offences relating to children under 16 and 18 do not require consent. These do not prevent prosecutors from charging non-consensual offences where appropriate.

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Terminology

• Consent
• Sexual
• General Interpretation

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Consent

Under the Act the non-consensual offences are sections 1-4 namely rape, assault by penetration, sexual assault and causing a person to engage in sexual activity. The Act removes the element of consent from many offences, so that only the act itself and the age or other constraints need to be proved. They include:

• Children under 16 (including under 13)
• Children under 18 having sexual relations with persons in a position of trust
• Children under 18 involved with family members over 18
• Persons with a mental disorder impeding choice
• Persons with a mental disorder who are induced threatened or deceived
• Persons with a mental disorder who have sexual relations with care workers

The Act has three important provisions relating to consent, which apply to sections 1-4, namely rape, assault by penetration, sexual assault and causing a person to engage in sexual activity. They are:

1. A statutory definition of consent
2. The test of reasonable belief in consent
3. The evidential and conclusive presumptions about consent and the defendant's belief in consent

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Statutory definition of consent

Section 74 defines consent as "if he agrees by choice, and has the freedom and capacity to make that choice". Two fundamental questions need to be answered.

• First, whether a complainant had the capacity (i.e. the age and understanding) to make a choice about whether or not to take part in the sexual activity at the time in question. There is no definition of capacity in the 2003 Act.

The question of capacity to consent can be an important issue when a complainant is voluntarily intoxicated to the point of stupefaction at the time of the incident. In R v Bree [2007] EWCA 256, the complainant alleged that she had been raped after an evening of heavy drinking. Her memory was very hazy and she appeared to suffer gaps in her recollection. The defendant's case was that the hazy recollection was either due to the effects of alcohol which made her forget, or the complainant was lying. In his directions to the jury, the trial judge merely reiterated the statutory definition of consent and stated that the complainant's intoxication may have an impact on her credibility. The defendant appealed his conviction on the basis, inter alia, that the trial judge should have provided greater assistance on 'capacity' and 'consent' to the jury.

In quashing the conviction, the Court of Appeal made the following comments:

• The 2003 Act provides a clear definition of 'consent' for the purposes of the law of rape, and by defining it with reference to "capacity to make that choice", it sufficiently addresses the issue of consent in the context of voluntary consumption of alcohol by the complainant;
• If, through drink (or for any other reason) the complainant has temporarily lost her capacity to choose whether to have intercourse on the relevant occasion, she is not consenting, and subject to questions about the defendant's state of mind, if intercourse takes place, this would be rape;
• Where the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape;
• Capacity to consent may evaporate well before a complainant becomes unconscious. Whether this is so or not, however, is fact specific;
• As regards the summing up, the jury should have been given assistance with the meaning of 'capacity' in circumstances when the complainant is affected by voluntarily induced intoxication, and also whether, and to what extent they could take that into account in deciding whether she had consented.

In summary, R v Bree emphasises the importance of 'capacity to consent' in cases when it appears that a complainant has been extremely affected by the voluntary consumption of drink and/or drugs.

In cases similar to Bree, prosecutors should carefully consider whether the complainant has the capacity to consent, and where independent counsel will present the case, ensure that he/she is instructed to put the Crown's case on this basis.

As well, counsel should be specifically informed of this judgement and its implications for the case in hand.

Prosecutors should consider with investigators whether further, supporting evidence could be obtained to demonstrate that the complainant was so intoxicated that he/she had lost their capacity to consent. For example, evidence from witnesses who can attest to the extreme intoxicated state of the complainant. If the complainant reported the alleged rape soon after it occurred, then the doctor should include in their statement any information as to the complainant's state. In addition, it may be possible to obtain expert evidence in respect of the effects of alcohol/drugs and if relevant, the effects if drink and drugs are taken together As well, consideration should be given as regards experts providing back calculations as regards the level of alcohol in the blood at the time of the incident.

HCAs and counsel should be prepared to remind the trial judge of the need to assist the jury with the meaning of capacity. Although the judgement provides no definition of 'capacity', assistance can be gained from the common law which is summarised in Rook and Ward on Sexual Offences Law and Practice (3rd edition) at paragraph 1.94 as "a complainant will not have had the capacity to agree by choice where their understanding and knowledge were so limited that they were not in a position to decide whether or not to agree". It is also worthwhile to bear in mind R v Lang (1975) 62 Cr.App.R. 50 in which the Court of Appeal considered the question of whether an intoxicated complainant understood her situation and was capable of consenting under the 1956 Act. The Court found that the prosecution had to prove that the complainant's:

"..understanding and knowledge were such that she was not in a position to decide whether to consent or resist."

• Second, whether he or she was in a position to make that choice freely, which is not constrained in any way. Assuming that the complainant had both the freedom and capacity to consent, the crucial question is whether the complainant agrees to the activity by choice.

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Reasonable belief in consent

In the offences of rape, assault by penetration, sexual assault and causing a person to engage in sexual activity without consent, a person (A) is guilty of an offence if (s)he:

• Acts intentionally;
• (B) does not consent to the act; and
• (A) does not reasonably believe that B consents.

Deciding whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents (subsection (2) of sections 1-4). It is likely that this will include a defendant's attributes, such as disability or extreme youth, but not if (s)he has any particular fetishes.

This is a major change in the law and the Act abolishes the Morgan defence of a genuine though unreasonably mistaken belief as to the consent of the complainant. It means that the defendant (A) has the responsibility to ensure that (B) consents to the sexual activity at the time in question. It will be important for the police to ask the offender in interview what steps (s)he took to satisfy him or herself that the complainant consented in order to show his or her state of mind at the time.

The test of reasonable belief is a subjective test with an objective element. The best way of dealing with this issue is to ask two questions.

1. Did the defendant believe the complainant consented? This relates to his or her personal capacity to evaluate consent (the subjective element of the test).
2. If so, did the defendant reasonably believe it? It will be for the jury to decide if his or her belief was reasonable (the objective element).

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Evidential presumptions

If the defendant did the relevant act, as defined in section 77 (the sexual activity within sections 1-4), and the circumstances specified in subsection (2) exist and the defendant knew they existed, then the complainant is to be taken not to have consented. These circumstances are:

1. Any person used/threatened violence against the complainant at the time of the act or immediately before the first sexual activity began;
2. Any person caused the complainant to fear at the time of the act or immediately before the first sexual act, that violence was being used/would be used immediately against another person;
3. The complainant was, and the defendant was not, unlawfully detained at the time;
4. The complainant was asleep or otherwise unconscious at the time;
5. The complainant was unable to communicate consent to the defendant because of their physical disability e.g. where a complainant is unable to communicate verbally or to nod or shake their head.
6. Any person administers or causes the complainant to take a substance, without the complainant's consent, which was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act.

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Evidential presumptions - key points

The defendant has to know that one of the circumstances existed;

• The requirement only is that any one circumstance needs to be proved, even though there may be more than one circumstance that existed;
• The threat of/actual violence in (a) and (b) need not come from the defendant;
• The element in (a) and (b) is one of immediate violence. This is not defined but the courts may define it in a similar way as under the Public Order Act 1986 i.e. not meaning instantaneous violence, but only a relatively short time interval between the act which is threatening and the violence R v Horseferry Road Magistrates' Court ex p. Siadatan [1991] 1 QB 280.

