Information Note on the Court’s case-law No. 144
August-September 2011
G. v. the United Kingdom (dec.) - 37334/08
Decision 30.8.2011 [Section IV]
Article 6
Article 6-2
Presumption of innocence
Lack of defence of consent or reasonable belief as to complainant’s age on charge of rape of a child: inadmissible
Facts – By virtue of section 5 of the Sexual Offences Act 2003 a person who has sexual intercourse with a child under thirteen is guilty of rape, whether or not the child willingly took part in the sexual activity and whether or not the defendant reasonably believed that the child was thirteen or over. The applicant, then aged fifteen, was charged with an offence under that provision after having intercourse with a twelve year-old girl. Although he alleged that the intercourse was consensual and that the girl had told him she was the same age as him, he was advised by his lawyers that he had no defence to the charge and so pleaded guilty on the basis that the girl had willingly agreed to intercourse and had told him she was fifteen. His plea was accepted on that basis. He was convicted and initially given a twelve-month detention and training order which was reduced to a conditional discharge on appeal.
In his application to the European Court, the applicant complained under Article 6 §§ 1 and 2 of the Convention that his conviction under section 5 of the 2003 Act was not compatible with the presumption of innocence, and under Article 8 that the criminal proceedings amounted to a disproportionate interference with his right to respect for his private life.
Law – Articles 6 §§ 1 and 2: In principle the Contracting States remained free to apply the criminal law to any act which was 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. It was not the Court’s role under Article 6 §§ 1 or 2 to dictate the content of domestic criminal law, including whether or not a blameworthy state of mind should be one of the elements of the offence or whether there should be any particular defence available to the accused. The offence under section 5 of the 2003 Act had been created in order to protect children from sexual abuse. The objective element (actus reus) of the offence was penile penetration of a child aged twelve or under and the subjective element (mens rea) an intention to penetrate. The prosecution had been required to prove these elements beyond reasonable doubt. Knowledge of, or recklessness as to, the age of the child or as to the child’s unwillingness to take part in the sexual activity were not elements of the offence and the Court did not consider that the Parliament’s decision not to make available a defence based on reasonable belief that the complainant was aged thirteen or over could give rise to any issue under Article 6 §§ 1 or 2. Section 5 of the 2003 Act did not provide for presumptions of fact or law to be drawn from elements proved by the prosecution. The principle established in Salabiaku v. France* requiring such presumptions to remain within reasonable limits therefore had no application to the applicant’s case.
Conclusion: inadmissible (incompatible ratione materiae).
Article 8: Noting that the applicant, who was aged fifteen at the time of the offence, was convicted and sentenced on the basis that both parties had consented to sexual intercourse and that the applicant had reasonably believed the complainant to be the same age as him, the Court was prepared to accept that the sexual activities at issue fell within the meaning of “private life”. The criminal proceedings against him had constituted an interference that was “in accordance with the law” and pursued the legitimate aims of the prevention of crime and the protection of the rights and freedoms of others.
As to whether the continued prosecution, conviction and sentencing of the applicant had been “necessary in a democratic society”, the State authorities enjoyed a wide margin of appreciation in cases concerning the protection of children against premature sexual activity, exploitation and abuse. The consequences of penetrative sex for a child of twelve or under could be very harmful. The Court did not consider that the national authorities had exceeded their margin of appreciation either by creating a criminal offence called “rape” which did not allow for any defence based on apparent consent by the child or on the accused’s mistaken belief about the child’s age, or by deciding to prosecute the applicant for that offence, particularly since the legislation permitted for a broad range of sentences and the mitigating circumstances in the applicant’s case had been taken into account on appeal.
Conclusion: inadmissible (manifestly ill-founded).
* Salabiaku v. France, no. 10519/83, 7 October 1988.
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This summary by the Registry does not bind the Court.
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