judgment

to all the law enthusiasts, boy have i got just the thing for you!

here is my judgment. i just put the finishing touches onto it. *proud*
do look through it and tell me what u think.
what i really mean is: my assignment is due on monday, so hurry up and be done editing it by saturday so that i can print it.
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R v Mary

Magistrates’ Court [2007] HC 321

Lai J

Hearing Date: 6^th November 2007

Catchwords

Human Rights- Private and Family Life- Human Rights Act 1998, Articles 8, 10, 14- Sexual Offences Act 2003, Section 5- Parental Responsibility- Social Policy- Under-aged Sexual Relations- Teenage Pregnancy- The Convention on the Rights of the Child, Article 5- Children Act 1989, Section 3.

Cases and Statutes Referred

Barnett v Chelsea and Kensington Hospital [1968] 1 All ER 1068

Price v Cromack [1975] 1 WLR 988

Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112

Sexual Offences Act 2003, Section 10

Sexual Offences (Amendment) Act 2000, Section 44 (1)

Children Act 1989, Section 3

Human Rights Act 1988, Article 8, 10, 14

The Convention on the Rights of the Child, Article 5

The Claim

Mary is being charged with causing or inciting a child to engage in sexual activity contrary to Section 10 of the Sexual Offences Act 2003

The Facts

Mary’s son Stephen was involved in a consensual sexual relationship with his classmate Jenny. They had been having sex at Mary’s house. As a result, Jenny became pregnant. Jenny’s parents were appalled to discover that their daughter was involved in a sexual relationship and that Mary had known about this and that she thought it was normal. Jenny’s parents informed the police and requested that Stephen and Mary be prosecuted. The police discovered that Mary had advised Stephen to get plenty of sexual experience before settling down and that on another occasion, she had told Stephen and Jenny, when they we kissing and cuddling on the sofa in the lounge, that they might be more comfortable upstairs. The Crown Prosecution Service decided to prosecute Mary.

Counsel

Su Min Yuen and Tan Wei Yee for the Crown Prosecution Service

Kenny Tan and Jonathan for Mary

Judgment by Lai LJ

[1] The defendant is a mother, Mary. She is being prosecuted by the Crown Prosecution Service for causing or inciting her underage son (Stephen) to engage in sexual intercourse with his underage girlfriend (Jenny) contrary to section 10 of The Sexual Offences Act 2003. These transgressions happened in her house and she was fully aware of them taking place. She has admitted to the police that she had advised her son that he should get plenty of sexual experience before getting married. She also admitted to telling her son and his girlfriend when they were kissing and cuddling on a couch in the lounge, that they might be more comfortable upstairs.

[2] We first look at the issue of consent. According to Stephen and Jenny, the sexual relationship was consensual. However, the legal age for consent is 16 years as specified by the Sexual Offences (Amendment) Act 2000, Section 44 (1). Stephen and Jenny are both 15 years of age, neither of them have achieved the legal age of consent. Thus they are minors and it is illegal for either one or both of them to engage in sexual intercourse as they are both considered incapable of informed consent. The defendant should have been well aware of this fact.

[3] By advising her son to get plenty of experience before settling down and on a separate occasion, telling Stephen and Jenny when they were kissing and cuddling on the sofa in the lounge, that they might be more comfortable upstairs, Mary was impliedly approving of their sexual relationship. She even commented that Stephen and Mary were behaving like anyone of their age would behave. Her assumption that they were taking precautions is irrelevant. More importantly Stephen and Jenny are underage and should not even be involved in a sexual relationship in the first place.

