BAILII Citation Number: [2000] EWCA Crim 3545
Case No: 9904964 Y4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2

Date: Monday 10th April 2000

B E F O R E :

LORD JUSTICE ROCH

MRS JUSTICE SMITH

and

MR JUSTICE MOORE‑BICK

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R E G I N A

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W

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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Tel No: 0171 421 4040   Fax No: 0171 831 8838
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MR J ROYCE QC & MR MA HORTON appeared on behalf of
the Appellant
MR P CHADD QC & MR M MATHER‑LEES appeared on behalf of the Crown

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JUDGMENT
1.	LORD JUSTICE ROCH:  On 25th June 1999, at the Bristol Crown Court, the appellant was convicted of assault occasioning actual bodily harm, wounding with intent to do grievous bodily harm and threatening to damage property. He was sentenced by the judge who had presided over his trial, his Honour Judge Boothman, on 23rd July 1999 to six months’ imprisonment for the assault occasioning actual bodily harm, life imprisonment for the wounding with intent to do grievous bodily harm and three months’ imprisonment for threatening to damage property. All those sentences were to run concurrently. The judge indicated that in his judgment a period of three years’ imprisonment would have been appropriate for the wounding with intent to do grievous bodily harm, and that as a consequence the question of parole would be open for consideration after the appellant had served 18 months. In fact the appellant had already been in prison for nine months, which meant that nine months after 23rd July 1999 it would be open to the Parole Board to consider the appellant’s release on parole. 
2.	Why the life sentence on count 2 in the indictment, the wounding with intent to do grievous bodily harm?  It was imposed under the Crime (Sentences) Act 1997 as a mandatory life sentence. That Act provides in section 2:
“(1) This section applies where ‑‑
(a) a person is convicted of a serious offence committed after the commencement of this section; and
(b) at the time when that offence was committed, he was 18 or over and had been convicted in any part of the United Kingdom of another serious offence.
(2) The court shall impose a life sentence.....” 
3.	It is not necessary for the purposes of this appeal to go on to see what the provision is relating to the meaning of life sentence. In subsection (3) it is provided:
“Where the court does not impose a life sentence, it shall state in open court that it is of that opinion [that is to say the opinion that there are exceptional circumstances relating to either of the offences or to the offender which justify the court in not passing a life sentence] and what the exceptional circumstances are.” 
4.	Then, in subsection (5), the offences which are serious offences for the purpose of section 2 are listed, and there are eight of them in number, and we shall return to that subsection later in this judgment.
5.	The appellant had been charged also with rape and he was acquitted of that charge. He appeals against sentence with leave of the Single Judge.
6.	The point that is raised is whether this is a case  in which the requirements of section 2(1) of the 1997 Act were present so that a mandatory life sentence had to be passed.
7.	The appellant appeared before the Bristol Crown Court in July 1990. He was convicted on 5th July 1990 by a jury following a trial lasting some five days of buggery and assault occasioning actual bodily harm.
8.	The offence was against the appellant’s then female partner. The appellant, it would appear, did not deny an act of buggery with his female partner. His evidence was to the effect that the female partner urged him to commit buggery upon her. It was the prosecution’s case that the act of buggery was against the woman’s consent. At that time it was not necessary for the jury to be sure that the act of buggery was without the victim’s consent.
9.	The appellant appealed against the sentence imposed upon him in that case of four years’ imprisonment with leave of the Single Judge. That appeal came before this Court on 4th July 1991, the Court consisting of Lord Justice Beldam, Mr Justice Simon Brown and Mr Justice Swinton Thomas. The judgment of the Court was given by Mr Justice Simon Brown (as he then was). This Court recorded that the judge had correctly summed up the buggery offence to the jury by  pointing out that the question of consent was, in law, immaterial. The Court went on to record that it was accordingly left to the judge when he came to sentence to decide the issue whether the woman had or had not consented, and the Court went on, referring to the judge:
“He did so and expressed the clear view that this was non‑consensual buggery, directing himself correctly to apply the criminal standard of proof. Central to this appeal is the proposition that he was wrong so to find.” 
10.	Later in the judgment of this Court a passage from the judge’s sentencing remarks are recorded in this Court’s judgment. That passage reads:
