R v G: charging policy and respect for private life

The other reader request comes from an equally esteemed legal chap whose legal interests closely match those of Head of Legal and who finds early mornings equally or perhaps even more challenging. He asks what I think of the Lords’ judgment last week in R v G.

The facts are these. G was prosecuted for statutory rape of a girl under 13, under section 5 of the Sexual Offences Act 2003. It’s an offence of strict liability: you’re guilty if you have penetrative sex with anyone under 13, however old you thought they were, and whether or not they seemed to consent; and the maximum sentence is life. G admitted having sex, when he was 15, with a 12 year old; but he said she consented (not legally, obviously, but, if you like “practically”) and told him she was 15. He pleaded guilty, and was sentenced to a year’s detention, which was reduced on appeal. But the question that went to the Lords was whether charging him under section 5 at all was a breach of his article 8 Convention right to respect for his private life.

The argument ran in essence like this. The decision to prosecute engaged article 8 as it interfered with a sexual relationships which was on G’s version practically, if not legally, consensual. And it was disproportionate to charge him under section 5, as he could and should have been charged, on the facts admitted, with the less serious offence under section 9(1)(c)(ii), read with section 13, of sexual activity with a child, which for offenders under 18 carries a maximum sentence of only five years. Ergo, the prosecution and conviction breach his Convention rights. I think this argument raises two interesting questions: first, whether prosecuting this type of offence can ever be said to engage article 8; and secondly, how proportionality works.

Lord Hoffman took a very robust view of this appeal. At paragraph 7 of his speech he says

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

and at paragraph 10 he makes this bold statement:

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

Now, first, I have to say that I admire Lord Hoffman’s style, and am glad that someone else is as sceptical as I am of what he calls a regrettable tendency, and what I call human rightsism. But as he reads this post (as no doubt he and all their Lordships do, avidly, to see how their speeches have gone down) he’s going to be disappointed. I think he goes too far, here.

The mere fact that a statute creating an offence can be prosecuted without breaching Convention rights – that there are circumstances in which a conviction would be compatible with those rights – means that the legislation itself, the offence, is human rights-compatible. But it does not follow that each and every investigation, prosecution and conviction are compatible – any more than, say, the fact that surveillance powers may be compatible means each and every use or abuse of them complies with Convention rights. So I can’t, unfortunately, go along with Lord Hoffman on this one.

Lords Hope and Carswell take the opposite view to him, and decide that the prosecution was disproportionate; but I think it’s Lady Hale who gets this one right. She thinks article 8 is not engaged on the facts but decides not to dwell on this question – perhaps rightly, because I’m not sure it actually matters a great deal – but decides that the prosecution was in any event was justified and proportionate in the circumstances. She helpfully sets out the full facts, which are that the girl initially told police she did not consent in any sense, but objected to having sex with G. It was later, when she admitted she might have told G she was 15 and was reluctant to give evidence, that the CPS accepted G’s plea on the basis of the facts he admitted. Against that background, it seems to me difficult to criticise the CPS’s decision to go for the more serious offence. Lady Hale also sets the human rights issue in context: the girl has article 8 rights, too, which the law, the police, the CPS and the courts must all respect. Providing her with inadequate protection by punishing G unduly leniently would also risk breaching Convention rights. She agrees with Lord Hoffman on the result, of course, dismissing the appeal; and Lord Mance agrees with her.

The point on the article 8 issue seems to me to be that article 8 is not engaged by these facts: having sex with a 12-year-old girl is not the kind of sex (if you can call it that) which is protected by article 8. That’s not the same as saying that every kind of sex is taken out of article 8 simply by being criminalised, which is what Lord Hoffman’s approach would amount to.

I’m also interested in the implications of the case for proportionality, though, implications that many may find obvious, but that I think are often overlooked. It’s often suggested that the state must interfere with Convention rights in the least invasive way, so that if a small hammer is available to it it ought really to pick that up, rather than using any large or even sledge hammer. But it just does not follow that the mere fact that a less invasive interference is available makes choice of a more invasive one disproportionate. So here, even if article 8 does apply, the mere availability of a lesser charge does not make it necessarily disproportionate to charge under section 5.