If any one of the presumptions is proved, then the complainant is deemed not to have consented. The Act imposes an evidential burden on the defendant to adduce sufficient evidence to raise an issue that the complainant consented and whether or not the defendant reasonably believed the complainant consented. The question whether the defendant adduces sufficient evidence to raise an issue to be left to a jury is a matter for the judge. The issue should be left to a jury where the evidence, if accepted, raises a prima facie case. Once the defendant has done this, it will be for the prosecution to prove beyond a reasonable doubt, that the complainant did not consent and that the defendant did not reasonably believe the complainant consented.

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Conclusive presumptions

If the defendant performs the relevant act and any one of the circumstances specified in subsection (2) existed, it is conclusively presumed that the complainant did not consent, and that the defendant did not believe that the complainant consented. These circumstances are:

1. The defendant intentionally deceived the complainant as to the nature or purpose of the relevant act e.g. where a defendant conducted breast examinations for his own sexual gratification, on the pretence that he was collecting data for a cancer screening program R v Tabassum [2002] 2 Cr App R 328;
2. The defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant This extends the categories of impersonation sufficient to invalidate consent beyond a husband or regular sexual partner.

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Sexual

Section 78 provides a definition of "sexual" for the purpose of the offences in Part 1, except section 71 (sexual activity in public lavatories).

"Any activity is sexual if a reasonable person would consider that:

1. whatever its circumstances or any person's purpose in relation to it, it is because of its nature sexual(e.g. sexual intercourse, masturbation); or
2. because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual".

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Sexual - key points

In deciding whether an activity is sexual, one has to first look at the nature of the activity. If the activity is by its nature sexual (e.g. sexual intercourse, masturbation) then it is sexual.

Where the nature of the activity may or may not be sexual, then one looks at the circumstances or purpose (or both) of the defendant in deciding whether it is sexual (e.g. R v Price The Times 20 August 2003 – where stroking a woman's leg over trousers and below the knee was capable of amounting to an indecent assault).

Where the nature of the act cannot be sexual, it is not made sexual by a person having a secret fetish.

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General interpretation

Section 79 defines terms for the purposes of the Act. These terms are:

• Penetration is a continuing act from entry to withdrawal.
• Clarification that parts of the body include those surgically constructed (e.g. through gender re-assignment).
• Image means a moving or still image produced by any means.
• References to an image of a person include an imaginary person.
• Mental disorder has the same meaning as section 1 of the Mental Health Act 1983.
• References to observation are to observation whether direct or by looking at an image.
• Touching includes with any part of the body, with anything else or through anything and also includes penetration.
• Vagina includes vulva.
• Animal parts equivalent to vagina and anus.

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Intent

The offences in the Sexual Offences Act 2003 are crimes of basic intent – R v Lee Heard (CA) (2006)

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Commencement date and date of the offence

The Sexual Offences Act 2003 only applies to those offences that are committed after midnight 1st May 2004.

When it not possible to prove whether the offence occurred before or after 1st May 2004, section 55 Violent Crime Reduction Act 2006 applies. This allows a defendant to be convicted where:

• He is charged in respect of the same conduct with an offence under Sexual Offences Act 2003 and an offence specified in section 55 (2), which includes an offence under Sexual Offences Act 1956; and
• The only barrier to his conviction of the 2003 offence is that it cannot be proved beyond reasonable doubt that the conduct took place after the 2003 Act came into force; and
• The only barrier to his conviction of the pre commencement offence is that it has not been proved beyond reasonable doubt that the conduct took place before the enactment providing for the offence was repealed.

In such circumstances, there is a conclusive presumption for the purpose of determining guilt that the conduct took place:

• Before the 2003 Act came into force, where the maximum penalty for the pre commencement offence is less than the maximum sentence under the 2003 Act; or
• After the 2003 Act came into force for every other offence.

Section 55 applies to any proceedings, whenever commenced, other than proceedings in which the defendant has been acquitted or convicted of the pre commencement or the 2003 offence.

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Non-consensual offences

Sections 1-4 deal with offences where the defendant (A) engages in sexual activity with the complainant, without the complainant's (B's) consent.

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Rape (section 1)

The elements of rape are:

1. A intentionally penetrates the vagina, anus or mouth of another person (B) with his penis;
2. B does not consent to the penetration, and
3. A does not reasonably believe that B consents.

Penetration of the mouth is included.

Rape is still a crime of basic intent, and drunkenness is no defence.

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Penalty

Rape is indictable only and carries a maximum penalty of life imprisonment.

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Recent cases on sentencing

Attorney General's Reference (No. 81 OF 2005) sub nom R v Leslie Ryder CA (Crim Div) 19/10/2005: A sentence of 4 years and 4 months' imprisonment was unduly lenient for two counts of rape. The facts of the case were that R had attacked the victim late at night and had threatened to stab her before taking her to a graveyard. R forced the victim to perform oral sex and penetrated her twice prior to ejaculating on her face. R had previous convictions but not for sexual offences. R had shown remorse but was assessed as presenting a high future risk due to his failure to provide any explanation for the attack.

The Court held that the sentence imposed was not just lenient but was unduly lenient. The offences were very serious, they had involved the threat of the use of a knife and they had been carried out late at night with a degree of planning. Moreover, the victim had been degraded. The starting point for sentencing after a trial should have been a sentence of more than 8 years' imprisonment. Taking into account R's guilty plea and double jeopardy the sentence was quashed and a sentence of 7 years' imprisonment was substituted.

R V B [2006] EWCA Crim 330: A teacher (V) had been working in her classroom when B, who was a 15-year-old pupil, entered. B grabbed V by the neck, dragged her from the classroom, told her he would kill her, forced her to perform oral sex twice and ejaculated in her mouth. He then fled. V said the attack had been devastating and had left her unable to teach. The sentencing judge found, having considered the psychiatric reports, that B was a potentially dangerous young man at high risk of sexual violence and passed an indeterminate sentence detaining B for life and, taking into account B's young age, fixed a notional sentence of nine years with a specific term of three years and eight months. B argued that the sentencing judge had been wrong in principle as he had failed to have regard to any of the mitigating factors and that, in the absence of the specific factors outlined in R v Millberry (2002) EWCA Crim 2891, there were no aggravating factors despite the fact that the offence was extremely serious.

The Court of Appeal held that the instant case was a unique one where exceptional violence had been used. While the guilty plea, B's young age, his intelligence and strong family support were strong mitigating factors, they had to be weighed and balanced against the seriousness of the offence. An indeterminate sentence was appropriate. There were substantial and grave aggravating factors and the sentence was not manifestly excessive. While the age of an offender was something a court had to take strongly into account, it could not be a matter that prevented an appropriate sentence on the particular facts being passed.

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Evidential considerations

Rape cases can be difficult to review because evidence can be limited to the victim's word against the defendant's, with the major issue being whether or not the victim consented. Prosecutors should only make full charging decisions in rape cases having reviewed an Evidential Report in accordance with the Directors Guidance, or a full file where the DPP's Guidance is not yet in effect. The only exception should be in the early stages of cases where bail is being withheld when the interim threshold test may apply (see DPP's Guidance issued under the Criminal Justice Act 2003 relating to statutory charging). It is important that you carry out a thorough consideration of the evidence and circumstances of these cases, seeking more information and trying to strengthen or develop the case before any decision is taken not to prosecute.

In keeping with the recommendations made by HMCPSI and HMIC in their Report on the Joint Investigation and Prosecution of Cases Involving Allegations of Rape all rape cases should be allocated to specialist lawyers, who should be responsible for the case from advice or charging decision stage to conclusion of any proceedings. Further, all decisions to drop or substantially reduce the prosecution case should be discussed with a second specialist lawyer before a final decision is taken. If a Duty Prosecutor is not a specialist, he or she should contact a specialist to decide whether or not to charge a suspect. In exceptional circumstances where the Duty Prosecutor cannot contact a rape specialist, the Duty Prosecutor will have to make the charge decision and refer the case to a rape specialist at the earliest opportunity.

