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Request made by : Request made on : Client ID : Content Type: Title : Delivery selection : Number of documents delivered: WLUK IP USER Wednesday, 24 July, 2013 at 12:04 IST innuals-1 Cases > ... > By Year : 2007 R. v Jheeta (Harvinder Singh) Current Document 1

2013 Thomson Reuters South Asia Private Limited

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Positive or Neutral Judicial Treatment

R. v Jheeta (Harvinder Singh)

Court of Appeal (Criminal Division) 11 July 2007

Case Analysis Where Reported

[2007] EWCA Crim 1699; [2008] 1 W.L.R. 2582; [2007] 2 Cr. App. R. 34; [2008] Crim. L.R. 144; Official Transcript

Case Digest

Subject: Criminal law Other related subjects: Sentencing Keywords: Consent; Deception; Presumptions; Procuring intercourse; Rape; Sexual offences Summary: In circumstances where an offender had deceived a complainant and pressured her into having sexual intercourse more frequently than she would have done otherwise, the conclusive presumption under the Sexual Offences Act 2003 s.76 had no application as the complainant had not been deceived as to the nature or purpose of sexual intercourse. Abstract: The appellant (J) appealed against convictions, and subsequent sentence of eight years' imprisonment, on two counts of procuring sexual intercourse by false pretences contrary to the Sexual Offences Act 1956 s.3(1), four counts of rape contrary to the Sexual Offences Act 2003 s.1(1) and one count of blackmail. J had met the complainant (C) in college and in 2002, they began a consensual sexual relationship. A few months later C started receiving threatening text messages and she confided in J. J was in fact responsible for the messages but reassured C that he would protect her. The messages continued and C decided to involve the police. J said he would lodge a complaint on her behalf. C then received various text messages purportedly from police officers involved in her case. As a result of one of the messages C paid J sums of money to arrange security for her and watch her house. C had no idea J was responsible for the entire process and over a period of two or three years tried to break off the relationship. Whenever she tried she would receive text messages purportedly from the police officers telling her to sleep with J or she would be liable for a fine. In 2006, after letters were sent to her home and read by her mother, C went to the police and J was arrested. In interview J admitted C had intercourse with him because of the texts and that she had not truly consented. J stated that C would have been happy to have intercourse from time to time but he wanted greater frequency. J was charged with rape under the 2003 Act for some of the offences, as the offence of procuring sexual intercourse by false pretences had ceased to exist when the 2003 Act came into force. J was advised to plead guilty to rape on the basis that his admitted behaviour fell within the ambit of s.76 of the 2003 Act and accordingly there was an irrebuttable presumption that C had not consented to intercourse. J was sentenced to eight years concurrent on each count. J contended that the admitted deception was not a deception about the nature or purpose of the "relevant act" for the

