No. 93/6308/X4
BAILII Citation Number: [1994] EWCA Crim 2
IN THE SUPREME COURT OF JUDICATURE
THE COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand
London WC2
Date: Friday 21st October 1994

B e f o r e :
LORD JUSTICE SWINTON THOMAS
MR JUSTICE MORLAND
and
MRS JUSTICE STEEL
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R E G I N A
v
GARETH LINEKAR
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(Computer Aided Transcript of the Stenograph Notes of
John Larking, Chancery House, Chancery Lane, London WC2
Telephone No: 071 404 7464
Official Shorthand Writers to the Court)

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MR J MARKSON appeared on behalf of the Appellant
MR T SPENCER appeared on behalf of the Respondent
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JUDGMENT

Friday 21st October 1994

LORD JUSTICE SWINTON THOMAS: Mr Justice Morland will give the judgment of the Court.

MR JUSTICE MORLAND: On 10th September 1993 in the Central Criminal Court before his Honour Judge Coombe, the appellant was convicted by a majority of 11 to 1 on a single count of rape. On 8th October he was sentenced by way of a combination order to two years probation and 100 hours community service. The sentence imposed indicates the unusual facts of the case. The appellant appeals against his conviction by leave of the Single Judge.
The complainant was a woman of 30 who worked occasionally as a prostitute to supplement her Social Security benefit. On 21st March 1993 she was working as such outside the Odeon Cinema in Streatham. Some time after midnight she was approached by the appellant who was then aged 17. There was negotiation between the two of them and the sum of £25 was agreed for sexual services. The appellant and the complainant went off to find a suitable place where they could have sexual intercourse. This proved difficult but eventually, after a long period of time, sexual intercourse took place between them on the balcony of a block of flats. After sexual intercourse had taken place the appellant, in breach of the agreement he had made with the complainant, made off without paying.
Immediately the complainant knocked on the door of a neighbouring house. She was distressed, nearly naked and complained that she had been raped. The police were called. The appellant was arrested and, when interviewed, told a number of lies.
The Crown case, based on the evidence of the complainant, was that the act of sexual intercourse took place as a result of a forced violent assault upon her and did not take place with her consent. She said in evidence that she would not have agreed to sexual intercourse until she had been paid in advance and unless the man wore a condom.
The case for the Crown was what might be described, if one can describe rape as such, an ordinary rape; that is forcible pentration of the woman without her consent.
The appellant did not give evidence on his own behalf, but cross examination of the complainant was on the lines that the act of sexual intercourse had been done with the complainant's consent, and that what had happened was that afterwards the appellant had broken his promise to pay her the £25. It seemed clear that the appellant did not in fact have £25 and, as the jury were to find by a verdict, which was in the nature of a special verdict, at the time of sexual intercourse, he did not have any intention of paying even if he had the money to pay. 
Before summing up to the jury, discussion took place between counsel and the judge on the basis that a possible conclusion by the jury was that the jury might not have been sure about the evidence of the complainant and there was a halfway house, so to speak, that sexual intercourse had taken place with the consent of the complainant, but that consent had been obtained as a result of, and induced by, the fraud of the appellant; that fraud being a false pretence by him that he had a present intention of paying the £25 that he had promised when the bargain was made.
When the jury returned, they were specifically asked on what basis they found the appellant guilty. The answer that was given by the foreman of the jury was that the basis was that the appellant never intended to pay and consent was vitiated by fraud.
In his summing up, the learned judge, at page 13D said:
"There is a possible scenario, if I can put it that way, in between those two extremes, and again it is a matter of fact for you to judge, but I want to tell you what the legal position would be. The woman, as I have reminded you just now   and I will go through her evidence in slightly more detail a little later   said, 'I would never go ahead and have sexual intercourse with a man without payment first,'....." 
The judge went on to say, at page 13H:
"It is a real possibility that she decided to go ahead and have sexual intercourse, trusting the man would honour his obligation, and supposing contrary to my second scenario, which would lead to a complete acquittal, you were satisfied so you were sure that the defendant never intended to pay before he penetrated her at all. He tricked her you follow, not forced her because that is scenario number one, but tricked her, well then I am going to tell you that it would be the case or may be the case, that you would take the view that there was no consent at all. That would be consent vitiated by fraud, you follow. She tells you she would never consent to have intercourse and indeed nobody suggested they had intercourse because they were romantically attached or physically affected by each other emotionally, it was a commercial deal, a squalid type no doubt. If the position were that he quite deliberately never intended to pay at the outset, well then the fraud on her is that she was tricked into believing he genuinely intended to pay when she submitted sexually, and therefore it is a matter for you which you would no doubt take the view that the fraud vitiated the consent because her consent was given on the basis he was going to pay up, you follow..... If that is your view, then it would be rape because the Crown would have proved lack of consent, you follow, and you may think I say it would be rape that may be putting it too highly, you have got to go on whether he appreciated that his fraud meant that she was not consenting. You have got to be satisfied so you are sure that he knew of it or was reckless about it at the very least, but if you were of that mind it would still be rape." 
