The right not to make mistakes

The House of Lords judgment, R v G [2008] UKHL 37, is  the sort of judgment that makes me appreciate our top court.  The case involved a 15 year-old charged with rape of a 12 year-old. Prosecutors accepted the 15 year-old’s plea on the basis that it could not be established whether or not the 12 year-old consented and where she had admitted to telling G that she was 15. The crime that G was convicted of did not require proof of either non-consent or knowledge (or the absence of mistake) about the other person’s age because the victim was under 13. He initially got a 12 month youth detention order but that was replaced on appeal with a conditional discharge. However, he was still concerned about having the offence of rape on his record. His main argument was that it was unfair for him to be convicted of a charge purely on the basis of the victim being under 13 when he reasonably believed that she was 15.

But it turns out that the UK Human Rights Act gives less protection to people accused of bad conduct than Australia’s common law, at least as far as claims of mistake are concerned. The Lords gave short shrift to the argument that the Convention’s rights to a fair trial (Article 6(1)) and to be presumed innocent (Article 6(2)) include a right to be acquitted absent proof that the conduct wasn’t mistaken. Here’s Lord Hoffman:

Article 6(1) provides that in the determination of his civil rights or any criminal charge, everyone is entitled to a “fair and public hearing” and article 6(2) provides that everyone charged with a criminal offence “shall be presumed innocent until proved guilty according to law”. It is settled law that Article 6(1) guarantees fair procedure and the observance of the principle of the separation of powers but not that either the civil or criminal law will have any particular substantive content: see Matthews v Ministry of Defence [2003] UKHL 4; [2003] 1 AC 1163. Likewise, article 6(2) requires him to be presumed innocent of the offence but does not say anything about what the mental or other elements of the offence should be. In the case of civil law, this was established (after a moment of aberration) by Z v United Kingdom (2002) 34 EHRR 3. There is no reason why the reasoning should not apply equally to the substantive content of the criminal law.

That’s some curious analysis at the end there. A lot of people think that criminal trials should have more protections than civil trials  Indeed, that the presumption of innocence doesn’t even apply in civil trial, which is why it wasn’t protected (or, indeed, mentioned) in Z v United Kingdom (which was just about Article 6(1)). Oy.

There’s no surprise in the ruling that the right to a fair hearing is procedural, not substantive, but what did the House of Lords do about those pesky ECtHR precedents, which is the very reason the case came before them? Lord Hoffman again:

The only authority which is said to cast any doubt upon this proposition is the decision of the Strasbourg court in Salabiaku v France (1988) 13 EHRR 379 and in particular a statement in paragraph 28 (at p.388) that “presumptions of fact or of law” in criminal proceedings should be confined “within reasonable limits”. No one has yet discovered what this paragraph means but your Lordships were referred to a wealth of academic learning which tries to solve the riddle. My Lords, I think that judges and academic writers have picked over the carcass of this unfortunate case so many times in attempts to find some intelligible meat on its bones that the time has come to call a halt. The Strasbourg court, uninhibited by a doctrine of precedent or the need to find a ratio decidendi, seems to have ignored it. It is not mentioned in Z v United Kingdom (2002) 34 EHRR 3.

OK, so we just disregard ECtHR precedents we don’t like. Lord Hoffman’s implication that the ECtHR did that itself in Z v UK again somehow misses the point that the presumption of innocence – the ‘essential issue’ in Salabiaku – wasn’t applicable or mentioned in Z, a case about child protection.

Anyway, the more interesting human right raised by the case of G – a fifteen year-old convicted of the rape of a twelve year-old who (they both say) told G that she was fifteen and who (he says) had consensual sex – is the right to privacy:

13 A person has the right- (a) not to have his or her privacy…  arbitrarily interfered with…

Or maybe not. Here’s Lord Hoffman again:

The other 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.

No, that isn’t the (only) right to privacy being raised by this case. The more pertinent one is the right to have undisturbed sexual intercourse with someone who you reasonably believe to be of legal age (or, more generally, the right to only be punished for the offence you reasonably thought you were committing.) Hoffman’s statement of the right to privacy breaches the sensible approach of the Supreme Court of Canada that requires questions about the ambit of rights to be expressed in a neutral manner. In a case where police placed a video camera (without a warrant) in a hotel room to try to detect illegal gambling, the Court observed:

[I]t would be an error to suppose that the question that must be asked in these circumstances is whether persons who engage in illegal activity behind the locked door of a hotel room have a reasonable expectation of privacy. Rather, the question must be framed in broad and neutral terms so as to become whether in a society such as ours persons who retire to a hotel room and close the door behind them have a reasonable expectation of privacy.

