No right to crime

There are times when, although a case has passed routinely through the stages of plea of guilty and the imposition of a lenient sentence, counsel for the defence might nevertheless have a residual feeling of unease about the whole thing.

Nothing to be done as far as criminal law is concerned … but what about human rights law? Now there’s an idea.

Not so fast, said Lord Hoffmann in R v G [2008] UKHL 37 (18 June 2008) at 10:

“This case is another example of the regrettable tendency to try to convert the whole system of justice into questions of human rights.”

And, as Lord Mance noted (72), there had been no application in this case to vacate the plea or to stay the proceedings.

What were they talking about? Two things: whether a particular sex offence, defined in absolute terms, should have implied into it a defence of honest mistake as to the age of the victim, and whether the prosecution authorities should have chosen to allege a lesser form of the offence – ie, not rape but being a person under 18 (he was 15) having sex with a person under 13 (she was 12).

The absolute liability point was sought to be converted into a question of human rights by resort to art 6 of the ECHR, specifically the right to a fair trial and the right to be presumed innocent until proven guilty. This endeavour was unsuccessful: all the Law Lords (including Baroness Hale in that description) held that, as was well established, those rights apply to procedure, not to the substantive content of the law enacted by contracting parties to the Convention. The argument advanced for the appellant here did not concern who had the burden of proof, so did not qualify for consideration under this article.

The second point, concerning prosecutorial discretion, required some imaginative thinking by the rights lawyers: under art 8, the right to privacy, the offender should not be interfered with by the state (by being prosecuted) to an unjustified extent. Only Lords Hope and Carswell thought there was anything in this. Lord Hope at 34 said that the decision to prosecute must be necessary and proportionate, and he would have allowed the appeal; Lord Carswell agreed, 60, adding that it would be a good idea to remove the word rape from the lawyers’ vocabulary.

Baroness Hale agreed with Lord Hoffmann and Lord Mance that this was not an art 8 issue, but even if it was she would have held that the prosecutiorial decision was proportionate:

“54 … This does not in my view amount to a lack of respect for the private life of the penetrating male.”

Lord Hoffmann was just as clear, if less blunt:

“9… the case has in my opinion nothing to do with article 8 or human rights. Article 8 confers a qualified right that the state shall not interfere with what you do in your private or family life. Any interference with your conduct by the state must be necessary and proportionate for one of the purposes mentioned in article 8.2. But you either have such a right or you do not. If the state is justified in treating your conduct as unlawful, for example, because you are beating your wife or sexually abusing children, article 8 does not generate an additional right that the state shall not be too hard on you for whatever you have done because it happens to have been done at home.”

The right to privacy does not include the right to be prosecuted with restraint. The question of what the court should do when it appears to be unfair to convict an offender for the most serious of the offences available is one that can properly be addressed under the court’s inherent jurisdiction to prevent an abuse of its process. That will ultimately turn on whether the entry of the more serious conviction would bring the administration of justice into disrepute.