The second scenario that was open to the jury to conclude was that having had sexual intercourse the appellant changed his mind, decided not to pay her the agreed £25 and made off. In that case, as the judge made clear to the jury, the appellant would be not guilty.
On page 15D of the summing up the learned judge said:
"It would help me, if you take the view he is guilty at all, if you would indicate that he is guilty because he forced himself upon the woman or that he is guilty because he did have intercourse without her consent, her consent being vitiated by fraud." 
The reason the judge asked the jury to come with, in effect, a special verdict, was so that he could sentence the appellant in accordance with the finding of the jury, and it was for that reason that the sentence of the combination order was imposed by the judge.
This Court is indebted to both counsel for their research.
Mr Spencer for the Crown realistically said to us that he anticipated that he would have difficulty in upholding the conviction.
Before the learned judge there was argument, and cases were cited before him, but the learned judge realised that the matter was of considerable legal difficulty and anticipated that the result of his direction might well, and understandably, reach this Court.
The problem is highlighted, for example, in the 15th Report of the Criminal Law Revision Committee on sexual offences which is dated 30th December 1983. It is worth quoting paragraph 2.25 on page 496 of the Reports of the Committee:
"We are, however, concerned about the precision of the distinction that can be drawn between fraud which is sufficient to vitiate consent and other types of fraud. This concern has been increased by a recent decision of the Court of Appeal that the issue of consent is a question of fact for the jury and that consent should be given its ordinary meaning." 
That is the case of Olugboja (1981) 73 Cr.App.R. 344, where the court indicates that in certain cases it was of the view that the decisions could be explained by a vitiation of consent by fraud.
The Committee went on to say:
"At one extreme, fraud as to the nature of the act is clearly accepted as rape; while, at the other, a man who promises a woman a fur coat in return for sexual intercourse, with no intention of fulfilling his promise, would not generally be regarded as committing rape. It is, however, in our opinion inherently unsatisfactory to leave what constitutes an offence to be determined on the facts of each case. We recommend, therefore, that it should be expressly stated in the legislation which cases of consent obtained by fraud amount to rape. Somewhere a line must be drawn. We would include within rape those cases that before 1976 clearly were rape, namely fraud as the nature of the act and impression of a husband. We see no reason to distinguish between consent obtained by impersonating a husband and consent contained by impersonating another man, so that latter case should also constitute rape. All other cases of fraud should be dealt with under section 3 of the 1956 Act and should not amount to rape." 
The reference to section 3 of the 1956 Act is the procurement of sexual intercourse by false pretences.
The value of the paragraph which we have quoted from the Criminal Law Revision Committee Report of 1983 is that it was a Committee of which Lawton LJ was the chairman and among its members were Waller LJ, Lloyd J (as he then was), McCullough J and the future Hazan J.
We venture to suggest that the recommendation in that paragraph does represent the law as it now is, and has been probably for over a century.
An essential ingredient of the offence of rape is the proof that the woman did not consent to the actual act of sexual intercourse with the particular man who penetrated her. If the Crown prove that she did not consent to sexual intercourse, rape is proved. That ingredient is proved in the so called "medical cases". The victim did not agree in those cases to sexual intercourse. In Flattery [1877] 2 Q.B.D. 410, she agreed to a surgical procedure which she hoped would cure her fits. In Williams [1923] 1 K.B. 340, she agreed to a physical manipulation which would provide her with extra air supply to improve her singing. 
In our judgment, it is the non consent to sexual intercourse rather than the fraud of the doctor or choir master that makes the offence rape. Similarly, that ingredient is not proved in the husband impersonation cases because the victim did not consent to sexual intercourse with the particular man who penetrated her. We venture to suggest that at common law it is immaterial whether the penetrator is impersonating a husband, a co habitee or a lover, as is supported by the Criminal Law Revision Committee in the paragraph that we have quoted.