False and /or malicious complaints are sometimes made and care should be exercised when reviewing such allegations. Any delay in reporting the offence is just one of many factors to consider which may or may not be significant in a particular case. Corroboration is not essential but should be looked for. Any medical or scientific evidence will need to be carefully examined.

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Charging practice

Prosecutors should specify in the indictment whether the vagina, anus or mouth was penetrated. Where penetration of more than one orifice occurs, separate counts of rape should be preferred.

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Alternative charges

Prosecutors should use alternative counts sparingly and only where there are doubts concerning the issues e.g. evidence is unclear whether the victim was penetrated by a penis or other object, an alternative of assault by penetration would be appropriate.

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Criminal Justice Act 2003

When reviewing rape cases, prosecutors should bear in mind the CJA 2003 provisions on the admission of evidence of bad character and hearsay. Such evidence may be of particular pertinence in a rape or sexual assault matter. For further guidance, refer to the Legal Guidance chapters on Bad character evidence and Hearsay, elsewhere in this guidance.

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Victim - previous sexual history

Sections 41-43 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA) restrict the way in which evidence or questions about a complainant's sexual behaviour beyond the circumstances of the alleged offence can be introduced in trials for rape and other sexual offences (Archbold 8-123m-123r). The procedure for 41 applications is contained in Part 36 Criminal Procedure Rules. It is essential that prosecutors are robust in dealing with applications under section 41.

These sections apply to sexual offences which are defined as any offence under Part 1 of the 2003 Act (paragraph 41(3) of Schedule 6).

Evidence of previous sexual history will only be permitted if statutory criteria are met and the court considers that it may reach an unsafe conclusion on an issue to be decided in the case if such evidence was not admitted. Any questions asked or evidence adduced must relate to a specific instance of behaviour.

Section 43 sets out the procedure to be adopted when applications are made under section 41. The provisions are detailed and you should refer to Casework Bulletin 32/2000 for detailed guidance.

In prosecuting cases, note section 41(5) so that evidence is not unintentionally adduced by the prosecution that will allow the defence an opportunity to seek to adduce evidence of sexual behaviour of the victim in rebuttal of that prosecution evidence.

Sections 41-43 of the YJCEA were considered by the House of Lords in R v A [2002] 1 A.C 45, which held that a prior consensual relationship between the complainant and the defendant might in some circumstances be relevant to the issue of consent. This may, in appropriate cases, apply to the test of reasonableness in non-consensual offences under the Act. However the House accepted that the complainant must not be treated unfairly. Prosecutors should encourage the court to consider section 41 in the context of the judgment overall. To do otherwise may lessen the practical effect of the purpose of section 41. Detailed guidance on R v A can be found in Casework Bulletin 21/2001.

Recent cases on section 41 are:

R v F [2005] EWCA Crim 493, where the judge had wrongly excluded video and photographic evidence relating to an adult relationship between an alleged victim of child abuse and the defendant under section 41. F has been accused of raping and sexually assaulting his step-daughter over a number of years. He denied this and stated that they had had a consensual adult sexual relationship. He sought to adduce evidence of the relationship by relying on videos and photographs. The Court of Appeal held that the adult relationship was a relevant issue in the case not only, as the judge found, to F's contention on V's motive to making a complaint, but also to the critical question for the jury of whether F had abused V as a child. The dispute about the nature of the adult relationship was vital to the jury's decision. F was entitled to rebut V's account of the adult relationship by calling evidence to support his case that V was not submitting but fully participating. The evidence could have been shown in V's absence to avoid humiliation.

R v Samir Abdelrahman [2005] EWCA Crim 1367. The appellant (X) appealed against his conviction for rape. The complainant had been working as a prostitute at the time of the rape. At trial, X sought to pursue certain lines of questioning concerning the complainant's sexual experience in order to elicit evidence that previous allegations made by the complainant were false and therefore the instant allegations were also likely to be false. The judge refused to permit such questioning. The Court held that as the purpose was to establish the complainant as a maker of false allegations of rape, it was undoubtedly a matter of credibility rather than being related to any substantive issue between the prosecution and the defence in the instant case. The purpose of the legislation was not simply to preserve the sexual reputation of a complainant, it was to protect her from having to relive previous experiences and ordeals in the witness box save to the extent permitted by s.41. In the circumstances, X's conviction was safe.

R v (1) Zunur Miah (2) Syed Ebad Uddin [2006] EWCA Crim 1168, CA (Crim Div). The appellants (M and U) appealed against their convictions for kidnap and indecent assault on a female. M was acquainted with the complainant and they had attended a party together. Three months later they had arranged to meet again. The complainant said that M offered her a lift in his car and then M and his passenger U had refused to let her leave and had sexually assaulted her. M and U said that they had both kissed and touched the complainant over her clothes with her consent. At trial M and U sought leave to adduce evidence and cross examine the complainant on her sexual activity at the party. The application was made under section 41 (3)(a) YJ and CE Act 1999 (i.e. that it was a relevant issue in the case and that issue is not an issue of consent) on the grounds that such evidence was relevant to the issue of whether they had an honest belief that the complainant was consenting. The alleged previous sexual conduct was that at the previous party, C had had oral sex with M as well as having sexual intercourse with another male.

The judge allowed cross examination of the complainant in relation to the oral sex and he allowed U to give evidence that he had been at the party, that he had heard that M and C had oral sex and that he had heard that she had had intercourse with another man. The judge refused leave to call evidence from that man or for evidence of his identity to be given as the source of M and U's belief in her having sex. M and U argued that; (1) without evidence of the events at the party the jury would have found it highly improbable that M and U could have believed that the complainant was prepared to engage in sexual conduct in the car, that the evidence went to the issue of belief and not to consent and was therefore admissible under s.41(3)(a); (2) they should have been allowed to cross examine the complainant about her sexual experience with the other man at the party, to give evidence themselves about it and to call the other man to give evidence.

The Court held: (1) The judge had been right to refuse to permission to call the other man to give evidence and the cross-examination of C on whether she had had sex with the man. That evidence was inadmissible as it was irrelevant to the issue of whether M and U held an honest belief that the complainant was consenting at the relevant time. An honest belief was not dependant on whether in the past; there had been sexual relations between C and the other man. (2) Once it was conceded that evidence relating to M and U's belief was admissible, the identification of the source of the information on which M and U had based their belief was, in principle, relevant. There was no basis on which the judge could properly have sought to exclude such evidence. However, failure to admit the evidence did not render the conviction unsafe. Conviction upheld.

At an earlier pre-trial hearing, prosecution counsel had not opposed the application by Miah to cross-examine the victim on her previous sexual activity with him at the party. As the issue was whose version of events in the car was true, then it is arguable that in fact, this evidence was not relevant and therefore should not have been conceded by counsel. The trial judge indicated that if the prosecution had not agreed the point, then he would have not admitted the evidence (para. 19 of the judgement) and at paragraph 37, the Court of Appeal summarised the position thus:

"In our judgment, the mistaken exclusion of this evidence cannot have rendered the verdicts unsafe. The evidence of belief was of marginal, if any relevance, to the count of kidnapping. It is difficult to see how the appellants could contend that if they believed she consented to the sexual conduct alleged by reason of her previous sexual conduct at a party, she was thereby consenting to be kidnapped. As to the count of indecent assault, the real issue was whether the truth of what happened in the car lay in the appellants' account or the complainant's; the mistaken exclusion of the evidence in relation to the identification of the source of their belief in consent does not, in our judgment, affect the safety of the convictions for indecent assault."