[4] The prosecution brought up Section 10 of the Sexual Offences Act 2003. According to Section 10(1)(a) of the Act, it is stated that a person aged 18 or over (A) commits an offence if:

(a) He intentionally causes or incites another person (B) to engage in an activity,

(b) The activity is sexual, and

(c) Either – (1) B is under 16 and A does not reasonable believe that B is 16 or over, or

(2) B is under 13

Mary, being the mother of a 15 year old is obviously over 18 years of age. Her actions of encouraging her son to get plenty of sexual experience and suggesting to the underage couple that they might be more comfortable upstairs was subtly telling them to go ahead and have sexual intercourse. This is further proven by her comment that she had assumed that they were taking precautions. The defense argued that according to Price v Cromack [1975] 1 WLR 988, it would not be sufficient to establish causation if Mary simply allowed Stephen to engage in sexual activity with anyone, even if she owed a duty of care in respect of Stephen or she had a right of control over Stephen.

[5] The facts of Price v Cromack [1975] 1 WLR 988 are as follows: The defendant owned a land on the bank of a stream which led to a river. He permitted polluted water from a factory nearby to be discharged onto his land. Later, he allowed the factory owners to build two lagoons on his land to contain the polluted water. The wall of the lagoon subsequently cracked and the polluted water escaped into the stream and flowed into the river. The court held in favor of the defendant, that causing must involve some activity on the part of the defendant and not mere standing by and allowing something to happen.

[6] Here, contrasting from the situation in Price v Cromack [1975] 1 WLR 988, Mary did not merely stand by and allow something to happen. She actively encouraged it to happen by advising her son to get plenty of sexual experience and also by suggesting that Jenny and Stephen might be more comfortable upstairs when they were kissing and cuddling in the lounge.

[7] The defense counsel applied the “but for” test in deciding if Jenny and Stephen would have had sexual intercourse but for Mary’s advice. They posed the question of whether we can be certain that Stephen and Jenny would not be involved in a consensual sexual relationship if the defendant had not given advice to Stephen. Their answer was no. I agree with them on this point. Even without Mary’s encouragement, they might have had sexual intercourse. However, this does not erase the fact that Mary did incite and encourage them to have a sexual relationship. The defense cited the case of Barnett v Chelsea and Kensington Hospital [1968] 1 AER 1068.

[8] It was decided in Barnett v Chelsea and Kensington Hospital [1968] 1 AER 1068 that although the Hospital in that case was negligent, there was no proof that the victims died from the hospital’s negligence and not from another cause.

[9] The defense counsel also contended the meaning of the words “sexual experience”. According to them, sexual experience did not necessarily have to be obtained through sexual intercourse. Sexual experience could also include information about sex, the risks associated with sexual activity, contraception and birth control and the methods of avoiding or deferring intercourse.

[10] I do not agree with their interpretation of the words. The Oxford Advanced Learner’s Dictionary defines the word experience to mean:

(1) the process of gaining knowledge or skill over a period of time through seeing and doing things rather than through studying.

(2) an event or activity that affects one in some way.

Thus to have sexual experience would be to see and do it, rather than through gathering information about it. Besides that, we look at the context in which the defendant uttered those words. She had advised her son to get plenty of sexual experience before settling down. It is illogical that the sexual experience she wants him to have before settling down is of the methods of avoiding or deferring intercourse. Thus I conclude that when she said “sexual experience”, what she really meant was sexual intercourse.

[11] The word “incite” was also argued by the defense counsel. They identified incite to require an element of encouragement, persuasion, demand or threats or other pressure to commit an offense which may be implied as well as expressed, subsequently establishing that the defendant’s advice was merely an expression of opinion and was insufficient to constitute incitement.

[12] I concur with their definition of incite, but I cannot agree with their claim that the defendant’s advice was merely an expression of opinion. Mary, acting in her capacity as a mother advised Stephen to have sexual experience before settling down. Stephen naturally would trust his mother’s advice as his mother was obviously more experienced in matters such as sexual experience. If Mary had simply intended for her words to be an expression of her opinion, she should have been more careful of the way she phrased her words as they may be easily misconstrued. Further, on one occasion she had suggested that Stephen and Jenny would be more comfortable upstairs when she saw them kissing and cuddling in the lounge. By her actions and words, she has gone beyond the realm of expressing her opinion and into the realm of encouragement and persuasion.

[13] The defense counsel further applied the “reasonable foresight test” to the case.

