This advice will consider the potential criminal liability of Rory and Kasra based on the events described. Each defendant's actions will be analysed in turn to determine whether a prosecution for any offence is likely to succeed.
The Criminal Liability of Rory
Rory’s actions give rise to potential liability for burglary and voyeurism.
Burglary
Burglary is defined under section 9 of the Theft Act 1968. It can be committed in two ways. Section 9(1)(a) involves entering a building or part of a building as a trespasser with intent to steal, inflict grievous bodily harm (GBH), or cause unlawful damage. Section 9(1)(b) involves having entered as a trespasser, the defendant then steals or attempts to steal, or inflicts or attempts to inflict GBH.
The actus reus of burglary requires entry into a building as a trespasser. Rory pushes open the front door and enters Lizzie’s house. This constitutes an effective entry into a building (see R v Brown [1985]). As he did not have permission to enter, he is a trespasser (R v Collins [1973]). The mens rea for trespass is met as he would know or be reckless as to the fact he did not have permission to enter.
For a charge under s.9(1)(a), the prosecution must prove that at the moment of entry, Rory intended to commit one of the specified ulterior offences. The facts state he "has a look around". There is no evidence he intended to steal, cause damage, or inflict GBH. His subsequent actions do not clarify his initial intent. Therefore, a charge under s.9(1)(a) is unlikely to be successful due to a lack of evidence of the required ulterior intent upon entry.
For a charge under s.9(1)(b), the prosecution must prove that after entering as a trespasser, Rory actually committed or attempted to commit theft or GBH. His actions of pulling aside Lizzie's bedclothes do not amount to theft or GBH. Therefore, a charge under s.9(1)(b) would also fail.
Conclusion on Burglary: Rory should not be charged with burglary.
Voyeurism
Rory’s second act was to raise Lizzie’s nightclothes to see her naked body. This may constitute the offence of voyeurism under section 67 of the Sexual Offences Act 2003 (SOA 2003).
The actus reus of this offence is observing another person doing a private act, where the person being observed has a reasonable expectation of privacy. Lizzie was asleep in her own bed, which is clearly a private act in a private place. The mens rea requires that the defendant's purpose in observing the private act is to obtain sexual gratification. While Rory’s motive is not explicitly stated, the act of uncovering a sleeping person to view their naked body strongly suggests a sexual purpose. A court would likely infer this purpose from his conduct.
Conclusion on Voyeurism: It is highly likely that Rory would be found liable for voyeurism under s.67 SOA 2003. The CPS is advised to charge Rory with this offence.
The Criminal Liability of Kasra
Kasra’s actions give rise to potential liability for rape. Burglary will also be briefly considered.
Burglary
Kasra entered Lizzie’s house by posing as a salesman. Although Lizzie consented to his entry, it is arguable that this consent was vitiated by his deception, making him a trespasser from the moment of entry (R v Jones and Smith [1976]). However, as with Rory, for a burglary charge to succeed, Kasra must have entered with the intention to commit theft, GBH or unlawful damage (s.9(1)(a)), or have committed one of those offences inside (s.9(1)(b)). His purpose appears to have been to have sex with Lizzie, and his later actions constituted rape. Neither sexual intercourse nor rape are listed as ulterior offences for the purposes of burglary under the Theft Act 1968.
Conclusion on Burglary: Kasra is not liable for burglary.
Rape
The offence of rape is defined in section 1 of the SOA 2003. The actus reus is the penetration of the vagina, anus or mouth of another person with the defendant’s penis, where the complainant does not consent to the penetration. The facts state that Kasra "proceeds to have sexual intercourse with her", which satisfies the element of penetration.
Consent is defined in section 74 of the SOA 2003 as agreeing by choice, with the freedom and capacity to make that choice. Lizzie was "shocked and frightened", tried to leave to call the police, was pushed onto the floor, and "protest[ed] that he should stop". This demonstrates a clear and total lack of consent.
The mens rea for rape is that the defendant intentionally penetrates the complainant, and does not have a reasonable belief that the complainant consents. Kasra’s penetration was intentional. The key issue is whether he had a reasonable belief in consent. The facts state he was "encouraged by her response" when she suggested he get ready. He may use this to claim he believed she was consenting.
However, section 1(2) of the SOA 2003 states that whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps the defendant has taken to ascertain consent. Kasra took no such steps. More importantly, any initial belief he may have formed would cease to be reasonable the moment Lizzie protested that he should stop. By continuing the act despite her explicit protest, he cannot have a reasonable belief in her consent.
Conclusion on Rape: It is highly likely that Kasra would be convicted of rape. The evidence of a lack of consent is strong, and his potential defence of reasonable belief is extremely weak. The CPS is advised to charge Kasra with rape under s.1 of the SOA 2003.
References
Herring, J. (2022) Criminal Law: Text, Cases, and Materials. 10th edn. Oxford University Press.
R v Brown [1985] Crim LR 212
R v Collins [1973] QB 100
R v Jones and Smith [1976] 1 WLR 672
Sexual Offences Act 2003
Theft Act 1968