R v Sorova (Naveed) CA (Crim Div) 28 July 2006 [2006] EWCA Crim 1884. The appellant (S) appealed against conviction on one count of rape. S had been charged with inter alia, the rape of a 19-year-old girl (C). The defence case was that all the sexual activity between them had been consensual. In her statement, C said that during the incident she had told S that she was a virgin in order to put him off, but that she had had sexual intercourse once before with a boyfriend, and at trial C gave evidence to that effect. The judge pointed out to the jury that S was not allowed to ask any questions about sexual history, and he indicated that S did not accept that there was only a very limited sexual knowledge, but could ask no questions about it whatsoever. The jury went on to find S guilty of rape. S contended that the impact of section 41 meant that evidence of C's previous sexual history was wrongly introduced by the prosecution at trial in circumstances that would not have been permitted to the defence. S submitted that that constituted a breach of his right to a fair trial under A6 as it infringed the principle of "equality of arms", because in the context of what was regarded as permissible questioning of a complainant about her previous sexual history the defence had been placed at a disadvantage. S argued that the prohibitions in s. 41 of the 1999 Act should embrace the prosecution, and as they did not, the process was unbalanced, operating adversely to the defendant. S further contended that a critical piece of fresh evidence should be adduced.

The appeal was dismissed. The purpose of the legislation was to prevent anyone, prosecution or defence, from asking questions that might cause embarrassment or difficulty to a complainant, male or female, about matters that were entirely personal, interference with which damaged the complainant's autonomy. In the instant case, the prosecution had not relied, directly or indirectly, on C's previous sexual history. The issue of C's sexual experience had only arisen for consideration because, as an integral part of the incident, and to avoid the rape, she had made what was admittedly an untruthful claim that she was a virgin. What she had said to S was relevant and admissible. From the prosecution's point of view it had been important evidence bearing on the issue of consent. No justified complaint could be directed at the admission of that evidence. In any event, the protective effect of section 78 PACE was perfectly apt to be deployed in an appropriate case, where it was thought by the judge that the impact of s. 41 of the 1999 Act on a defendant might produce an adverse effect on the fairness of the proceedings. No such unfairness had arisen in the instant case. The judge had not been asked to exclude any part of C's evidence about what had been said to S. In those circumstances, S's conviction was not rendered unsafe on that ground.

R v M (DM) CA (Crim Div) 17 May 2006 [2006] EWCA Crim 1971. The appellant (M) appealed against his conviction on three counts of indecent assault and one count of rape. The victim (V) was his stepdaughter. The offences took place in 1999 to 2000, when she was 13 and 14. The prosecution had relied entirely on V's evidence; the issue for the jury was whether she was telling the truth or whether M's denials might be true. M contended, inter alia, that: (1) the judge had wrongly refused the defence leave to cross-examine V about her sexual behaviour on another occasion, which was when V was 17 and she told her boyfriend that their first act of sexual intercourse together was her first time; and (2) there was new evidence to the effect that, in 2003, V had lied to a friend by telling her she was pregnant and then telling her she had given birth to a baby girl.

The appeal was dismissed: (1) The judge had been correct to refuse leave to cross-examine V under section 41. It was unimaginable that if the jury knew of the allegation that V, at the age of 17, had told her boyfriend that she was a virgin when she met him, they would find that that refuted V's central allegation that she had been raped by M. The truth of what V said at such a moment would not have assisted the jury in seeking to establish whether she had been raped some years earlier by somebody else. There was a material difference between cases where the victim allegedly made false allegations of sexual offences against other men, and the situation in the instant case where the suggestion was that, some time after the offences and quite unrelated to them, V falsely claimed to be pregnant. The new evidence went only to credit, and in the light of it the convictions were not unsafe.

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Keeping the victim informed

The CPS and prosecution advocates have a responsibility to ensure that complainants are made aware of the outcome of any ruling by the trial judge to adduce evidence of previous sexual behaviour. This is in accordance with the Prosecutors Pledge and the CPS/Bar Standard on Communication with Victims and Witnesses.

It will be important that the decision is communicated in such a way that it does not amount to coaching or rehearsing the evidence of the victim. The defence advocate should be made aware of the extent of the information that is given to the victim.

If the application is made prior to trial, then prosecutors should request that the responsible person in Witness Care Unit should communicate the result, along with other information regarding progress of the case.

If the courts grant leave to cross-examine a complainant about previous sexual behaviour, it will be necessary to review the position relating to special measures It may be necessary to make an application to the court for one or more special measures provided by the YJCEA or to apply to vary a pre-existing direction. In reaching this decision it will be important to obtain the views of the witness about how the evidence may be presented, given that the nature of the potential cross-examination may be more intimate than was first anticipated.

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Code for Crown Prosecutors

A prosecution will usually take place unless there are public interest factors tending against prosecution which clearly outweigh those tending in favour. Rape is so serious that a prosecution is almost certainly required in the public interest.

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Notification requirements

A person must comply with the notification requirements if (s)he comes within section 80 of the 2003 Act (see Schedule 3 of the 2003 Act).

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Assault by penetration (section 2)

The previous offence of indecent assault under the Sexual Offences Act 1956 covered a very wide range of offending behaviour, which the 2003 Act breaks down into two clearly defined offences of assault by penetration and the lesser offence of sexual assault.

The elements of assault by penetration are:

A person (A) intentionally penetrates the vagina or anus of another person (B) with a part of their body or anything else

1. The penetration is sexual
2. (B) does not consent to the penetration, and
3. (A) does not reasonably believe that B consents.

The meaning of sexual, consent, reasonable belief and the evidential and conclusive presumptions all apply to this offence.

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Key points

• There has to be penetration of the vagina or anus but not the mouth.
• Penetration is of any part of A's body (e.g. finger, tongue, toe) or by anything else (e.g. bottle).
• Offence can be committed by either gender.
• This offence should be charged where there is insufficient evidence to charge rape, for example, if the victim is unsure if penetration was by a penis or something else.

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Penalty

The offence is indictable only with maximum penalty of life imprisonment.

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Recent cases on sentencing

R v D (2005) CA (Crim Div)**: The correct starting point for the offence of assault by penetration where the victim was vulnerable and the digital penetration was not prolonged was in the region of four or five years' imprisonment.

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Code for Crown Prosecutors

This offence is in essence similar to rape and a prosecution is almost certainly required in the public interest.

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Notification requirements

A person must comply with the notification requirements if (s)he comes within section 80 of the 2003 Act (see Schedule 3 of the 2003 Act).

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Sexual assault (Section 3)

The elements of the offence of sexual assault are:

1. A person (A) intentionally touches another person (B)
2. The touching is sexual
3. B does not consent to the touching, and
4. A does not reasonably believe that B consents.

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Key points

• The meaning of sexual, consent, reasonable belief and evidential and conclusive presumptions apply to this offence.
• Touching is widely defined and includes with any part of the body, or with anything else, and can be through clothing. In R v H [2005]**, the Court of Appeal held that the touching of an individual's clothing was sufficient to amount to 'touching' for the purposes of section 3. Where touching was not automatically by its nature sexual, it was possible to ascertain whether the touching had been sexual by determining whether by its nature it might have been sexual and if so whether in the circumstances the purpose had in fact been sexual.
• Touching includes touching amounting to penetration e.g. kissing. Where there is sufficient evidence, penile penetration of the vagina, anus or mouth should be charged as rape and penetration of the vagina or anus with any part of a person's body or other object should be charged as assault by penetration.
• Either gender can commit the offence.