They stated that it was not reasonably foreseeable that Stephen and Jenny would have sexual intercourse when they went upstairs. They submitted that most sexual intercourse starts from kissing and cuddling, but not every kissing and cuddling session will result in sexual intercourse. The defense went on to say that Mary was merely trying to instill moral values in them when she suggested that they would be more comfortable upstairs.

[14] I agree with them to the extent that not all kissing and cuddling sessions will result in sexual intercourse. If Mary had not suggested to them that they will be more comfortable upstairs and had instead requested for them to stop, that could be construed as an attempt to instill moral values in them. However, that is not what she did. Instead, she suggested that they might be more comfortable upstairs. By suggesting that they would be more comfortable upstairs, she was giving them a green light to continue what they were doing, just in a more private setting. Teenagers are a curious lot; they are always trying new things out and are still in the process of finding their identity. Note that the defense counsel themselves also submitted an article from the Education Guardian dated 27^th September 2005 that stated that 13% of Year 9 students claim to have had sex. Another article from the same source dated 9^th February 2007 stated that Britain has the worst rate of teenage pregnancy in Europe. Therefore, even if the defendant did not intend for them to have sexual intercourse, it is reasonably foreseeable that two teenagers kissing and cuddling in a private place may end up having sexual intercourse.

[15] The prosecution counsel discussed the issue of parental responsibility. Parental responsibility is defined in Section 3 (1) of the Children Act as “all the rights, duties, powers, responsibilities and authority which, by law, a parent has in relation to a child and his property”. The prosecution counsel interpreted this to mean having the right to make important decisions about your child’s life in areas like medical treatment and education. They also interpreted it to mean that a parent has a duty to care for and protect the child. Hence they claimed that Mary has responsibilities towards Stephen and that she must exercise her rights and duties as a parent. They further claimed that Mary had been negligent in her upbringing of Stephen.

[16] I am of the opinion that Mary’s upbringing of Stephen has not been negligent, merely reckless. Mary does owe Stephen a duty of car as his mother, but she has not breached that duty of care. As a mother, she did not realize that her advice put Stephen at risk, nor did she intend any harm to befall her son. However, she was undeniably reckless in encouraging him to have underage sex. It was improbable that she did not see the risk of Jenny becoming pregnant, yet she took that risk.

[17] Here, I bring up the case of Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112. It was held in this case that giving advice and treatment to a girl under 16 years of age without her parents consent infringes the rights of the parent. Similarly, I think that Mary’s act of encouraging Stephen and Jenny to have sex has infringed the rights of Jenny’s parents.

[18] The prosecution cited that a child needs parental guidance as per Article 5 of The Convention on the Rights of the Child which encourages parents to deal with rights issues “in a manner consistent with the evolving capacities of the child”. They submitted that the law is particularly solicitous in protecting the interests of children because they are liable to be vulnerable and impressionable, lacking the maturity to weigh the longer term against the shorter, lacking the insight to know how they will react in certain situations, lacking the experience to match the probable against the possible.

[19] I am of the same mind in that respect. Stephen commenced a relationship with Jenny when he was only 14 years old and her six months younger than him. At that age of adolescence, they obviously lack maturity regarding matters such as sex. All they would know is their burgeoning sexuality and impulses that are new to them. At this age, Mary should been aware that although Stephen was maturing, he had still not achieved the age where he could assume responsibility for sexual intercourse. She should have waited until he was no longer underage before advising him to have plenty of sexual experience before settling down.

[20] The prosecution also brought up the issue of teenage pregnancies. I will not elaborate on this issue as I find the points that the prosecution rose wholly irrelevant to this case. I appreciate the social issues involved, and I agree that teenage pregnancies are a social ill. However, this case is about a woman causing or inciting a child to engage in sexual activities contrary to Section 10 of the Sexual Offences Act 2003. This case is not about the health problems associated with teenage pregnancy, nor is this a case about abortion. Instead of arguing those points, the prosecution should have argued that if Mary were to be exempted from responsibility over her incitement, this might lead to the conclusion that the courts condone such behavior and this would head an increase in teenage pregnancies.