Likewise, in G, the issue was not the right to commit the crime of underage sex, but rather the right to have sex that you reasonably believe to be non-criminal. To think that Hoffman’s undeclared ties to Amnesty International once caused an entire earlier judgment from the House of Lords to be chucked out.

Baroness Hale characterised the offence that G was convicted of in this way:

[T]here is not strict liability in relation to the conduct involved. The perpetrator has to intend to penetrate. Every male has a choice about where he puts his penis. It may be difficult for him to restrain himself when aroused but he has a choice. There is nothing unjust or irrational about a law which says that if he chooses to put his penis inside a child who turns out to be under 13 he has committed an offence (although the state of his mind may again be relevant to sentence)….  The object is to make him take responsibility for what he chooses to do with what is capable of being, not only an instrument of great pleasure, but also a weapon of great danger.

That’s easy for her to say! All the Lords spoke of the need to protect kids, not only from predatory adults, but also from ‘themselves’. But surely the Supreme Court of Canada was spot on when it said, when it rejected a similar offence in Canada:

The respondents contend that all that a person need do to avoid the risk of conviction is to refrain from having sex with a young girl unless he is sure that she is over fourteen. But this begs the question: what if he is sure that she is over fourteen but turns out to be wrong? This argument boils down to the proposition that all that a person who has made a mistake of fact needs to do to avoid the risk of conviction is to make sure that he is not making a mistake of fact. The argument would appear to be somewhat circular. This point leads me to another, more fundamental, problem with the deterrence argument…

[T]he criminal law has come to recognize that punishing the mentally innocent with a view to advancing particular objectives is fundamentally unfair. It is to use the innocent as a means to an end. While utilitarian reasoning may at one time have been acceptable, it is my view that when we are dealing with the potential for life imprisonment it has no place in a free and democratic society. Thus, even if there were some substance to the premise on which the deterrence argument is based, the argument would still, in my opinion, lead to a fundamentally unfair state of affairs.

Indeed. Bizarre that this sort of argument doesn’t even merit rebuttal by the Law Lords (who referred exclusively to the minority judgment, which was still less extreme than the Lords’ own take.)

One argument the Lords took a little more seriously was the problem that England had another offence of underage sex that differed from the one G was convicted mainly in that (a) it was limited to people under 18 (like G) (b) it was called a ‘child sexual offence’, rather than rape; (c) it attracted a much lower penalty than ‘rape’ (which attracted life imprisonment.) It’s blindingly obvious that the intention was for under 18 year-olds to be charged with the lesser offence, at least absence proof of non-consent (which was lacking in this case.) And, so, two of the Law Lords were willing to rule that a prosecutorial decision to maintain the more serious charge was in breach of the right to privacy.

Alas, only two. Here’s Lord Hoffman again:

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.

Right, so the only issue is whether the ‘offence’ is a justifiable interference? It’s hard to see why charges and sentences somehow fall outside the definition of an ‘interference’ with private life. The UK, like Victoria, has a conduct mandate that covers prosecutors. It’s just astonishing that provisions like that are just rejected out of hand. 

Baronness Hale was on more solid ground when she noted that G’s actual sentence for ‘rape’ was pretty lenient and that the prosecutor’s original decision to charge the more serious offence was solidly based on the complainant’s then story:

In effect, therefore, the real complaint is that the appellant has been convicted of an offence bearing the label “rape”. Parliament has very recently decided that this is the correct label to apply to this activity. In my view this does not engage the article 8 rights of the appellant at all, but if it does, it is entirely justified. The concept of private life “covers the physical and moral integrity of the person, including his or her sexual life”… This does not mean that every sexual relationship, however brief or unsymmetrical, is worthy of respect, nor is every sexual act which a person wishes to perform. It does mean that the physical and moral integrity of the complainant, vulnerable by reason of her age if nothing else, was worthy of respect. The state would have been open to criticism if it did not provide her with adequate protection. This it attempts to do by a clear rule that children under 13 are incapable of giving any sort of consent to sexual activity and treating penile penetration as a most serious form of such activity. This does not in my view amount to a lack of respect for the private life of the penetrating male.

This is, of course, a balancing test of sorts. But, when you look at the much more nuanced analysis of both the majority and minority judgments in Canada, it’s easy to see the benefits of separating out these proportionality analyses into a reasonable limits provision, lacking in Europe.

I’ve got to say that I’m astonished by the poor quality of the judgments in this case (just as I was in the House of Lords DNA case that is now before the ECtHR.) The good news as far as I’m concerned is that this poor quality will surely increase the changes of the ECtHR throwing out the reasoning, if not the result, when this case finally makes it to them in a few years from now.

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