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Penalty

The offence is either way with the statutory maximum penalty in the Magistrates' court or 10 years imprisonment in the Crown Court.

Where the offender is under 18, the offence comes within section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 (Schedule 6 of the 2003 Act).

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Charging practice

• If touching does not occur, then consider an attempt.
• Various activities previously covered by the offence of 'indecent assault' now fall within the definitions of offences under the 2003 Act (e.g. assault by penetration, child sex offences and vulnerable adults subjected to a sexual assault). This means that the offence of sexual assault (section 3) will largely now be used in relation to lesser forms of sexual assault than previously.
• The exact nature of the sexual activity involved will be a key factor in assessing the seriousness of the offence e.g. on the upper end of the scale, using one's naked genital organs to stroke, rub, press or touch the naked genital organs of another to at the lower end of the scale of patting someone on the bottom through clothing. There may be the presence of aggravating features that make the offence significantly more serious, such as, abuse of position, use of drugs or other substances, use of violence/coercion, use of a weapon in the offence, repeated offending etc.

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Notification requirements

Whether a person has to comply with the notification requirements will depend on the age of the victim and/or the sentence imposed (see Schedule 3 of the 2003 Act).

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Causing sexual activity without consent (Section 4)

The elements of this offence are:

1. A person (A) intentionally causes (B) to engage in activity
2. The activity is sexual
3. (B) does not consent to engaging in the activity
4. (A) does not reasonably believe that (B) consents

This offence covers situations where, for example:

• a victim is forced to carry out a sexual act involving their own person, such as self-masturbation,
• to engage in sexual activity with a third party, who may be willing or not, or
• to engage in sexual activity with the offender e.g. woman forces a man to penetrate her.

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Key points

• The meaning of sexual, consent, reasonable belief and the evidential and conclusive presumptions apply to this offence.
• The offence can be committed by words alone e.g. defendant makes his victim carry out a sexual act, such as masturbation, that only involves the victim.
• The mode of trial and sentence varies depending on whether there is or is not penetration.
• One of the purposes of this offence, in addition to the wider range of sexual activity, is to create a female equivalent of the offence of rape, which carries the same level of punishment for what amounts to be the same type of offending behaviour.

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Penalty

The offence carries life imprisonment if penetration is involved, i.e. of B's mouth with a penis, penetration of a person's anus or vagina with a part of B's body or by B with anything else, or penetration of a person's mouth with B's penis.

Otherwise it is an either way offence carrying a maximum of 10 years imprisonment.

In determining the seriousness of the offence, the two main factors will be the nature of the sexual activity and the level of the offender's culpability. In addition there may be aggravating factors present, e.g. force, coercion, use of a weapon, etc.

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Charging practice

This section creates two separate offences because the maximum sentence differs depending on proving penetrative or non-penetrative activity R v Courtie [1984] AC 463. In drafting charges and indictments, you should specify whether the sexual activity is either penetrative or non-penetrative sexual activity.

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Notification requirements

A person must comply with the notification requirements if (s)he comes within section 80 of the 2003 Act (see Schedule 3 of the 2003 Act).

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Offences against children

The 2003 Act is "an Act to make new provision about sexual offences, their prevention and the protection of children from harm from other sexual acts, and for connected purposes".

The 2003 Act provides for three categories of offences against children of different age. They are:

• Offences against those under 13
• Offences against those under 16
• Offences against those under 18.

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Offences against children under 13

Introduction – Sections 5 - 8

• Sections 5-8 apply the main non-consensual offences to children under 13, except that consent in these offences is irrelevant. A child under 13 does not, under any circumstances, have the legal capacity to consent to any form of sexual activity.
• The under-13 offences overlap to a very significant extent with the child sex offences (ss. 9 to 15 of the 2003 Act), which are designed to protect children under 16. However, the intention of Parliament is that anyone who engages in sexual activity with a child under 13 should be prosecuted with one of the offences specifically designed to protect such children. This is to ensure the availability of the higher maximum penalties for the under-13 offences.
• During the passage of the Sexual Offences bill, Lord Falconer said: "a fundamental justification for the under-13 offence is the age and vulnerability of the victim. We do not think it is right that where the victim is 12 or under question of consent should arise. There will be many cases where it would be utterly invidious for a 12 year old or under to have to give evidence in relation to consent."
• These offences are ones of strict liability as to age. The prosecution has to prove only two facts. First, the intentional sexual activity and second the age of the complainant at the date of the sexual activity, e.g. a certified copy of a birth certificate together with evidence of identity.
• Note: R v G AND THE SECRETARY OF STATE FOR THE HOME DEPARTMENT [2006] EWCA Crim 821 CA. Offences of strict liability are compatible with A6.2 ECHR.

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Rape of a child under 13 (Section 5)

• Section 5 makes it an offence for a person intentionally to penetrate with his penis the vagina, anus or mouth of a child under 13.
• In cases where a defendant admits sexual activity with a child under 13 but states that the victim consented, the proper course is to invite the court to hold a Newton hearing. A section 1 rape count should not be added as an alternative, with the case then proceeding to full trial.

Juries should not be asked to deliberate upon issues that are critical to sentence and which are not necessary to substantiate a charge in law. Rather these are questions that a judge should consider by hearing evidence on the relevant point, and according to the procedure as set out in R v Newton 77 Cr App.R. 13.

In R v Young (1990) 12 Cr. App. R.(S.) 279, CA, a defendant wanted to plead guilty to buggery of a female on the basis that the complainant had consented. Although consent was not an essential element of the offence, an alternative count was added which specified that there had been no consent. The Court of Appeal disapproved of the indictment on the basis that the jury were being asked to consider a question which was relevant to sentence and therefore, was a matter for the judge alone to resolve.

• For further guidance, please refer to Gateway Pol 73 2005.
• When dealing with a Newton hearing in such circumstances, prosecutors must bear in mind the Attorney General's Guidelines Acceptance of Pleas. In the recent case of Attorney General's Reference No. 31 of 2006 sub nom R v Mutubila [2006] EWCA 1040, the Court of Appeal emphasised the importance of following the Attorney General's Guidelines on the Acceptance of Pleas (issued October 2005). These Guidelines build on the earlier version that was issued in 2000 and emphasises the role prosecutors' play in protecting victims' interests.

The issue in Attorney General's Ref No. 31 was a disputed basis of plea. The defendant had pleaded guilty to section 5 rape of a child under 13. The facts were that D had met the 12 year old complainant in a cable TV chat room. She had described herself as being 24 years of age. The two had met and there was consensual sexual touching and vaginal intercourse. There had been oral sex but only after the complainant had been persuaded to do so by the defendant. The defendant pleaded guilty on the basis that the complainant had consented and he had believed her age to be 18 years. This basis had previously been rejected by the prosecutor. Counsel opened the facts accordingly to the prosecution case, however, the judge was not reminded of the guidelines and in particular, the need for the defendant to give evidence and be cross-examined on his belief regarding the complainants' age. Instead, the judge made findings of fact without hearing any evidence and sentenced accordingly.

The Court of Appeal disapproved of this approach and commended the Attorney General's Guidelines. These set out four general principles for prosecutors to remember:

• The need to read across the Code for Crown Prosecutors;
• The need to engage with victims when considering accepting a plea at court;
• The responsibilities of the prosecutor in the sentencing process;
• The duty of prosecutors to apply to the court for appropriate ancillary orders.