In the 19th century, English judges got themselves into somewhat of a tangle in impersonation cases. In the case of Jackson [1822] Russell and Ryan 487, a court of 12 judges decided by 8 to 4 that carnal knowledge of a woman whilst she was under the belief that the man is her husband was not rape. In Barrow (1868) L.R. 1 C.C.R. 156, a court of five judges took the same view contrary to the opinion of the trial judge, Kelly C.B.. In that case Bovill C.J., giving a judgment with which Channell B., Byles J, Blackburn J and Lush J concurred, said:
"It does not appear that the woman, upon whom the offence was alleged to have been committed, was asleep or unconscious at the time when the act of connection commenced. It must be taken, therefore, that the act was done with the consent of the prosecutrix, though that consent was obtained by fraud. It falls therefore within the class of cases which decide that, where consent is obtained by fraud, the act done does not amount to rape." 
Insofar as that case is still good law, it supports the argument of the appellant. 
In the case of Flattery, a court of five judges expressed dissatisfaction with the decision in Barrow. It needed the good sense of the judges in Ireland to resolve the problem in the case of Dee (1884) 14 Law Reports (Ireland), Common Law, 468. The Court of the Crown Cases Reserved of Ireland, consisted of six judges including May C.J and Palles C.B., May C.J. having been the trial judge. The facts of that case are set out shortly in the judgment of May C.J. on page 475:
"There is not, I think, any doubt or dispute as to the facts and circumstances of the case. Upon the report of the Judge, who was myself, and the findings of the jury, it is, I think, established that Judith Gorman, wife of one J. Gorman, who was absent (having gone out to fish), lay down upon a bed in her sleeping room in the evening, when it was dark; that the prisoner came into the room, personating her husband, lay down upon her and had connexion with her; that she did not at first resist, believing the man to be her husband, but that, on discovering that he was not her husband, which was after the commencement but before the termination of the proceeding, her consent or acquiescence terminated, and she ran downstairs. It appeared, I think, manifestly that the prisoner knew the woman was deceived, as she said to the prisoner in his presence and hearing, when he came into the room, 'You are soon home tonight,' to which he made no reply. At the time my own opinion, founded upon well known cases in England, was that the prisoner was not guilty of rape, but at the request of the counsel for the Crown I left certain questions to the jury, and, upon their findings, directed them to find a verdict of guilty, reserving the case for consideration of the Court, which is now called upon to decide the question which arises." 
The Chief Justice then went on to consider the various English authorities and then said, at page 478:
"Now, rape being defined to be sexual connexion with a woman without her consent, or without, and therefore against, her will, it is essential to consider what is meant and intended by consent. Does it mean an intelligent, positive concurrence of the will of the woman, or is the negative absence of dissent sufficient? In these surgical cases it is held that the submission to an act believed to be a surgical operation does not constitute consent to a sexual connexion, being of a wholly different character. This is no consensus quoad hoc. In the case of personation there is no consensus quoad hanc personam." 
In our judgment, applying those dicta to the facts of the present case, here there was consent by the prostitute to sexual intercourse, consensus quoad hoc. There was consent by the prostitute to sexual intercourse with this particular appellant consensus quoad hanc personam. The so called "medical cases", such as Flattery and Williams are examples of no consensus quoad hoc. The husband impersonation cases are examples of no consensus quoad hanc personam.
Palles C.B., in his very learned judgment, said at page 488:
"I think it follows that.....an act done under bona fide belief that it is another act different in its essence is not in law the act of the party. That is the present case   a case which it is hardly necessary to point out is not that of consent in fact sought to be avoided for fraud, but one in which that which took place never amounted to consent. The person by whom the act was to be performed was part of its essence. The consent of the intellect, the only consent known to the law, was the act of the husband only, and of this the prisoner was aware." 
In our judgment, the ratio of the case Dee is the absence of consent and not the existence of fraud which makes it rape.
The case of Dee was followed in 1885 by the Criminal Law Amendment Act 1885 which is entitled:
"An Act to make further provision for the Protection of Women and Girls, the suppression of brothels and other purposes." 
Under section 3 (2) of that Act it was enacted: 
"3. Any person who  .....
(2) By false pretences or false representations procures any woman or girl, not being a common prostitute or of known immoral character, to have unlawful carnal connexion, either within or without the Queen's dominions;.....
shall be guilty of a misdemeanor, and being convicted thereof shall be liable at the discretion of the court to be imprisoned for any term not exceeding two years, with or without hard labour.