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purpose of s.76(2)(a) of the 2003 Act and advice given to him at the time was incorrect in law. The Crown contended that the 2003 Act brought together all the offences of a sexual nature could not have been intended to decriminalise deliberate conduct designed to deceive a woman into having sexual intercourse. Appeal allowed in part. (1) The ambit of s.76 of the 2003 Act was limited to the "act", which in the case of rape was vaginal, anal or oral intercourse. Section 76(2)(a) of the 2003 Act was relevant to the comparatively rare cases where a defendant deliberately deceived a complainant about the nature or purpose of the intercourse. No conclusive presumptions arose merely where a complainant was deceived by a defendant's lies; whilst they may be deceptive and persuasive they would rarely go to the nature or purpose of intercourse. The cases in which the conclusive presumption, under s.76(2)(a) of the 2003 Act, would arise would be rare, R. v Flattery (John) (1877) 2 Q.B.D. 410, R v Williams (1923) 1 KB 340, R. v Tabassum (Naveed) [2000] 2 Cr. App. R. 328 and R. v Green (Peter Donovan) [2002] EWCA Crim 1501considered. In the instant case the conclusive presumption in s.76(2)(a) of the 2003 Act had no application and J had been wrongly advised that it had. It was clear from the basis of plea that J had deceived C and had pressured her into having sexual intercourse more frequently than she would have done. However she was not deceived as to the nature or purpose of intercourse but deceived as to the situation in which she found herself. (2) J had admitted that on some occasions that intercourse had taken place when C was not truly consenting. C's choice to have intercourse on those occasions was not a free choice or consent for the purpose of s.74 of the 2003 Act and, therefore, J's convictions for rape were safe. (3) The sentences passed for the offences of procuring sexual intercourse by false pretences exceeded the statutory maximum and would be quashed and replaced with sentences of 18 months. The overall sentence was excessive and would be reduced to six years' imprisonment. Further, the disqualification order under the Criminal Justice and Court Services Act 2000 s.28 was inappropriate given the age of C and was quashed. Judge: Sir Igor Judge (President, QB); Simon, J.; Judge Goldsack Q.C. Counsel: For the appellant: Elizabeth Marsh QC. For the Crown: Mark Wall QC. Solicitor: For the Crown: CPS (Warwick).

Significant Cases Cited

R. v Green (Peter Donovan) [2002] EWCA Crim 1501; Official Transcript; CA (Crim Div) R. v Tabassum (Naveed) [2000] 2 Cr. App. R. 328; [2000] Lloyd's Rep. Med. 404; [2000] Crim. L.R. 686; (2000) 97(22) L.S.G. 43; Times, May 26, 2000; Official Transcript; CA (Crim Div) R. v Flattery (John) (1876-77) L.R. 2 Q.B.D. 410; (1887) 13 Cox C.C. 388; Crown Cases Reserved

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R. v Green (Peter Donovan)

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[2002] EWCA Crim 1501; Official Transcript; CA (Crim Div)

R. v Tabassum (Naveed)

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[2000] 2 Cr. App. R. 328; [2000] Lloyd's Rep. Med. 404; [2000] Crim. L.R. 686; (2000) 97(22) L.S.G. 43; Times, May 26, 2000; Official Transcript; CA (Crim Div) R. v Linekar (Gareth) [1995] Q.B. 250; [1995] 2 W.L.R. 237; [1995] 3 All E.R. 69; [1995] 2 Cr. App. R. 49; [1995] Crim. L.R. 320; (1995) 92(2) L.S.G. 35; (1994) 138 S.J.L.B. 227; Times, October 26, 1994; Independent, December 19, 1994; CA (Crim Div) R. v Olugboja (Stephen) [1982] Q.B. 320; [1981] 3 W.L.R. 585; (1981) 73 Cr. App. R. 344; CA (Crim Div) R. v Williams (Owen Richard) [1923] 1 K.B. 340; (1924) 17 Cr. App. R. 56; CCA R. v Flattery (John) (1876-77) L.R. 2 Q.B.D. 410; (1887) 13 Cox C.C. 388; Crown Cases Reserved

Key Cases Citing

Applied R. v B Unreported; CA (Crim Div) Considered Assange v Sweden [2011] EWHC 2849 (Admin); (2011) 108(44) L.S.G. 17; Official Transcript; DC R. v Lambert (Lewis) [2009] EWCA Crim 2860; [2010] 1 Cr. App. R. 21; [2010] Crim. L.R. 576; Official Transcript; CA (Crim Div)

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Applied

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R. v B Unreported; CA (Crim Div) Considered

Assange v Sweden [2011] EWHC 2849 (Admin); (2011) 108(44) L.S.G. 17; Official Transcript; DC Considered R. v Lambert (Lewis) [2009] EWCA Crim 2860; [2010] 1 Cr. App. R. 21; [2010] Crim. L.R. 576; Official Transcript; CA (Crim Div)

