To: Crown Prosecution Service
From: Trainee Legal Advisor
Date: 26 May 2024
Re: Criminal Liability of Rory and Kasra
This advice will consider the potential criminal liability of Rory and Kasra arising from the events involving Lizzie. The analysis will focus on offences of burglary under the Theft Act 1968, and various sexual offences under the Sexual Offences Act 2003. Each suspect’s liability will be examined in turn.
The Liability of Rory
Rory’s conduct gives rise to potential liability for several offences: trespass with intent to commit a sexual offence, voyeurism, and secondary liability for the actions of Kasra.
Trespass and Burglary
Rory’s first act was to enter Lizzie’s house without permission. This could give rise to liability for burglary under section 9 of the Theft Act 1968, or for trespass with intent to commit a sexual offence under section 63 of the Sexual Offences Act 2003 (SOA 2003).
For a charge of burglary under s.9(1)(a) of the Theft Act 1968, the prosecution must prove that Rory entered a building as a trespasser with the intent to commit theft, inflict grievous bodily harm (GBH), or cause criminal damage. The *actus reus* requires entry into a building as a trespasser. A house is clearly a building. Rory entered when he pushed the door open and went inside (*R v Brown* [1985] Crim LR 212). He was a trespasser as he had no permission to enter, and entering in this manner goes beyond any implied licence to approach the property (*R v Jones and Smith* [1976] 1 WLR 672). The *mens rea* requires that he knew he was a trespasser (or was reckless as to this fact), and that at the time of entry he intended to commit one of the specified ulterior offences. While Rory would have known he was trespassing, the facts do not suggest he entered with the intention to steal, inflict GBH or cause damage. He simply ‘has a look around’. Without evidence of such an intention *at the moment of entry*, a charge under s.9(1)(a) would fail.
A more relevant offence might be trespass with intent to commit a sexual offence under s.63 of the SOA 2003. The *actus reus* is met, as Rory trespassed on premises. The *mens rea* requires that he intended to commit a sexual offence on the premises and knew he was trespassing. Section 63(3) lists the relevant sexual offences, which includes voyeurism under s.67. However, the same issue arises as with burglary: did Rory have the intention to commit voyeurism *at the time he entered*? The facts suggest he entered out of curiosity and only formed the intent to observe Lizzie once he found her asleep in her bed. If the intent was formed after entry, s.63 cannot apply. Therefore, both burglary and trespass with intent are unlikely to be successful charges.
Voyeurism
Rory’s conduct in Lizzie’s bedroom appears to satisfy the elements of voyeurism contrary to section 67 of the SOA 2003. The offence is committed if a person (A) observes another person (B) doing a private act, for the purpose of A obtaining sexual gratification, knowing that B does not consent to being observed for A’s sexual gratification.
The *actus reus* is observing a person doing a private act. A ‘private act’ is defined in s.68 as an act which, by its nature, is one that would not ordinarily be done in public. Being asleep in a state of undress in one’s own bedroom clearly falls within this definition. Rory observes Lizzie by pulling aside her bedclothes and raising her nightclothes to see her naked body.
The *mens rea* requires that this observation was for the purpose of obtaining sexual gratification. While Rory’s purpose is not explicitly stated, his actions of deliberately exposing Lizzie’s naked body while she is vulnerable and asleep would provide strong circumstantial evidence from which a jury could infer this purpose. Furthermore, he must know that Lizzie does not consent to being observed for his sexual gratification. As Lizzie is asleep, she is incapable of consenting, a fact of which Rory would be fully aware. Therefore, a prosecution for voyeurism under s.67 has a strong prospect of success.
Secondary Liability
The final issue concerning Rory is whether his lies to Kasra could make him an accomplice to Kasra’s subsequent rape of Lizzie. Under the principle of secondary liability, a person who aids, abets, counsels, or procures the commission of an offence is liable as a principal offender (Accessories and Abettors Act 1861, s.8). The modern law, clarified in *R v Jogee* [2016] UKSC 8, holds that the *mens rea* for secondary liability is an intention to assist or encourage the commission of the principal offence, with knowledge of the essential matters of that offence.
