"Internet Law Book Reviews" Provided by Rob Jerrard LLB LLM
Too old at 24, Young man's defence not available at 24 years of age
R v Kirk, Regina v Russell
Court of Appeal, Criminal Division (2002) The Times, 26 June
Unlawful sexual intercourse; Sexual Offences Act 1956, s. 6; European Convention on Human Rights, Arts 6 and 14; over 23 years
The statute
Sexual Offences Act 1956, s. 6:
(1) It is an offence, subject to the exceptions mentioned in this section, for a man to have unlawful sexual intercourse with a girl under the age of 16.
(2) Where a marriage is invalid under section two of the Marriage Act 1949 or section one of the Age of Marriage Act 1929 (the wife being a girl under the age of 16), the invalidity does not make the husband guilty of an offence under this section because he has sexual intercourse with her, if he believes her to be his wife and has reasonable cause for the belief.
(3) A man is not guilty of an offence under this section because he has unlawful sexual intercourse with a girl under the age of 16, if he is under the age of 24 and has not previously been charged with a like offence, and he believes her to be of the age of 16 or over and has reasonable cause for the belief.
In this subsection, 'a like offence' means an offence under this section or an attempt to commit one .. .
The facts
The defendants were aged 29 and 25 respectively and faced trial on an indictment charging them with unlawful sexual intercourse with a girl under 16 at the relevant time. It was conceded by the Crown that the complainant could have given the impression she was over 16 years of age.
At a preparatory hearing, the judge ruled against a submission that the defendants could not have a fair trial since the young man's defence, in s. 6(3) of the 1956 Act, was incompatible with articles 6 and 14 of the Convention because it was available only to men under 24, whereas a woman committing the same actus reus, and accordingly charged with indecent assault, would be entitled to avail herself of the defence that she genuinely believed that the complainant was over 16 and, furthermore, a woman would be able to rely upon that defence whatever age she was.
Their Lordships said there were a number of problems with the appellants' arguments. They overlooked the fact that a woman could be charged with unlawful sexual intercourse as an aider and abettor or counsellor and procurer, and that the same statutory defence would be available to a woman if she were under 24. In their Lordships' opinion, it was not unreasonable or disproportionate that once a man had reached the age of 24 the defence was no longer available to him. Even though the choice of age might be arbitrary it did not introduce an element of disproportionality into the offence.
The Decision
If a man over the age of 23 was charged with an offence of unlawful sexual intercourse with a girl under 16, the fact that he could not avail himself of the so-called young man's defence in s. 6(3) of the Sexual Offences Act 1956 did not make the defence discriminatory or disproportionate, nor incompatible with articles 6 and 14 of the European Convention on Human Rights.
The Court of Appeal, Criminal Division, so held in dismissing interlocutory appeals by Craig Kirk and Russell, who were due to stand trial at Coventry Crown Court on charges of unlawful sexual intercourse contrary to s. 6(1) of the 1956 Act, against a ruling of Judge Cole on 20 February 2002 that the defence in s. 6(3) was a carefully considered concession by Parliament for a defendant who was very young, immature or naive and that any discrimination was necessary because the object of the section was to protect young girls.
Accordingly the judge's decision was correct.
Comment
Not previously been charged (on the same occasion)
The Court followed R v Rider [1954] 1 All ER 5, by previous legislation s. 2 of the Criminal Law Amendment Act 1922 stated:
Reasonable cause to believe that a girl was of or above the age of sixteen years shall not be a defence to a charge [of carnal knowledge of a girl under sixteen] under s. 5 . of the Criminal Law Amendment Act, 1885 . . . Provided that in the case of a man of twenty-three years of age or under the presence of reasonable cause to believe that the girl was over the age of sixteen years shall be a valid defence on the first occasion on which he is charged with an offence under this section.
The accused was committed on two separate occasions by justices for trial at assizes on two charges of carnal knowledge of two different girls between the ages of 13 and 16 years, contrary to s. 5. At the trial both charges were included in one indictment.
Held -
- (i)a 'charge' was made within the meaning of the section when the accused was charged before a court which had jurisdiction to determine the matter in question; where justices committed the accused for trial, there was no `charge' until he was tried on indictment; and, therefore, the accused was 'charged' for the first time at the trial.
(ii)Although the accused was committed for trial on separate occasions, both charges were joined in one indictment, and, therefore, the accused was charged on one 'occasion' for the purposes of the proviso to s. 2 of the 1922 Act.
Sentencing
On the question of sentencing in R v Taylor [1977] 3 All ER 527 it was stated that the offence known as having unlawful sexual intercourse with a girl under the age of 16 covers a wide spectrum of guilt, and accordingly the penalties appropriate to the offence will vary in different cases. Where a youth has what starts off as a virtuous friendship and ends with sexual intercourse, it would normally be inappropriate to pass a sentence of a punitive nature. Where a youth seeks out a girl of loose morals and has sexual intercourse with her, a fine would usually be appropriate, but where a man in his twenties or older seeks out such a girl, he may expect a stiffer fine or, if the girl is under 15, a short period of imprisonment. Where the offender deliberately sets out to seduce a girl under the age of 16, the appropriate sentence would be detention in the case of a young man or imprisonment in the case of someone older. A man in a supervisory capacity who abuses his position of trust for sexual gratification merits a sentence of imprisonment somewhere near the maximum term of two years allowed by law.
History
In R v Rider the court outlined the history of the offence. For over 700 years, the law of this country has concerned itself on various occasions with deciding what offences should be committed, if any, when men have sexual intercourse with young girls. As long ago as 1576 it was enacted by Parliament that it was a misdemeanour for a man to have intercourse with a girl under the age of 12. That was the law until 1875 when Parliament raised the age to 13. In 1885 Parliament raised the age to 16. One of the reasons given at the time for raising the age was to make it more difficult for young girls to drift into prostitution. In 1922 Parliament again considered the law relating to sexual intercourse with young girls. Far from relaxing it, it made it more severe because the 1885 Act had made it a defence for any man to say that, on reasonable grounds, he believed the girl to be over 16. That defence, by the 1922 Act, was restricted to young men under the age of 24.
In 1956 Parliament looked at the whole range of sexual offences. It repealed the old statutes and re-enacted them in the Sexual Offences Act 1956. It follows that the law which we are applying is not a law dating back to Victorian times; it is a law which a recent Parliament decided should be enforced. In our judgment, it is the duty of the courts to enforce it. This court said that last year (1976) in R v Rathbone [1976] Crim LR 521; it says the same in this case. Like all laws, this one must be enforced with mercy. As I have already said, the range of guilt is so wide that there is ample room for both mercy and severity. In case it should be thought that, at the present time, the law in England reflects Victorian concepts of morality, it is not without relevance to point out that in most countries of the world the age of consent is 16.
Rob Jerrard