“It is...my task to say whether the act of buggery which you committed upon this young woman was with her willing participation, with her consent, or not. I have, of course, in deciding that issue, to have in mind the criminal burden of proof, as did the jury when they came to their decision on the verdict. I have carefully considered all the evidence in this case, the evidence which the young woman herself gave, the evidence the doctor gave, and the evidence which you have given. I have in mind as well the circumstances surrounding this particular offence, and in particular, so far as they may be relevant, the letters which she wrote to you whilst you were in prison. Nonetheless, in all the circumstances, I say at once that I have not the slightest doubt that the offence was committed by you against her without her consent, and the sentence that this Court must pass must be based upon that and that position alone.” 
11.	The facts of the offence for which the appellant was tried in June 1999 were that the complainant was a 24 year old woman who was cohabiting at that time with  the appellant and by whom the appellant had had two sons. They had lived together for some five years before separating in August 1998.
12.	It was the prosecution’s case that the appellant is a man of aggressive temper. He and the complainant were at one that their relationship had been violent and stormy, and that during that relationship sexual activity between them had frequently been accompanied by violence. It was the appellant’s evidence that the violence was not simply on his side; it was also on his partner’s side.
13.	It was against that background that in June 1998 it was said that the appellant had physically attacked the complainant, that in the course of that attack he had wounded her with intent to do grievous bodily harm, and that he had raped her. He was acquitted of the rape but he was convicted of wounding with intent to cause grievous bodily harm.
14.	His Honour Judge Boothman, prior to sentencing the appellant, had to rule on whether or not the requirements of section 2 of the 1997 Act were satisfied. He ruled that they were in a careful and detailed ruling of which we have a transcript. The important part of that ruling starts at page 2E of the transcript where his Honour Judge Boothman said:
“I have dealt with that at some length because it is the plank of Mr Royce’s submission to me that the case of W back in 1990 is far from clear. What he essentially says is this:  that if it is not clear any doubt, any dispute, should be put in the defendant’s favour.
Having said that, I have to look at the statute to see if his 1990 conviction qualifies as a serious offence. Rape, of course, is included in the definition of serious offence. However, there is no mention of the offence of buggery. [The offence of buggery in 1990 was an offence under section 12 of the Sexual Offences Act 1956] The Crown say that there is a simple and obvious explanation for that, and that is this:  there was a change in the law in 1994. Rape was re‑defined to include non‑consensual anal intercourse and the fact is that if the defendant was now being tried for his 1990 offence he would have been charged with rape.
Mr Royce quite rightly says that there is no mention of buggery in the statute, and he quite rightly says that the statute should be strictly construed. I entirely agree with that and I do strictly construe it. I also do not approach this case on the basis of, “Well, what was the intention of Parliament?”; it must be strictly construed.
But the Crown’s case, quite simply, is this:  it is not necessary to have an interpretation section, it is not necessary to mention the offence of buggery because the offence of rape now includes non‑consensual acts of what one used to call buggery. It is plain now, and I refer to Archbold paragraph 20, 120, that the offence of buggery still exists ‑‑ there is no doubt about that at all ‑‑ but it is now only used for offences committed by a man on another man or a man on an animal.
In my view, it was not necessary for the drafter of this Act to include in his definition section non‑consensual buggery. Rape includes non‑consensual buggery. The defendant had been convicted of non‑consensual buggery, that was the conviction in 1990, and my ruling is that he does qualify for a mandatory sentence under the Crime (Sentences) Act 1997.” 
15.	Then there is a paragraph that need not be read, and then the judge said:
“My ruling, therefore, is that the defendant does qualify for a life sentence.”
16.	In 1990 the jury convicted the appellant of buggery, but there was no way of knowing if the jury were sure that the act of buggery had been committed without the complainant’s consent or that the appellant was aware that the complainant was not consenting or was reckless as to whether she consented or not.
17.	Historically it had been the practice in the 1980s to include an additional count in an indictment which enabled the jury, by their verdicts, to indicate whether they were sure that the offence of buggery had occurred without the complainant’s consent. However, in the case of R. v. Young (1990) 12 Cr.App.R.(S.) 279, this Court declared that practice to be unjustified in law because it led to the indictment including a count containing an immaterial averment, namely that the complainant in a charge of buggery had not consented. This Court, in Young’s case, held that it was wrong to leave to the jury an issue which it was not for the jury to decide.