Rory encouraged Kasra by telling him that Lizzie was ‘always dead keen for it’. However, for liability, the prosecution must prove that Rory intended to encourage Kasra to commit rape. The essential elements of rape are sexual intercourse without consent. Rory’s statement, while a lie, suggests that Lizzie *would* consent. He did not intend for Kasra to have non-consensual intercourse; rather, he was “seeking to impress” Kasra by boasting. He lacked the crucial intention to encourage the crime of rape, as he did not have knowledge of the circumstance that Lizzie would not be consenting. His actions were reckless, but since *Jogee*, recklessness is insufficient. It is therefore highly unlikely that Rory would be found liable as a secondary party to the rape.
The Liability of Kasra
Kasra’s actions give rise to potential liability for rape and trespass with intent to commit a sexual offence.
Rape
The most serious offence for which Kasra is likely liable is the rape of Lizzie, contrary to section 1 of the SOA 2003.
The *actus reus* of rape requires (a) penile penetration of the vagina, anus or mouth of another person, where (b) that person does not consent to the penetration. The facts state Kasra had ‘sexual intercourse’ with Lizzie, which implies penile-vaginal penetration. The key element is consent. Section 74 of the SOA 2003 defines consent as agreeing by choice, and having the freedom and capacity to make that choice. Lizzie was ‘shocked and frightened’ and made ‘protestations that he should stop’. This is a clear absence of consent. Her earlier suggestion that he get ready was a ruse to escape, not an expression of free agreement.
Furthermore, the prosecution can rely on the evidential presumption under s.75. Section 75(2)(a) applies where violence is used against the complainant immediately before the act. Kasra’s act of ‘pushing her onto the hallway floor’ constitutes such violence. This creates a rebuttable presumption that Lizzie did not consent. Kasra would have to produce evidence to suggest she did consent, which is impossible given her protests.
The *mens rea* for rape is that the defendant (Kasra) does not reasonably believe that the complainant (Lizzie) consents. The test for reasonable belief is objective (*R v B* [2013] EWCA Crim 3). A jury must consider whether the belief was reasonable in all the circumstances, including any steps the defendant took to ascertain consent (s.1(2)). Kasra took no such steps. While he may have initially held a belief based on Rory’s lie, this belief could not have been reasonably held once Lizzie tried to get away, and certainly not after he used force and she verbally protested. A reasonable person would have known at that point that there was no consent. The s.75 evidential presumption also applies to the *mens rea*, creating a presumption that Kasra did not reasonably believe she consented, which he could not rebut.
Given the clear evidence of force and Lizzie’s protests, the elements of both the *actus reus* and *mens rea* of rape are satisfied. A conviction is highly probable.
Trespass with Intent to Commit a Sexual Offence
Kasra may also be liable for trespass with intent to commit a sexual offence under s.63 of the SOA 2003. He entered Lizzie’s house by deceiving her as to his identity and purpose, posing as a salesman. Where consent to entry is obtained through a fundamental deception, it is invalid, and the entrant is a trespasser (*R v Jones and Smith*). His deception as to purpose was fundamental, meaning he was a trespasser from the moment he entered. The *mens rea* requires that he intended to commit a sexual offence at the time of entry. Given that he was ‘encouraged’ by Rory’s comments and quickly suggested sex once inside, a jury could readily infer that he entered with, at the very least, a conditional intent to commit a sexual offence like rape or sexual assault should the opportunity present itself. Therefore, a charge under s.63 is also likely to succeed.
Conclusion
In summary, the Crown Prosecution Service is advised as follows:
1. **Rory** should be charged with **Voyeurism** under s.67 of the Sexual Offences Act 2003. The evidence for this offence is strong. Charges for burglary or trespass with intent are unlikely to succeed due to the difficulty in proving his intent at the point of entry. There is insufficient evidence to charge him as a secondary party to the rape committed by Kasra.
2. **Kasra** should be charged with **Rape** under s.1 of the Sexual Offences Act 2003. The evidence supporting this charge, including the use of force and Lizzie’s clear lack of consent, is very strong. A charge of **Trespass with Intent to Commit a Sexual Offence** under s.63 of the SOA 2003 should also be considered, as the evidence suggests he entered the property with the requisite criminal intent.
References
*R v B* [2013] EWCA Crim 3
*R v Brown* [1985] Crim LR 212
*R v Jogee* [2016] UKSC 8
*R v Jones and Smith* [1976] 1 WLR 672
**Legislation**
Accessories and Abettors Act 1861
Sexual Offences Act 2003
Theft Act 1968