Provided that no person shall be convicted of an offence under this section upon the evidence of one witness only, unless such witness be corroborated in some material particular by evidence implicating the accused." 
It should be noted that under that section, in contradistinction to rape where life imprisonment was the sentence, the maximum sentence was one of two years and also, unlike rape, corroboration was required as a matter of law.
It was in section 4 of the same statute that it was enacted in a form that is declaratory of the common law:
"Whereas doubts have been entertained whether a man who induces a married woman to permit him to have connexion with her by personating her husband is or is not guilty of rape, it is hereby enacted and declared that every such offender shall be deemed to be guilty of rape." 
Under section 9 of that statute it was enacted that:
"If upon the trial of any indictment for rape,....the jury shall be satisfied that the defendant is guilty of an offence under section three" 
  that is procurement of sexual intercourse by false representations  
".....but are not satisfied that the defendant is guilty of felony.....the jury may acquit" 
of rape and find the defendant guilty of the misdemeanour of procuring sexual intercourse by false pretences.
Although the wording of the sections are slightly different, they foreshadow similar sections in the Sexual Offences Act 1956, and the offence of procuring sexual intercourse by false representation remains, in the proper case and subject to the appropriate direction for the requirement as a matter of law for corroboration, an alternative verdict that a jury can return.
In 1888 was decided the case of Clarence [1888] 22 Q.B.D. 23. This was the well known case of the husband who knew that he was suffering from gonorrhoea and his wife did not, and he quite deliberately had sexual intercourse with her with the result that the disease was communicated to her. He was convicted of an indictment charging him with inflicting grievous bodily harm under section 20, and of an assault occasioning actual bodily harm under section 47 of the Offences Against the Person Act 1861. The court of 13 judges, by a majority of 9 to 4, decided that Clarence was not guilty under either section.
The importance of the case of Clarence, in our judgment, is that it exposes the fallacy of the submission that there can be rape by fraud or false pretences. Wills J, at page 27, says:
"That consent obtained by fraud is no consent at all is not true is a general proposition either in fact or in law. If a man meets a woman in the street and knowingly gives her bad money in order to procure her consent to intercourse with him, he obtains her consent by fraud, but it would be childish to say that she did not consent. In respect of a contract, fraud does not destroy consent. It only makes it revocable." 

On the top of page 43 Stephen J says:

"It seems to me that the proposition of fraud vitiates consent in criminal matters is not true if taken to apply the fullest sense of the word, and without qualification." 
Then further down the page:
"Many seductions would be rapes, and so might acts of prostitution procured by fraud, as for instance by promises not intended to be fulfilled." 
We interpose to say that that is the situation in this particular appeal.
"These illustrations appear to shew clearly that the maxim that fraud vitiates consent is too general to be applied to these matters as if it were absolutely true..... The only cases in which fraud indusputably vitiates consent in these matters are cases of fraud as to the nature of the act done. As to fraud as to the identity of the person by whom it is done, the law is not quite clear. In Reg. v. Flattery, in which consent was obtained by representing the act was a surgical operation, the prisoner was held to be guilty of rape. In the case where consent was obtained by the personation of a husband, there was before the passing of the Criminal Law Amendment Act of 1885 a conflict of authority. The last decision in England, Reg. v. Barrow, decided that the act was not rape, and Reg. v. Dee, decided in Ireland in 1884, decided it was. The Criminal Law Amendment Act of 1885 'declared and enacted' that thenceforth it should be deemed to be rape, thus favouring the view taken in Reg. v. Dee. .....they justify the observation that the only sorts of fraud which so far destroy the effect of a woman's consent as to convert a connection consented to in fact into a rape are frauds as to the nature of the act itself, or as to the identity of the person who does the act. There is abundant authority to shew that such frauds as these vitiate consent both in the case of rape and in the case of indecent assault. I should prefer myself to say that consent in such cases does not exist at all, because the act consented to is not the act done." 
With that sentence, this Court respectfully agrees.
Stephen J went on to say:
"Consent to a surgical operation or examination is not a consent to sexual connection or indecent behaviour. Consent to connection with a husband is not consent to adultery.
I do not think that the maxim that fraud vitiates consent can be carried further than this in criminal matters. It is commonly applied to cases of contract, because in all cases of contract the evidence of a consent not procured by force or fraud is essential, but even in these cases care in the application of the maxim is required, because in some instances suppression of the truth operates as fraud, whereas in others at least a suggestion of falsehood is required. The act of intercourse between a man and woman cannot in any case be regarded as the performance of a contract." 