18.	The judge who tried the appellant in 1990 applied that decision and himself decided, when considering sentence, whether the evidence had shown to the criminal standard of proof that the complainant had not consented to be buggered. The judge found that that had been  proved. It is significant that in the passage in His Honour Judge da Cunha’s sentencing remarks the judge does not seem to have considered whether the appellant knew that the complainant was not consenting or, alternatively, was reckless as to whether she consented or not. It has to be observed that as far as this Court is aware the only part of His Honour Judge de Cunha’s sentencing remarks that survive is that short passage in the judgment of this Court in 1991 which we have already cited.
19.	The appellant appealed against his sentence and this Court, on 4th July 1991, rejected a submission that the judge’s finding was against the weight of the evidence, observing that the appellant’s account of the events on the night of 23rd December 1989, which had been the relevant occasion, had been “singularly improbable”. This Court also rejected a submission that even if the complainant had not consented the sentence was manifestly excessive.
20.	The appellant was convicted of buggery, an offence which did not require the Crown to prove an absence of consent on the part of the complainant, and had been sentenced by the trial judge who had found it proved beyond a reasonable doubt that she had not consented. “Conviction” in a trial on indictment, following a plea  of not guilty, is the verdict of the jury, see Lord Diplock in R. v. Courtie [1984] A.C. 463 at page 467F to 468B.
21.	In 1994 the substantive law on buggery and rape was changed by section 142 of the Criminal Justice and Public Order Act 1994. That section substituted a new subsection (1) in the Sexual Offences Act 1956. The new section, which came into force on 3rd November 1994, reads:
“(1) It is an offence for a man to rape a woman or another man.
(2) A man commits rape if ‑‑
(a) he has sexual intercourse with a person (whether vaginal or anal) who at the time of the intercourse does not consent to it; and
(b) at the time he knows that the person does not consent to the intercourse or is reckless as to whether that person consents to it.” 
22.	It is not necessary to read subsections (3) or (4).
23.	Consequently buggery became rape if at the time of the intercourse the complainant did not consent to it. The absence of consent became a material averment. That is to say, it became an element of the offence that the Crown had to prove in order to obtain a conviction. The accused’s knowledge of that lack of consent or recklesness concerning the complainant’s lack of consent also became a material averment.
24.	In 1997 Parliament passed the Crime (Sentences) Act. We have already read section 2(1) and (2). Subsection (5) lists the offences which are, for the purposes of section 2, serious offences. They are:
“(a) an attempt to commit murder, a conspiracy to commit murder or an incitement to murder;
(b) an offence under section 4 of the Offences against the Persons Act 1861 (soliciting murder);
(c) manslaughter;
(d) an offence under section 18 of the Offences against the Person Act 1816 (wounding, or causing grievous bodily harm, with intent);
(e) rape or an attempt to commit rape;
(f) an offence under section 5 of the Sexual Offences Act 1956 (intercourse with a girl under 13);
(g) an offence under section 16 (possession of a firearm with intent to injure), section 17 (use of a firearm to resist arrest) or section 18 (carrying a firearm with criminal intent) of the Firearms Act 1968; and
(h) robbery where, at some time during the commission of the offence, the offender had in his possession a firearm or imitation firearm within the meaning of that Act.” 
25.	It would seem that all those offences are offences which carry a maximum of life imprisonment. It follows from the fact that that list includes offences against section 18 of the Offences Against the Person Act 1861 that the first of the two requirements of section 2(1) of the 1967 Act is satisfied, and Mr Royce immediately conceded that that was so. The issue is whether rape in section 2(5)(e) embraces the offence of which the appellant was convicted in 1990.
26.	The appellant does not complain of a sentence of three years’ imprisonment for the offence of which he was convicted. The appellant’s appeal against sentence is that the imposition of a mandatory life sentence on  him for a second serious offence was wrong in law for the reason that the offence of which he was convicted on 25th June 1999 was not a second serious offence because the offence of buggery of which he was convicted on 5th July 1990 was not a serious offence.