The basis of plea and the conduct of Newton hearings are dealt with in these guidelines at section C and state:

• Prosecutors must be careful not to agree a plea on a misleading or untrue set of facts;
• That prosecutors should consider recording the basis of a plea in an agreed document which should then be lodged with the court;
• That such a document should not contain personal mitigation;
• Prosecutors should not concede the point where a defendant puts forward assertions of fact which are outside the scope of the prosecutor's knowledge: a typical example is the offenders' state of mind; and
• Instead, prosecutors should invite sentencers not to accept such mitigation without hearing from the offender on oath and to test the offenders account in cross-examination.
• Section 25 Criminal Justice and Public Order Act 1994 (a person who is charged with or convicted of certain offences who has a previous conviction for any such offence shall be granted bail only if the court, or as a the case may be, the constable considering the grant of bail is satisfied that there are exceptional circumstances that justify it.

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Assault of a child under 13 by penetration (Section 6)

• Section 6 makes it an offence for a person intentionally to penetrate sexually the vagina, or anus of a child under 13 with a part of his body, or with anything else.
• A defendant indicted for assault of a child under 13 by penetration may, on appropriate facts, be acquitted of the offence charged and convicted in the alternative of the lesser offence of sexual assault.

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Sexual assault of a child under 13 (Section 7)

• Section 7 makes it an offence for a person to touch sexually a child under 13.

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Causing or inciting a child under 13 to engage in sexual activity (Section 8)

• Section 8 makes it an offence for a person intentionally to cause or incite a child (B) under the age of 13 to engage in sexual activity.

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Key points

• There is no defence of mistaken reasonable belief in age of the complainant.
• It is a defence against aiding, abetting or counselling an offence (except section 8) if the purpose is to:
1. Protect the child from sexually transmitted infection
2. Protect the physical safety of the child
3. Protect the child from becoming pregnant
4. Promote the child's emotional well-being by the giving of advice unless the purpose is to obtain sexual gratification or to cause or encourage the relevant sexual act (section 73).
• Section 8 covers the wide range of activity as in section 4, but also covers the situation where a person incites (encourages) the child to take part in the sexual activity, even if the activity itself does not take place.

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Penalties

Sections 5 and 6 are indictable only and carry a maximum sentence of life imprisonment.

Section 7 is triable either way and carries a maximum sentence of 14 years on indictment.

Section 8 is indictable only and carries a maximum sentence of life imprisonment if the activity involves:

1. Penetration of B's anus or vagina;
2. Penetration of B's mouth with a person's penis;
3. Penetration of a person's anus or vagina by B; or
4. Penetration of a person's mouth with B's penis.

Section 8 creates two separate offences because the maximum sentence differs depending on proving penetrative or non-penetrative activity R v Courtie [1984] AC 463.

In drafting charges and indictments, you should specify whether the sexual activity is either penetrative or non-penetrative sexual activity.

Non-penetrative activity is either way and carries a maximum sentence of 14 years on indictment.

In determining the level of sentence, the same degree of seriousness should apply whether a person 'causes' or 'incites' the activity.

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Current cases on sentencing

R v D [2006] EWCA 111: A three-year sentence was substituted for a sentence of four years and three months' detention for five counts of rape of a child under the age of 13. The original sentence was manifestly excessive in light of the proximity in ages between the offender and the complainant and the offender's plea of guilty. D had had sexual intercourse with his younger sister (X) on a number of occasions. At the time of the offences D had been 13 years old and X had been aged between 11and 12 years old. X had apparently consented to sexual intercourse but she suffered from educational difficulties. At trial D maintained that the sexual intercourse was consensual, that he had not ejaculated inside of X and that he did not understand that it was wrong to have sexual intercourse with X. A pre-sentence report recommended a custodial sentence and stated that D had little empathy with X. D contended that the sentence imposed was manifestly excessive in the light of the consensual nature of the sexual intercourse, the fact that he had acted out of curiosity, the closeness in ages between the parties, and his guilty pleas.

The Court of Appeal held that in the light of D's guilty plea, the proximity in ages between the parties and the other mitigating factors in the case, the sentence imposed was manifestly excessive and the appropriate sentence, of sufficient length to enable D to receive proper secure treatment, was one of three years' detention.

R V Corran: R V Cutler: R V Heard : R V Williams [2005] EWCA Crim 192 sets out the current guidelines:

Section 5

• The appropriate sentence for fell within a wide bracket.
• There would be few cases where an immediate custodial sentence was not called for, whatever the age of the defendant.
• The age of a defendant in itself and compared to that of the victim was relevant. If the defendant was much older than the victim a substantial term was required.
• In exceptional cases a non-custodial sentence was appropriate.
• The nature of the relationship of those involved was important as were their character and maturity.
• All the circumstances including a defendant's remorse, use of contraception and the consequences for the victim should be considered.
• Where a victim had claimed to be 16 years old the relevance of that fact would depend on all the circumstances.
• Offences under s.5 generally should attract heavier sentences than those under ss.9 and 10 and the sentence should be shorter where the victim was under 16 rather than under 13.

Sections 6, 7 and 8

• Under ss.6, 7 and 8 the age of the defendant and the sex of the victim were irrelevant.
• The nature of the assault and the period for which it lasted should be considered as should the factors be relevant to s.5 offences, appropriately adjusted.
• Offences under s.7 were less serious than those under ss.8, 9 or 10.

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Notification requirements

For offences within sections 5, 6 and 8 a person must comply with the requirements if they come within section 80 of the 2003 Act (paragraphs 19 and 21 of Schedule 3 of the 2003 Act).

Whether a person has to comply with the requirements, in relation to an offence in section 7, will depend on the age of the victim and/or the sentence imposed (see paragraph 20 of Schedule 3 of the 2003 Act).

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Code for Crown Prosecutors – considerations

The 2003 Act protects all children from engaging in sexual activity at an early age, irrespective of whether or not a person under 13 may have the necessary understanding of sexual matters to give ostensible consent. The intention behind sections 5-8 is to provide maximum protection to very young children.

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Code for Crown Prosecutors - Adult defendant

A prosecution will usually take place unless there are public interest factors tending against prosecution which clearly outweigh those tending in favour. Given the seriousness of these offences, where the defendant is an adult, notwithstanding the wide nature of the activity in sections 5-8, a prosecution will normally be required.

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Code for Crown Prosecutors - Child defendant (under 18)

However, prosecutors may exercise more discretion where the defendant is a child. The overriding public concern is to protect children. It was not Parliament's intention to punish children unnecessarily or for the criminal law to intervene where it is wholly inappropriate. During the passage of the bill, Lord Falconer said:

"Our overriding concern is to protect children, not to punish them unnecessarily. Where sexual relationships between minors are not abusive, prosecuting either or both children is highly unlikely to be in the public interest. Nor would it be in the best interests of the child..."

There are two important points to note:

1. The DPP guidelines issued under the Criminal Justice Act 2003 (charging scheme) state that only Crown Prosecutors should decide whether a person under 18 be charged with a sexual offence under the Sexual Offences Act 2003.
2. Youth Offender Specialists should review all files involving youth offenders and take all major decisions in relation to those cases, in particular, whether or not a prosecution should take place.

It is important to note that the 2003 Act does not change the principles or the decision making process in deciding whether or not to prosecute youths for sexual offences. In any case where there is sufficient evidence of a sexual offence committed by a child to justify instituting proceedings, the public interest must be considered with care before any prosecution is commenced.

