SD, R. v [2008] EWCA Crim 527

[2008] EWCA Crim 527Case No 200705931/D1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Monday, 18th February 2008
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE LEVESON
MR JUSTICE HEDLEY
SIR PETER CRESSWELL
Between
R E G I N ACrownv
Between
STEPHEN DEVONALD
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Miss C Howell appeared for ApplicantMiss A Rafferty & Mr J Goodier appeared for Crown
J U D G M E N T

LORD JUSTICE LEVESON:

On

[1]15th October 2007 in the Crown Court at Peterborough, following a change of plea consequent upon a ruling by His Honour Judge Coleman, this applicant admitted causing a person to engage in sexual activity without consent. He was later sentenced to a community sentence with supervision and disqualified from working with children. His application for leave to appeal against conviction has been referred by the Registrar to the Full Court.[2]The facts are straightforward and not in dispute. The applicant's 16-year-old daughter had been in a relationship with the complainant, a 16-year-old boy. To the distress of his daughter, that relationship had broken down and the applicant, then 37 years of age, assumed the identity of a 20-year-old female, "Cassey", and corresponded with the complainant through the Internet. They struck up a friendship and an analysis of the Internet exchanges reveals how "Cassey" set the tone of the conversations which quickly turned to sex. On 29th August, Cassey asked the complainant: "How is your cock today?" and he was asked to show it through a web cam. He does so. He was then encouraged and persuaded, twice, to masturbate in front of a web cam.[3]The prosecution case was that the complainant was clearly masturbating to please Cassey and for her sexual gratification; a study of the on line exchanges would support that conclusion. It is further alleged that he would never have done have so had he known that Cassey was not a 20-year-old female interested in sexual activity over the net but rather the 37 year old father of his former girlfriend. For his part, in a basis of plea compiled after the learned judge's ruling of law, the applicant stated that his motive was to teach the complainant a lesson because he felt that the complainant had mistreated his daughter. In other words, it was deliberately to embarrass him. The applicant denied knowing that, for reasons it is not necessary to report in this judgment, the complainant was particularly vulnerable.[4]The issue upon which the learned judge ruled and which forms the basis of this appeal, because it caused the applicant to change his pleas, concerns the issue of consent. Setting the scene, section 4(1) of the Sexual Offences Act 2003 ("the Act") provides that:
"(1) A person (A) commits an offence if— (a) he intentionally causes another person (B) to engage in an activity. (b) the activity is sexual. (c) B does not consent to engaging in the activity, and (d) A does not reasonably believe that B consents."
There was no issue that the applicant had intentionally caused the complainant to indulge in sexual activity of masturbation. The question was: did he consent so to do?[5]To understand the meaning of "consent" it is necessary to go to sections 75 and 76 of the Act. Section 75 deals with evidential presumptions about consent and concerns consent induced by violence, fear of violence while detained, asleep or unconscious or obtained in circumstances where, because of physical disability, the complainant would not have been able to communicate consent or because consent followed the administration without consent of a stupefying or overpowering substance. None of these circumstances arise for specific decision in this case. Section 76, however, provides:
"...it is to be conclusively presumed— (a) that the complainant did not consent to the relevant act, and. (b) that the defendant did not believe that the complainant consented to the relevant act. (2) The circumstances are that— (a) the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act; (b) the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant."
[6]The Crown argued that both limbs applied in this case; the applicant argued that neither did. We concentrate on the first, namely intentional deceit as to the nature or purpose of the relevant act. Miss Howell, for the applicant, argued that this provision deals with a deception as to the act rather than a deception as to the surrounding circumstances. She cites R v Jheeta [2007] 2 Cr App R 34, [2007] EWCA Crim 1699, where giving the judgment of the court, Sir Igor Judge said at paragraph 24 of the judgment: In our judgment the ambit of section 76 is limited to the "act" to which it is said to apply. In rape cases the "act" is vaginal, anal or oral intercourse. Provided this consideration is constantly borne in mind, it will be seen that section 76 (2)(a) is relevant only to the comparatively rare cases where the defendant deliberately deceives the complainant about the nature or purpose of one or other form of intercourse. No conclusive presumptions arise merely because the complainant was deceived in some way or other by disingenuous blandishments of or common or garden lies by the defendant. These may well be deceptive and persuasive, but they will rarely go to the nature or purpose of intercourse. Beyond this limited type of case, and assuming that, as here, section 75 has no application, the issue of consent must be addressed in the context of section 74."[7]Miss Howell developed that argument by submitting that the complainant well understood that the act was sexual in contradistinction to those cases of clear deception such as persuasion of a 19-year-old girl that the act of intercourse was performing a surgical operation to break 'natures' string (R v Flattery [1876-77] LR 2 QB 410). Deception of purpose, however, can be evidenced as for example in R v Green [2002] EWCA Crim 1501, where bogus medical examinations of young men were carried out by a qualified doctor in the course of which the men were wired to monitors while they masturbated, the purported object to assess potential for impotence. Going back to Jheeta, Sir Igor Judge went on at paragraph 26: "Although the experiment did not involve any form of intercourse, it illustrates the practice of a deception as to the "purpose" of the physical act. 27. These examples demonstrate the likely rarity of occasions when the conclusive presumption in section 76 (2)(a) will apply. For example, R v Linekar [1995] 2 CAR 49 would not fall within its ambit. The appellant promised to pay a prostitute £25 if she had intercourse with him. It was a promise he never intended to keep. On this aspect of the case, that is, that the defendant tricked the prostitute into having intercourse with him, the judge left it to the jury to consider whether his fraud vitiated her consent which was given on the basis that he would pay. The conviction was quashed. The consent given by the complainant was a real consent, which was not destroyed by the appellant's false pretence. If anything, he was guilty of an offence under section 3 of the 1956 Act, that is an offence identical to the offence alleged in counts one and two of the present indictment. Linekar deceived the prostitute about his intentions. He undoubtedly lied to her. However she was undeceived about either the nature or the purpose of the act, that is intercourse. In relation to those charges in Green in which the victim masturbated himself, it was not suggested that he was unaware what he was doing: he believed, however, that the purpose of the act was linked to a medical examination. The distinction with cases such as Linekar is that the purpose of ‘the act’ was consensual sexual intercourse between complainant and defendant. The fact that agreement was obtained by promise of money (or any other blandishment) merely identifies a secondary motive for that agreement. The learned judge ruled that it was open to the jury to conclude that the complainant was deceived as to the purpose of the act of masturbation. We agree. On the facts, as we have described them, it is difficult to see how the jury could have concluded otherwise that the complainant was deceived into believing that he was indulging in sexual acts with, and for the sexual gratification of, a 20-year-old girl with whom he was having an on line relationship. That is why he agreed to masturbate over the web cam. In fact, he was doing so for the father of his ex girlfriend who was anxious to teach him a lesson doubtless by later embarrassing him or exposing what he had done. It is an inevitable inference that it is for that reason that the applicant changed his plea to guilty when the judge so ruled. Miss Howell has over focussed on the phrase "nature of the act", which undoubtedly was sexual but not on its purpose, which encompasses rather more than the specific purpose of sexual gratification by the defendant in the Act of masturbation. In our judgment, this ruling was correct and there is no grounds for challenging the basis on which the applicant changed his plea. This application is therefore refused.

Cited in 2 later judgments