Facing an allegation arising from an alleged incident 40 years ago is daunting. But when the law has changed several times to reflect public opinion, it is all the harder to understand for a Defendant.
The Crown had alleged that the Defendant had taken the Complainant for a birthday drink on his 15th birthday but had proceeded to get him drunk and then had penetrated him with his penis in the back of his Ford Cortina.
The Complaint said that he had a sexual interest in the Defendant and, despite him being 15 and the Defendant being 19 or 20 years old; but he claimed that he was drunk and that he was too young to consent. After that first incident, he had wanted more intercourse with the Defendant as he was not “out” and had no other sexual outlet.
The Complainant claimed to have blackmailed the Defendant into being the passive participant in five or six further acts of buggery over the following 12 months. He used the threat of telling others about the first incident to secure the Defendant’s compliance.
The Defendant’s case was that the Complainant had simply made up the entire story – including the campaign of blackmail and buggery that followed. When questioned by police, he stated that he believed that the Complainant must have been jealous of his lifestyle or had simply been a rape fantasist. He did not give evidence in his own defence at trial – risking an adverse inference but relying upon his police interview. He was, and by virtue of the acquittal, remains of good character.
In English law the term “buggery” was first used in the Buggery Act 1533, while Section 61 of the Offences against the Person Act 1861, entitled “Sodomy and Bestiality”, defined punishments for “the abominable Crime of Buggery, committed either with Mankind or with any Animal”.
Importantly, to successfully prosecute a case of buggery now, the intercourse must have been with the penis – similar to the offence of rape.
In the UK, the punishment for buggery was reduced from hanging to life imprisonment by the Offences against the Person Act 1861. As with the crime of rape, buggery required that penetration must have occurred, but ejaculation is not necessary.
In England, the first relaxation of the law came from the Wolfenden Report, published in 1957.
However, the law was not changed until 1967, when the Sexual Offences Act 1967 decriminalised consensual “homosexual acts” as long as only two men were involved, both were over 21 and the acts happened in private.
The Act concerned acts between men only, and anal sex between men and women remained an offence until 1994, when the Criminal Justice and Public Order Act 1994 decriminalised consensual anal sex between a man and a woman, if both were over 18.
It was not until 2000, with the Sexual Offences (Amendment) Act 2000, that the age of consent for anal sex was reduced to 16 for men and women.
In the instant case, following judicial clarification, the Crown only sought a conviction from the jury if they found that the Complainant had been under 16 years of age. The age of the Complainant was important to the jury’s task but consent was not as it was not a defence to the offence of buggery.
Another issue of law that arose was whether, if the jury found that the incident of penile penetration had occurred, the Defendant had or might have had an honest belief that the Complainant was 16 or older. So, whilst the Defendant denied that anything had happened, the burden of proof remained on the Crown to disprove such an honest belief. This issue arose because, in the course of cross-examination, the Complainant’s account as to his age was put in some doubt.
In R v K  3 W.L.R. 471 HL, it was held that a defendant was entitled to be acquitted where the victim was under 16 if the defendant held an honest belief that the complainant was 16 or over. It was accepted that the belief did not have to be held on reasonable grounds. However, whilst the belief did not need to be reasonable provided it was honest and genuine, the reasonableness or unreasonableness of the belief was not irrelevant. The more unreasonable the belief, the less likely it was to be accepted as genuine.
In addressing the jury, Mr Knight said, “the Devil is in the detail” as, through thorough and careful cross-examination, he had demonstrated that much of what the Complainant said was likely to be unreliable. He submitted that the Crown had failed to show that the alleged penetration was with the penis or that the Complainant was actually under 16.
Mr Knight was able, when cross-examining, to establish that the Complainant’s relationship with his family and friends had been tainted by his alcoholism and, in early life, by attitudes towards his sexuality. He put to the Complainant that he had made up this story as a way to gain sympathy from those who he had let down through his drinking and that now, after telling this story, he could not back down.
Also, in cross-examination, it was established that the Complainant had not realised, when “admitting” to the 12 month campaign against the Defendant, that he was not just admitting “shameful conduct” but criminal offences. It was only after receiving a warning against self-incrimination that he had considered this and, by then, the trial had started and it was too late to change his story.
Had the Defendant been convicted of the offence, he may have found himself on the sex offenders’ register and subject to a Sexual Harm Prevention Order. The impact on his life may have been considerable and far-reaching.
Even with no convictions, reprimands, warnings or cautions on his record, the Defendant would have no longer been “of good character” and would have faced a prison sentence.
The Defendant’s supporters at court were very pleased with the outcome and with the careful attention that had obviously been paid by the jury.
This case is one of the great many “historic” sexual offence trials currently before the criminal courts. Defending such cases can often be challenging as evidence is no longer available, alibi can be hard to demonstrate, and simple things such as layouts of roads and buildings may have changed.
In this case, there had been some evidence that, on the face of it, might have provided some degree of corroboration for the Complainant’s case. Had that not been tested in cross-examination and thereby undermined, the result may have been different.
This case also demonstrates the need for high quality representation when facing such charges. Benjamin Knight has an excellent record in defending this type of case.
Central Chambers has a criminal team with experience in defending sexual offences – both historic and recent.
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