It is essential that before any decision is made on whether or not to prosecute, prosecutors have as much information as possible from sources, such as the police, Youth Offending Teams (YOTs), and any professionals assisting those agencies about the defendant's home circumstances and the circumstances surrounding the alleged offence, as well as any information known about the victim. Failure to do so may lead to judicial review of any decision R v Chief Constable of Kent ex parte L and R v DPP ex parte B [1991] 93 Cr App R 416.

It may also be important to obtain the views of the victim and where appropriate the views of the victim's family in the decision.

On the general principles of prosecuting children, prosecutors should also refer to the section on Youth offenders elsewhere in the legal guidance.

Prosecutors may be challenged on their decisions to prosecute youths for sexual activity with a child who is a similar in age to the offender. In R (on the application of S) v Director of Public Prosecutions, QBD (Admin) 28/06/2006. S, aged 15, had engaged in sexual activity with the victim (V), a 12-year-old girl. It was accepted that S had known that the girl's age. He was subsequently charged with rape of a child under 13, contrary to section 5 of the Act. The Crown Prosecutor rejected S's contention that it was neither in the public interest nor the interest of S to pursue a prosecution under s.5 of the Act. Applying the Code for Crown Prosecutors, the public interest in proceeding had been satisfied as V was much younger than S and S had been aware of this at the relevant time. S applied for judicial review of that decision. The prosecutor subsequently proposed to delete the charge under s.5 of the Act and to replace it with a charge under s.13 of the Act. S challenged that new decision. S contended that the prosecutor had acted unreasonably or had failed to take account of relevant information. 'Relevant information' included two additional codes to the main Code for Crown Prosecutors (i.e. the CPS Policy of Prosecuting of Rape and the Legal Guidance on SOA 2003) that provided observations on charging practice in relation to the Act and youth offenders. It was further contended that in the light of expert evidence that S's development was atypical and immature for a 15-year-old boy, developmental parity between S and V was not great and therefore, the circumstances of the offence could not be described as exploitative. When taken together, the facts of the case lead to the conclusion that it was not appropriate to prosecute S for any offence.

The Court held that in the instant case there was no basis for concluding that the prosecutor had failed to have regard to other guidance concerning application of the Act and youth offenders. Moreover, where the prosecution asserted that S had been well aware that V was much younger than him, it was not possible to conclude that no reasonable prosecutor would decide that a prosecution was in the public interest. S's challenge failed.

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Factors: whether or not to prosecute young defendants

In deciding whether or not to prosecute, prosecutors should have careful regard to the factors below. The weight to be attached to a particular factor will vary depending on the circumstances of each case. The factors are:

• The age and understanding of the offender. This may include whether the offender has been subjected to any exploitation, coercion, threat, deception, grooming or manipulation by another which has lead him or her to commit the offence;
• The relevant ages of the parties, i.e. the same or no significant disparity in age;
• Whether the complainant entered into sexual activity willingly, i.e. did the complainant understand the nature of his or her actions and that (s)he was able to communicate his or her willingness freely;
• Parity between the parties in regard to sexual, physical, emotional and educational development;
• The relationship between the parties, its nature and duration and whether this represents a genuine transitory phase of adolescent development;
• Whether there is any element of exploitation, coercion, threat, deception, grooming or manipulation in the relationship;
• The nature of the activity e.g. penetrative or non-penetrative activity;
• What is in the best interests and welfare of the complainant; and
• What is in the best interests and welfare of the defendant.

In R v G and the Secretary State for the Home Department (above), G was a 15 year old boy who had been charged with section 5 rape of a girl aged 12 years. The defence argued that a charge under section 5 amounted to a disproportionate interference with the defendant's right to privacy under A8. On the facts of the case, they argued, section 5 was a disproportionate response to any legitimate aim that the government was pursuing, and that a charge under Section 9 'SOA 2003' (sexual activity with a child) or Section 13 'SOA 203' (sex offences on a child that are committed by a child or young person) would have been correct.

The Court held Article 8.1 may be infringed if a child is prosecuted for an offence under Section 5 and such interference may not be justified under A8.2. Any infringement will turn on the individual facts of each case and in this matter, the initial Section 5 charge was correct and there was no duty on the judge to substitute a Section 13 charge.

However, in many cases the issue of consent will not be resolved until after a Newton hearing has been held. If the facts are found to be not as serious as initially presented to the court, the judge can pass an appropriate sentence. This will ensure that there is no illegal interference with a defendant's Article 8 rights.

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Offences against children under 16 (sections 9 - 13)

The 2003 Act provides that the age of consent is 16. Sections 9-13 clarify that any sexual activity involving consenting children under 16 is unlawful.

Sections 9-12 cover adult defendants.

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Sexual activity with a child (Section 9)

The elements of the offence are:

1. (A) aged 18 or over intentionally touches (B)
2. the touching is sexual, and
3. either (B) is under 16 and (A) does not reasonably believe that (B) is 16 or over, or
4. (B) is under 13.

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Causing or inciting a child to engage in sexual activity (Section 10)

The elements of the offence are:

1. (A) aged 18 or over intentionally causes or incites another person (B) to engage in an activity
2. the activity is sexual, and
3. either (B) is under 16 and (A) does not reasonably believe that B is 16 or over, or
4. (B) is under 13.

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Engaging in sexual activity in the presence of a child (Section 11)

The elements of the offence are:

• aged 18 or over intentionally engages in sexual activity
• (A's) purpose is to obtain sexual gratification when (B) is present or can observe
• (A) knows or believes that (B) is aware of the activity or intends that (B) should be aware
• Either (B) is under 16 and (A) does not reasonably believe that (B) is 16 or over, or
• (B) is under 13.

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Causing a child to watch a sexual act (Section 12)

The elements of the offence are:

• (A), aged 18 or over, intentionally causes a child under 16 (B) to watch another person engaging in an activity, or to look at an image of any person engaging in an activity
• (A's) purpose is to obtain sexual gratification
• the activity is sexual, and
• either (B) is under 16 and (A) does not reasonably believe that (B) is 16 or over, or
• (B) is under 13.

In R v Abdullahi (Osmund) Mohammed CA (Crim Div) [2006] EWCA Crim 2060, the Court of Appeal considered the meaning of 'sexual gratification'.

The appellant (X) appealed against his conviction of causing a child to watch sexual acts and sexual activity with a child contrary to the Sexual Offences Act 2003 s. 12 and s. 9 respectively. It was the prosecution's case that a 13- year-old boy (P), who had been at X's home visiting his X's younger brother, had been plied with alcohol, exposed to pornographic material and then subjected to indecent touching by X. The judge directed the jury that they would have to be satisfied that X did what he did when intentionally causing P to look at the images for the purpose of obtaining sexual gratification, either by enjoying watching P looking at the images or with a view to looking at P in the mood to provide sexual gratification to himself later. X submitted that the direction given by the judge was too wide as it went beyond reference to immediate sexual gratification and incorporated an element of future gratification.

The appeal was dismissed. There was nothing in the language of s. 12 of the Act to suggest that sexual gratification must be taken immediately, or that it cannot extend to a longer term plan to obtain further or greater sexual gratification in the form of the eventual working out of a particular sexual fantasy or activity involving the child.

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Child sex offences committed by children or young persons (Section 13)

It is an offence if a person under 18 commits an offence if (s)he does anything which would be an offence under sections 9 -12.

The penalty is reduced to:

Summary conviction – imprisonment not exceeding 6 months if a fine not exceeding the statutory maximum;

On indictment – imprisonment for a term not exceeding 5 years.

This section comes within section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 (Offenders under 18 convicted of certain serious offences: power to detain for specified period). Whether section 91 applies will depend on the nature of the sexual activity and if there are any aggravating features present, such as penetration in the presence of other children.