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Mentioned by R. v Devonald (Stephen) [2008] EWCA Crim 527; Official Transcript; CA (Crim Div)

Significant Legislation Cited

Criminal Justice and Court Services Act 2000 (c.43) s.28 Sexual Offences Act 1956 (c.69) s.3(1) Sexual Offences Act 2003 (c.42) s.1(1)

Sexual Offences Act 2003 (c.42) s.74 Sexual Offences Act 2003 (c.42) s.76 Sexual Offences Act 2003 (c.42) s.76(2)(a)

Legislation Cited

Criminal Justice Act 2003 (c.44) s.1(1) Criminal Justice Act 2003 (c.44) s.74 Criminal Justice and Court Services Act 2000 (c.43) s.28 Sexual Offences Act 1956 (c.69) s.3 Sexual Offences Act 1956 (c.69) s.3(1) Sexual Offences Act 2003 (c.42) Sexual Offences Act 2003 (c.42) s.1(1) Sexual Offences Act 2003 (c.42) s.74 Sexual Offences Act 2003 (c.42) s.75

Sexual Offences Act 2003 (c.42) s.76 Sexual Offences Act 2003 (c.42) s.76(2)(a)

Sexual Offences Act 2003 (c.42) s.77 Theft Act 1968 (c.60) s.21

Journal Articles

Sexual offences: consent, capacity and children Child sex offences; Consent; Scotland; Sexual offences; Voluntary intoxication. Arch. News 2008, 10, 6-9

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Rape: consent - nature or purpose of act - deception - conclusive presumptions Consent; Deception; Irrebuttable presumptions; Procuring intercourse; Rape. Crim. L.R. 2008, Feb, 144-147 The meaning of consent within the Sexual Offences Act 2003 Consent; Sexual offences. Crim. Law. 2008, 178, 3-5 The criminal offence of causing infection of HIV virus Comparative law; Grievous bodily harm; HIV; Sexually transmitted diseases. Crim. Law. 2008, 187, 2-7 Rape: consent Consent; Procuring intercourse; Rape. J. Crim. L. 2008, 72(1), 11-14 The concept of consent under the Sexual Offences Act 2003 Consent; Rape; Reasonable belief; Sexual assault. J. Crim. L. 2008, 72(6), 519-536 Fraud vitiating consent under the Sexual Offences Act 2003: new developments Consent; Deception; Fraud; Mistake; Sexual offences. J.P. 2008, 172(49), 801-802 Criminal law (February) Closure orders; Dangerous driving; Learning difficulties; Sexual offences; Violent offences; Young offenders. L.S.G. 2008, 105(08), 21-22 Case in detail Consent; Deception; Presumptions; Procuring intercourse; Rape. Arch. News 2007, 7, 5-6 Three new cases on consent Consent; Fraud; Ignorance; Rape; Sexually transmitted diseases; Voluntary intoxication. C.L.J. 2007, 66(3), 490-493 Rape: consent and meaning of deceit as to the nature and purpose of the relevant act Consent; Deception; Rape; Unsafe convictions. J.P. 2007, 171(30), 522-523 Sexual intercourse obtained by deception Consent; Deception; Rape; Unsafe convictions. Pol. J. 2007, 80(3), 279-281

Books

Archbold Criminal Pleading Evidence and Practice 2013 Ed. Chapter: Chapter 20 - Sexual Offences

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Documents: 20-14 Sexual Offences Act 2003, ss.75, 76 Evidential presumptions about consent Banks on Sentence 8th Ed. Chapter: Rape Documents: Section 3. - Types of rape

Phipson on Evidence 17th Ed. Incorporating Second Supplement Chapter: Chapter 6 - Burden and Standard of Proof Documents: Sub-section (b) - Different types of presumptions Phipson on Evidence 17th Ed. Chapter: Chapter 6 - Burden and Standard of Proof Documents: Sub-section (b) - Different types of presumptions

2013 Sweet & Maxwell

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