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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> McNally v R. [2013] EWCA Crim 1051 (27 June 2013) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2013/1051.html Cite as: [2014] 2 WLR 200, [2013] EWCA Crim 1051, [2014] 1 QB 593, [2013] WLR(D) 256, [2013] 2 Cr App R 28, [2014] QB 593 |
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ON APPEAL FROM THE CROWN COURT AT WOOD GREEN
His Honour Judge Patrick
T20127553
Strand, London, WC2A 2LL |
||
B e f o r
e :
MR JUSTICE KENNETH PARKER
and
MR JUSTICE STEWART
____________________
JUSTINE ![]() | Appellant |
|
- and - |
||
THE QUEEN |
![]() |
____________________
John McGuinness Q.C. (instructed by CPS) for the Respondent
Hearing date : 11 June 2013
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
Lord Justice Leveson :
"(1) A person (A) commits an offence if –
(a) he intentionally penetrates thevagina
… of another person (B) with a part of his body or anything else,
(b) the penetration is sexual,
(c) (B) does not consent to the penetration, and
(d) (A) does notreasonably
believe that (B) consents.
(2) Whether a belief isreasonable
is to be determined having
regard
to all the circumstances, including any steps A has taken to ascertain whether B consents."
"For the purposes of this Part, a person consents if he agrees by choice and has the freedom and capacity to make that choice."
"Where one party to sexual activity has a sexually transmissible disease which is not disclosed to the other party any consent that may have been given to that activity by the other party is not therebyvitiated.
The act
remains
a consensual act. However, the party suffering from the sexual transmissible disease will not have any defence to any charge which may
result
from harm created by that sexual activity, merely by
virtue
of that consent, because such consent did not include consent to infection by the disease."
"As has been indicated in an article by Professor Tempkin and Professor Ashworth, in the 2004 Criminal LawReview,
page 328, the Sexual Offences Act 2003 does not expressly concern itself with the full
range
of deceptions other than those identified in section 76 of the Act, let alone implied deceptions. It notes that this leaves, as a matter of some uncertainty, the question of, for example, as it is put: "What if D deceives C into thinking that he is not HIV positive when he is?" There is no suggestion in that article that whatever may be the answer to that question, an implied deception can be spelt out of the mere fact that a person does not disclose his HIV status, or his or her infection by some other sexually transmissible disease, that such a deception should
vitiate
consent.
"88. It appears to have been contended by Mr Assange, that if, in accordance with the conclusion we havereached,
the deception was not a deception within s.76 (a deception as to the nature or quality of the act or a case of impersonation), then the deception could not be taken into account for the purposes of s.74. It would, in our
view,
have been extraordinary if Parliament had legislated in terms that, if conduct that was not deceptive could be taken into account for the purposes of s.74, conduct that was deceptive could not be. There is nothing in
R
![]()
v
B that suggests that. ...
89. The editors of Smith & Hogan ...regard
it as self evident that deception in
relation
to the use of a condom would "be likely to be held to
remove
any purported free agreement by the complainant under s.74". A
very
similar
view
is expressed in
Rook
and Ward on Sexual Offences; (4th edition) at paragraph 1.216. ...
90. In ourview
s.76 deals simply with a conclusive presumption in the
very
limited circumstances to which it applies. If the conduct of the defendant is not within s.76, that does not preclude
reliance
on s.74.
R
![]()
v
B goes no further than deciding that failure to disclose HIV infection is not of itself
relevant
to consent under s.74.
R
![]()
v
B does not permit Mr Assange to contend that, if he deceived AA as to whether he was using a condom or one that he had not damaged, that was irrelevant to the issue of AA's consent to sexual intercourse as a matter of the law of England and Wales or his belief in her consent. On each of those issues, it is clear that it is the prosecution case she did not consent and he had no or no
reasonable
belief in that consent. Those are issues to which s.74 and not s.76 is
relevant;
there is nothing in
R
![]()
v
B which compels any other conclusion. Furthermore it does not matter whether the sexual contact is described as molestation, assault or, since it involved penile penetration,
rape.