27.	The point is made by Mr Royce for the appellant in this way. On 5th July 1990 the appellant was convicted of buggery, which was then an offence which was proved if the prosecution proved anal intercourse, whether or not the complainant consented. Lack of consent was not then a material averment: see R. v. Young. Lack of consent went only to sentence, not to conviction. The 1997 Act provides that rape is a serious offence for the purpose of section 2 of the Act. In rape lack of consent is a material averment. To obtain a conviction the prosecution must prove lack of consent on the part of the complainant and, further, must prove that the accused either knew of that lack of consent or was reckless as to whether the complainant was or was not consenting.
28.	Thus the offence with which the appellant was charged and convicted in 1990 was not the same offence as that contained in section 2(5)(e) of the 1997 Act. There was a material difference between the offences. Simply because for sentence the judge was sure that the  complainant had, in 1989, not consented does not alter the fact that the definitions of the two offences were as different as were their names.
29.	Section 2 of the 1997 Act is part of a penal statute. It imposes the most severe sentence known to law if its requirements are fulfilled. Consequently it must be strictly construed.
30.	Mr Royce submitted a supplementary skeleton argument in which submissions based on articles in the European Convention of Human Rights were raised. Mr Royce no doubt would submit that the presence of those articles in that Convention underline the importance of a strict approach to this statutory provision, indeed to any penal provision. Had Parliament intended an earlier conviction for buggery to be a serious offence within 2(5), it could have said so. If this has been an oversight by the Parliamentary draftsmen, then the appellant is entitled to take advantage of it.
31.	The respondents, through Mr Chadd QC, seek to counter Mr Royce’s argument by submitting that the words “convicted” and “conviction” are equivocal. Our attention has been drawn to the word “convicted” where it appears in Stroud’s Legal Dictionary. We say that the only assistance we derive from Stroud’s Legal  Dictionary is that “convicted” can mean many different things depending upon the text in which the word appears.
32.	Mr Chadd submitted that the judge’s finding in 1990 that the complainant was not consenting, coupled with the jury’s conviction, means that the ingredients of the offence of rape as now re‑defined by the 1994 Act were present. The judge applied, in making his finding, the criminal standard of proof. The reality is that in 1990 the appellant was convicted of what has now become rape.
33.	The matter is put very succinctly in the skeleton argument submitted on behalf of the respondents in this way:
“.....the court is concerned to ascertain whether the appellant has been proved to have been ‘convicted’ of what under the 1997 Act amounts to rape, as defined by the 1994 Act ‑‑ in 1990 he was ‘convicted’ by a jury of the offence of buggery and (for the purposes of the 1997 Act) of rape, in that he was ‘convicted’ by the judge in 1990 of conduct defined in the 1994 Act as rape and rendered ‘another serious offence’ by the 1997 Act.” 
34.	In the skeleton arguments we were referred to decisions in this Court where this Court has had to look at the issue whether there existed exceptional circumstances within the meaning of section 2(2) and (3) of the 1997 Act. Our attention was drawn in the skeleton arguments to R. v. Kelly (and Sandford) (1999)  2 Cr.App.R. 36. As this Court felt in that case, we feel uncomfortable that a life sentence can be imposed for an offence under section 18 of the Offences Against the Persons Act in respect of which an experienced judge, who has heard the evidence, is of the view that three years’ imprisonment would, but for section 2, have been the appropriate sentence. The word disproportionate springs to mind.
35.	On the other side it can be said that the purpose of section 2 is to protect the public. The person sentenced to a mandatory life term will not be detained for longer than would be a proportionate sentence for the second offence if they demonstrate that they are no longer a likely threat to others, and that will be determined by a quasi judicial body which are independent of the executive and before whom the prisoner has the right to be heard.
36.	It is not necessary to say any more on the additional grounds or on that aspect of this case, save to observe that this Court has adopted a strict construction of the phrase “exceptional circumstances”. We consider that an equally strict or literal construction should be applied to the word “rape”.
37.	We accept the submissions made by Mr Royce and adopt them as our reasoning in support of our conclusion  that the provisions of section 2 have to be strictly construed. The appellant has not been convicted of any offence contained in section 2(5) of the 1997 Act. He was not convicted of such an offence in 1990, and therefore the requirements of section 2 were not satisfied. Consequently we quash the mandatory life sentence that was passed and we substitute for it a sentence of three years’ imprisonment. The other sentences will remain the same.
38.	MR ROYCE:  My Lord, there was no appeal in relation to those, and we do not advance one.