[21] The defense counsel questioned the authority of the prosecution in prosecuting the defendant, claiming that it was a breach of Articles 8, 9, 10 and 14 of the Human Rights Act 1998.

[22] Article 8 provides for the right to respect for private and family life. It states as follows:

(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

[23] The defense counsel argued that the State should respect the defendant’s right of private life so long as she did not commit any crime or cause public disorder. The Crown Prosecution Service defended their actions by emphasizing on Article 8 (2) “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” They submit that their interference is necessary for the protection of health and morals of Stephen and Jenny. Thus they are obliged by the law to carry out their duties and prosecute Mary. I wish to add that her encouragement of Stephen’s underage sexual relationship offends the health and morals of a democratic society, justifying interference by the Crown Prosecution Service.

[24] Article 9 guarantees the freedom of thought, conscience and religion. It declares:

(1) Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

(2) Freedom to manifest one’s religion or belief shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

[25] The defense states that every family has their own way of education their children and that it is a breach of the defendant’s rights to even question the method of education that she has adopted for her son. I do not think that there has been any breach of this sort as her beliefs are subject to “such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals”. As discussed earlier, her beliefs are against the Sexual Offences Act 2003 and the Children Act 1989, and her incitement of an underage sexual relationship threatens public morals. Therefore she can lawfully be prosecuted. This does not equate to the courts meddling in her home affairs as she is free to exercise her belief as she pleases as long as she does not affect public morals.

[26] Article 10 relates to freedom of expression. It presents:

(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality if the judiciary.

[27] The defense counsel submits that if the defendant’s right to educate her son on sensitive matters such as sex is restricted, it means that parents no longer have full discretion in their children’s education. However, it was never the intention of the courts to strip parents of their parental discretions. As stated in the Article, the exercise of these freedoms carries with it duties and responsibilities. Mary cannot behave irresponsibly and rely on Article 10 to absolve her of liability. An extreme example would be that one cannot advice another to shoot somebody and later, rely on freedom of expression.

[28] Article 14 provides for the prohibition of discrimination. It asserts that the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

[29] It was claimed by the defense council to have been breached due to the discrimination of the defendant’s freedom of expression. I find this point entirely irrelevant as Mary is not being discriminated in any way.

[30] The final submission if the defense counsel was that if the defendant were to be found guilty for not providing adequate parental guidance, Jenny’s parents should be found to be equally liable. I utterly disagree with this proposition. Jenny’s parents had no idea that Jenny was involved in any form of sexual activity and consider such behavior wholly inappropriate at Jenny’s age. The fact that they were so appalled to discover that their daughter was involved in a sexual relationship that they went to the extent of informing the police and requesting that Stephen and Mary be prosecuted, shows how much they oppose the idea of underage sex. Completely unlike Mary who advised her adolescent son to get plenty of sexual experience before settling down.

[31] I do not deny that Jenny’s parents had the responsibility to know of their daughter’s whereabouts and who she spends her time with. All this while, Jenny had been with Stephen at Stephen’s mother’s house. I believe that it is a legitimate expectation for parents to possess, that their children will be looked after when they are at another parent’s house. Thus Jenny’s parents had no reason to suspect that anything illegal was afoot.

Conclusion

Mary is found guilty of causing or inciting a child to engage in sexual activity contrary to Section 10 of the Sexual Offences Act 2003. Although Mary has the discretion of educating her son in the way that she feels fit, she crossed the line when she encouraged him to have underage sex with an underage girl. I this respect, she not only caused her son to break the law, but also his girlfriend. To declare Mary innocent would be to openly condone such behavior and this would lead to a rise in various social ills such as teenage pregnancies and unprotected sex. The courts simply cannot allow that to happen. It is unfortunate that at 15 years of age, Jenny now has to bear the burden of being a pregnant teenager. Hopefully this will be a lesson to all other parents to discourage and restrain their children from having underage sex; and for minors to control their impulses.

Sentence

Mary is sentenced to 6 months imprisonment.