The dual criminality issue is the absence of consent and the absence of a
reasonable
belief in consent. Those issues are the same
regardless
of the description of the conduct."
" ... Given that essential background, the evidence about the incident in February 2010 isreasonably
open to this analysis. Consensual penetration occurred. The claimant consented on the clear understanding that the intervener would not ejaculate within her
vagina.
She believed that he intended and agreed to withdraw before ejaculation. The intervener knew and understood that this was the only basis on which she was prepared to have sexual intercourse with him. There is evidence from the history of the
relationship,
as well as what he said when sexual intercourse was taking place, and his observations to the claimant afterwards, that although he never disclosed his intention to her (because if she had known he knew that she would have never have consented), either from the outset of penetration, or after penetration had begun, he intended that this occasion of sexual intercourse would culminate in ejaculation within her
vagina,
whatever her wishes and their understanding. In short, there is evidence that he deliberately ignored the basis of her consent to penetration as a manifestation of his control over her.
26. In law, the question which arises is whether this factual structure can giverise
to a conviction for
rape.
Did the claimant consent to this penetration? She did so, provided, in the language of s.74 of the 2003 Act, she agreed by choice, when she had the freedom and capacity to make the choice. What Assange underlines is that "choice" is crucial to the issue of "consent", and indeed we underline that the statutory definition of consent provided in s.74 applies equally to s.1(1)(c) as it does to s.1(1)(b). The evidence
relating
to "choice" and the "freedom" to make any particular choice must be approached in a broad commonsense way. If before penetration began the intervener had made up his mind that he would penetrate and ejaculate within the claimant's
vagina,
or even, because "penetration is a continuing act from entry to withdrawal" (see s.79(2) of the 2003 Act) he decided that he would not withdraw at all, just because he deemed the claimant subservient to his control, she was deprived of choice
relating
to the crucial feature on which her original consent to sexual intercourse was based. Accordingly her consent was negated. Contrary to her wishes, and knowing that she would not have consented, and did not consent to penetration or the continuation of penetration if she had any inkling of his intention, he deliberately ejaculated within her
vagina.
In law, this combination of circumstances falls within the statutory definition of
rape."
![]()
"7. If, which is denied, [M] did not consent to the acts complained of, the [appellant] will contend that shereasonably
believed [M] consented to all such acts as took place and in the knowledge that the [appellant] was a female. "
"12. I presumed M knew that I was a girl and consented to sexual activity which took place although I specifically deny I ever used a dildo on her. I admit I had a dildo which she saw but I did not use it on her."
"Inview
of her
replies
I was satisfied in my own mind she (and her parents) knew what all the constituent elements of the offence were and that these were made out. I did not say what is set out in para. 14 of the
recent
advice ['because she did not tell the complainant she was a girl ... she had no defence and should plead guilty'] – that is not my understanding of the law. Indeed, I had specifically
referred
to the issue of Miss
McNally's
'
reasonable
belief' in paragraph 7 of the draft defence statement."
"17. At that conference, attended also by both my parents, I stated that I wished to plead guilty to all matters save and except the offence involving the use of the dildo (count 1).
18. I accept that [M] did not consent to the sexual activity between us because she did notrealise
I was a girl and not a boy. I accept that she only consented because she thought she was having a
relationship
with Scott Hill, a boy. She would only agree to sexual activities with a boy.
19. I admit I went to London on 4 occasions as a boy as I told the headmaster... . I stayed with [M] or her family and admit the sexual activities complained of took place with the specific exception of the use of the dildo.
20. I intend to plead guilty to counts 2, 3, 4, 5, 6 and 7 but not guilty to count 1.
21. If the CPS will not accept my not guilty plea on count 1, I will discuss the overall position with [Mr Thomas]."
"MissMcNally
accepts that she has committed an offence and in order to do so maintained a cycle of deception, secrecy and breach of trust."