Court of Appeal, Criminal Division
Published November 16, 2007
Attorney-General’s References (Nos 74 and 83 of 2007) (Simon Foster and Keith Fenn)
Before Lord Justice Latham, Mr Justice Stanley Burnton and Mr Justice Pitchford
Judgment October 12, 2007

A child under 13 could not give consent in law to any sexual activity. An offender’s belief in the age of the child, even if reasonably held, was irrelevant, but the apparent age of the child or ostensible consent to sexual activity could be mitigating factors for sentence.

The Court of Appeal, Criminal Division so stated when granting leave to the Attorney-General under section 36 of the Criminal Justice Act 1988 to refer to the court as unduly lenient total two-year prison sentences imposed: (i) on June 13, 2007 at Exeter Crown Court by Judge Rucker on Simon James John Foster, aged 26, on his plea of guilty to two counts of raping a child under the age of 13, contrary to section 5(1) of the Sexual Offences Act 2003, one count of assaulting a child under 13 contrary to section 6 and one count of sexual assault contrary to section 7, and (ii) on June 22, 2007 at Oxford Crown Court by Judge Hall on Keith Fenn, aged 24, on his plea of guilty to two counts of rape, contrary to section 5(1).

The complainant in the first case was a girl aged 12 and in the second a girl aged 10. Both victims gave ostensible consent.

Baroness Scotland of Asthal, QC, Attorney-General, and Mr Jonathan Laidlaw for the Attorney-General; Mr Rupert Taylor, assigned by the Registrar of Criminal Appeals, for Foster; Mr Peter du Feu, assigned by the Registrar of Criminal Appeals, for Fenn.

LORD JUSTICE LATHAM, giving the judgment of the court, said that in April 2007 the Sentencing Guidelines Council had published definitive guidelines in relation to the new offences under the Sexual Offences Act 2003.

The starting point for an offence contrary to section 5 was ten years and the sentencing range was eight to 13 years.

The offences here were absolute offences. A child under 13 could not give consent in law to any sexual activity and the offender’s belief in the age of the child, even if reasonably held, was irrelevant.

The question was the extent to which, if at all, the apparent age of the child or ostensible consent to sexual activity should be reflected in the sentence.

When considering culpability, actual consent was capable of being a mitigating factor. However, careful consideration had to be given in all cases, but particularly where there was a significant discrepancy in age, to the extent to which ostensible consent had been obtained opportunistically, or by means of coercion, which might be subtle, or exploitation, which would be particularly relevant in cases where there might have been an element of grooming. In those cases ostensible consent might well have little value as mitigation. In all cases the difference in age between the offender and the child would be of great significance.

As far as apparent age was concerned, the definitive guideline only referred to it as being capable of being a mitigating factor in the case of an offender under the age of 18, where such an offender reasonably believed the other person to be 16 or over.

However, that did not mean that a reasonable belief that the victim was 16 or over could not be a mitigating factor for a person over the age of 18 but the older the offender the less relevant a mistake as to age, even if reasonably held, would be.

Bearing mind the legislative purpose of creating the absolute offender under section 5 for victims under 13, four years should be the minimum starting point with a sentencing range of three to seven years. Their Lordships did not wish, however, to exclude the possibility of a non-custodial sentence in exceptional circumstances.

The general guidance given in R v Corran ( The Times March 8, 2005; [2005] 2 Cr App R (S) 453)) remained valuable.

In each case the sentence was unduly lenient and four years would be substituted.

Solicitors: Treasury Solicitor.

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