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Key points

• Consent is irrelevant.
• There is a defence of reasonable belief that the child is 16 or over. This does not apply where the child is under 13.
• No defence for lawfully married couples (foreign nationals) where one party is under 16.
• There is a defence for aiding and abetting or counselling the commission of an offence under section 9 only where the conditions of section 73 apply (see above).
• Under section 11, there is no requirement that (B) is actually aware of the activity, although there is a requirement that (B) is present or can observe. Observation can be via a web-cam. Observation includes an image (section 79)

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Penalties

The offences in sections 9 and 10 are indictable only with a maximum sentence of 14 years where penetration occurs within subsection (2) of those sections. In all other cases the offence is either way with a maximum sentence of 14 years on indictment.

Sections 9 and 10 create two separate offences because the maximum sentence differs depending on proving penetrative or non-penetrative activity R v Courtie [1984] AC 463. In drafting charges and indictments, you should specify whether the sexual activity is either penetrative or non-penetrative sexual activity.

The offences in sections 11 and 12 are either way and carry a maximum sentence of 10 years on indictment.

The factors in assessing the seriousness of the offences in sections 9-12 will be:

• the nature of the sexual activity;
• the age and degree of vulnerability of the victim;
• the age gap between the child and the offender;
• any breach of trust in the relationship of the parties; and
• any aggravating features, such as, covert use of drugs, use of force, exploitation etc.

In relation to this set of offences, R V CORRAN: R V CUTLER: R V HEARD : R V WILLIAMS [2005] EWCA Crim 192 provides that:

• The factors applicable to determining sentence under section 5 (see above) are also applicable to offences under ss.9 and 10 save that where the defendant had a reasonable belief that a victim was 16, that belief operated as a defence and not just mitigation.
• Sentences under ss.11 and 12 would usually be less than those under ss.5-10. However, the age and character of the child and the defendant were relevant as were the nature of the act, the number of incidents, the impact on the child, remorse and future risk.

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Notification requirements

For offences in sections 9-12 a person has to comply with the requirements if (s)he comes within section 80 of the 2003 Act. Where the offender is under 18, notification is only required where the sentence threshold is met (paragraph 22 of Schedule 3 of the 2003 Act).

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Charging practice

Offences under sections 9 and 10 may also be offences under the non-consensual offences. Where this situation arises and it is clear that there is lack of consent, it would be appropriate to charge a non-consensual offence.

If, however, there are difficulties in proving the non-consensual offences, then an offence under section 9 may be appropriate (where the elements can be proved).

Depending on the facts of the case, it may be appropriate to charge section 9 as an alternative offence to a non-consensual offence under sections 1-4.

Offences under sections 25 and 26 (familial child sex offences) may also come within sections 9 and 10. Where there is clear evidence of the family relationship, prosecutors should charge the familial child sex offence (see below).

Sections 9 and 10 apply where a child is under 13, which means that the activity may also be an offence under sections 5-8 (rape of a child under 13, assault of a child under 13 by penetration, sexual assault of a child under 13, and causing of inciting a child under 13 to engage in sexual activity). The reason for this is to cover the situation where the prosecution have difficulty in proving the age of the victim, so that there is no need to amend the charge or prefer an alternative charge. Therefore, if it can be proved that the child is under 13 then prosecutors should charge an offence, if appropriate, under sections 5-8. If there is difficulty in proving the age of the victim is under 13, then a child sex offence should be charged. This approach is consistent with the intention of Parliament.

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Code for Crown Prosecutors - adult/child defendants

Guidance set out above in relation to sections 5-8 also applies to the child sex offences. The factors that prosecutors should consider are repeated below. The weight to be attached to a particular factor will vary depending on the circumstances of each case. However, in deciding whether it is in the public interest to prosecute a person, prosecutors may exercise more discretion in relation to child sex offences (where the victim is a child aged 13-15) than for offences against children under 13.

Prosecutors should have regard to the following factors:

• The age and understanding of the offender. This may include whether the offender has been subjected to any exploitation, coercion, threat, deception, grooming or manipulation by another which has lead him or her to commit the offence;
• The relevant ages of the parties, i.e. the same or no significant disparity in age;
• Whether the complainant entered into sexual activity willingly, i.e. did the complainant understand the nature of his or her actions and that (s)he was able to communicate his or her willingness freely;
• Parity between the parties in regard to sexual, physical, emotional and educational development;
• The relationship between the parties, its nature and duration and whether this represents a genuine transitory phase of adolescent development;
• Whether there is any element of exploitation, coercion, threat, deception, grooming or manipulation in the relationship;
• The nature of the activity e.g. penetrative or non-penetrative activity;
• What is in the best interests and welfare of the complainant; and
• What is in the best interests and welfare of the defendant.

In summary, where a defendant, for example, is exploitative, or coercive, or much older than the victim, the balance may be in favour of prosecution, whereas if the sexual activity is truly of the victim's own free will the balance may not be in the public interest to prosecute.

In addition, it is not in the public interest to prosecute children who are of the same or similar age and understanding that engage in sexual activity, where the activity is truly consensual for both parties and there are no aggravating features, such as coercion or corruption. In such cases, protection will normally be best achieved by providing education for the children and young people and providing them and their families with access to advisory and counselling services. This is the intention of Parliament.

In R (ON THE APPLICATION OF S) V DIRECTOR OF PUBLIC PROSECUTIONS, QBD (Admin) 28/6/2006, aged 15, had engaged in sexual activity with the victim (V), a 12-year-old girl. It was accepted that S had known that the girl's age.

He was subsequently charged with rape of a child under 13, contrary to section 5 of the Act.

The Crown prosecutor rejected S's contention that it was neither in the public interest nor the interest of S to pursue a prosecution under s.5 of the Act. Applying the Code for Crown Prosecutors, the public interest in proceeding had been was satisfied as V was much younger that S and S had been aware of this at the relevant time.

S applied for judicial review of that decision. The prosecutor subsequently proposed to delete the charge under s.5 of the Act and to replace it with a charge under s.13 of the Act. S challenged that new decision. S contended that the prosecutor had acted unreasonably or had failed to take account of relevant information. 'Relevant information' included two additional codes to the main Code for Crown Prosecutors that provided observations on charging practice in relation to the Act and youth offenders (i.e CPS Legal Guidance, available on our website). It was further contended that in the light of expert evidence that S's development was atypical and immature for a 15-year-old boy, the developmental parity between S and V was not great and therefore, the circumstances of the offence could not be described as exploitative. When taken together, the facts of the case led to the conclusion that it was not appropriate to prosecute S for any offence.

The Court held: In the instant case there was no basis for concluding that the prosecutor had failed to have regard to other guidance concerning application of the Act and youth offender. Moreover, where the prosecution asserted that S had been well aware that V was much younger than him, it was not possible to conclude that no reasonable prosecutor would decide that a prosecution was in the public interest. S's challenge failed.

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Other related offences against children (under 16)

Arranging and facilitating a child sex offence (Section 14)

The purpose of this offence is to prevent people from making it possible for a child under 16 to be sexually abused.

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Key points

• A person must intentionally arrange or facilitate for himself or another something that he intends or believes would happen that would result in a commission of a child sex offence in any part of the world (sections 9-13).
• There is a defence if the person arranges or facilitates something that although he believes might happen, he does not intend it to happen, and he acts for the protection of the child i.e. from sexually transmitted infection; physical safety; from becoming pregnant; or promoting the child's well-being by giving advice. For example, where a person provides a condom to a girl under 16 in order to protect her from sexually transmitted infections/pregnancy in circumstances where she