Then at the bottom of page 44:
"The woman's consent here was as full and conscious as consent could be. It was not obtained by any fraud as to the nature of the act or as to the identity of the agent." 
Those two last sentences, in our judgment, apply clearly to the facts of this case.
Moving to more recent times, there is the highly persuasive authority of Papadimitropolus v. R. [1956] C.L.R. 249, a decision of the High Court of Australia. The Court was presided over by Sir Owen Dixon C.J., and consisted of McTiernan J, Webb J, Kitto J and Taylor J. The headnote reads:
"Rape is carnal knowledge of a woman without her consent. Carnal knowledge is the physical act of penetration. It is the consent to such physical act of penetration which is in question upon an indictment for rape. Such a consent demands a perception as to what is about to take place, as to the identity of the man and the character of what he is doing. Once the consent is comprehending and actual, the inducing causes cannot destroy its reality and leave the man guilty of rape.
Where a woman consented to sexual intercourse under the belief, fraudulently induced by the man, that she was married to him,
Held, that the man was not guilty of rape." 
The facts of that case were that the complainant believed that she had gone through a marriage with the appellant.
In the judgment of the court, at page 260, the Court said:
"It must be noted that in considering whether an apparent consent is unreal it is the mistake or misapprehension that makes it so. It is not the fraud producing the mistake which is material so much as the mistake itself. But if the mistake or misapprehension is not produced by the fraud of a man, there is logically room for the possibility that he was unaware of the woman's mistake so that a question of his mens rea may arise. So in R. v. Lambert Cussen J says:  'It is plain that, though in these cases the question of consent or non consent is primarily referable to the mind of the woman, if she has really a mind, yet the mind of the man is also affected by the facts which indicate want of consent or possible want of capacity to consent'. For that reason it is easy to understand why the stress has been on the fraud. But that stress tends to distract the attention from the essential inquiry, namely, whether the consent is no consent because it is not directed to the nature and character of the act. The identity of the man and character of the physical act that is done or proposed seem now clearly to be regarded as forming part of the nature and character of the act to which the woman's consent is directed. That accords with the principles governing mistake vitiating apparent manifestations of will in other chapters of the law.
In the present case the decision of the majority of the Full Court extends this conception beyond the identity of the physical act and the immediate conditions affecting its nature to an antecedent inducing cause   the existence of a valid marriage. In the history of bigamy that has never been done. The most heartless bigamist has not been considered guilty of rape. Mock marriages are no new thing. Before the Hardwicke Marriage Act it was a fraud easily devised and readily carried out. But there is no reported instance of an indictment for rape based on the fraudulent character of the ceremony. No indictment of rape was founded on such a fraud. Rape, as a capital felony, was defined with exactness, and although there has been some extension over the centuries in the ambit of the crime, it is quite wrong to bring within its operation forms of evil conduct because they wear some analogy to aspects of the crime and deserve punishment. The judgment of the majority of the Full Court of the Supreme Court goes upon the moral differences between marital intercourse and sexual relations without marriage. The difference is indeed so radical that it is apt to draw the mind away from the real question which is carnal knowledge without consent. It may well be true that the woman in the present case never intended to consent to the latter relationship. But, as was said before, the key to such a case as the present lies in remembering that it is the penetration of the woman's body without her consent to such penetration that makes the felony. The capital felony was not directed to fraudulent conduct inducing her consent. Frauds of that kind must be punished under other heads of the criminal law or not at all: they are not rape. To say that in the present case the facts which the jury must be taken to have found amount to wicked and heartless conduct on the part of the applicant is not enough to establish that he committed rape. To say that in having intercourse with him she supposed that she was concerned in a perfectly moral act is not to say that the intercourse was without her consent. To return to the central point; rape is carnal knowledge of a woman without her consent: carnal knowledge is the physical fact of penetration; it is the consent to that which is in question; such a consent demands a perception as to what is about to take place, as to the identity of the man and the character of what he was doing. But once the consent is comprehending and actual the inducing causes cannot destroy its reality and leave the man guilty of rape." 
Respectfully applying those dicta to the facts of the present case, the prostitute here consented to sexual intercourse with the appellant. The reality of that consent is not destroyed by being induced by the appellant's false pretence that his intention was to pay the agreed price of £25 for her services. Therefore, he was not guilty of rape.
If anything, the appellant was guilty of an offence under section 3 of the 1956 Act which was not an alternative that was put to this jury.
In our judgment, the appeal must be allowed, and the conviction and sentence quashed. 

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