The Sexual Offences Act 2003 was seen as vital refreshment to its 1956 predecessor. The 2003 Act allowed the consolidation of previous amendments such as widening the differing aspects of penetration and further allowed the law to regulate so called "cyber-crimes" such as the grooming of children using the internet. This article is concerned with the Sexual Offences against children under 16, in particularly between the ages of 13 and 16 and further will investigate the relevance of the common law principle decided in The Crown v Tyrrell and whether it is still relevant today? :

" The case of Tyrrell involved an appeal against a conviction of unlawfully aiding and abetting, counselling, and procuring an offence of unlawful carnal knowledge of the appellant. Although there was not expressed statutory provision for this offence, it was implied from Section 5 of the Criminal Law Amendment Act 1885 and thus the question for the Court was one of whether the offence the appellant was convicted of could be charged at all? The Court quashed the conviction ruling that where an offence is codified for the protection of a particular section of the public (in this case girls aged under 16 years old) it is not possible to be convicted as an accessory to an offence committed against the defendant. It seems from the judgements of Lord Coleridge C.J. and Matthew J. that this decision was heavily influenced by the fact that the 1885 Act did not expressly state the offence charged, as Matthew J. stated “There is no trace in the statute of any intention to treat the woman or girl as criminal”. .

The problem that arises comes from Section 13 of the 2003 Act which states:
“A person under 18 commits an offence if he does anything which would be an offence under any of sections 9 to 12 if he were aged 18” . This at basic reading does not present any problem in its interpretation. In layman’s terms, if a person under 18 committed a crime then they would be liable for prosecution and conviction for either a custodial period of six months and/or a £5,000 fine summarily or up to five years imprisonment if tried on indictment .

A first problem arises when two children under the age of 16 become romantically involved. Consider this common situation. A boy and girl, both 14 years old, meet at school and over a period of time become a romantic couple. When they have been courting for a period of time they decide to have sexual intercourse as they feel that both they and their relationship is sufficiently mature enough to move onto what they consider is the next step of a successful relationship. They have consensual sexual intercourse and the girl’s mother finds out after the event and complains to the police who in turn arrest and charge the boy for a violation of Section 13 of the SOA 2003.
The first question that arises is:
1. If the boy is charged with sexual activity with a child under the umbrella of Section 13, should not the girl be charged as well with the same offence committed against the boy?

This would be perfectly understandable to do as prima facie; she has committed the same offence as the boy in the act of consensual sexual intercourse. This would not theoretically be caught by the Tyrrell principle as there would be two separate charges and she would not be tried as an accessory to the offence. There is a problem that arises here as Section 10 of the SOA 2003 states that causing or inciting a child to engage in sexual activity is an offence. This is caught under Section 13 and an obviously paradox is the question: “If the girl cannot be prosecuted as an accessory to a crime which is enacted for her protection then how can she be charged with inciting the boy to have sexual intercourse with her?”. The same problem arises when any of the offences within Sections 9-12. A new question poses itself in this situation, that of “which of the parties is classified as the victim?”

Further, the guidance notes upon the SOA 2003 give guidance for CPS lawyers charging this offence by stating that the decision to charge should be influenced by factors including; ages of the parties; the emotional maturity of the parties; whether they entered into a sexual relationship willingly; any coercion or corruption by a person; and the relationship between the parties and whether there was any existence of a duty of care or breach of trust . It is conceivable that in the theoretical situation posed above, the CPS would find it not in the public interest to prosecute either party for the offence..

Now let us consider a second hypothetical situation where a problem, at least in this author’s eyes, arises:
Y, a 14 year old girl, decides to dress up in revealing clothing and puts on make-up and goes into a local town with friends of a similar age and goes to a local nightclub where she meets X, a 40 year old school teacher who is also out socialising with friends. In the course of the night, they talk and dance and eventually Y persuades X that she wishes to go back to his house. X is under the impression that Y is over 18 as the nightclub only admits persons over 21 years old.
When they arrive back at X’s house they consume more alcohol and consensual sexual intercourse takes place. The couple form a relationship until Y’s mother finds out and reports X to the police who in turn arrest and charge him under Section 9 of the SOA 2003, Sexual Activity with a Child.

Victorian Britain v 21st Century Teenagers

At this stage I wish to digress slightly and compare the society of the late 19th Century Britain when Tyrrell was decided and modern Britain, in particular, the youth culture that has evolved. In modern Britain, teenagers are arguably growing mature younger, arguably due to the extent of education and both its social affects (coupled with more family disposable income) and the sphere of teaching. Teenagers are also taught about many complex subjects sooner and given more responsibility earlier (for example their chosen career depends upon their GCSE subject choices made when they are around 13 years old and further whether they wish to continue with education when they have finished schooling at 15/16)..

In late Victorian Britain, things were different. Education was developing for the masses and further the family home environment was different. Women were seen as a central role within the family unit and children of working class families rarely stayed in education for very long. Education was conducted at home mainly and people got married younger.

In modern Britain, statistics have shown that in some ways teenage life has grown worse. In a survey completed on 14,000 secondary school children across England, Scotland and Wales in 2002 by the Joseph Rowntree Foundation , researchers found that 39% of boys and 33% of girls aged 15 to 16 interviewed were regular alcohol drinkers and arguably more disturbing is that the same response was given by 9% of boys and 5% of 11 and 12-year-old girls interviewed. Furthermore, in 2002, there were 3,514 abortions carried out on girls under 16 years old . This is striking as this is just the abortion rates, it would be practically impossible to either estimate or correlate a figure of under 16 sexual activity within England and Wales.

This article does not wish to be a sociological insight into the differing social habits of teenagers in the late Victorian period and the modern day and thus I shall go back to the analysis of the law and what problem could arise.

In modern Britain, there is trend of mid-teenagers (14-16) to be more mature. High Street shops carry revealing clothing for this age group and these teenagers are arguably more socially active and some are already sexually active. If we consider the situation of X and Y above again and think about how the situation could change if Y was both sexually active and intended to have sexual intercourse with someone that night she went to the nightclub. As X is not under 16, Y cannot be charged with the offence prescribed under Section 13, thus does this mean that she is impervious to the law if she makes a conscious decision to break the law? The answer is clearly yes if the Tyrrell principle is brought into play. Section 10, under the umbrella of Section 13 does not come into action as X is not a child and thus Y did not incite a child to engage in sexual activity. So should there be a difference between inciting a child and inciting an adult?

It is in this author’s humble opinion that there should not be. Prosecutions are in place to serve as a deterrent as well as punishment for the crimes that people commit, as Ashworth states “each individual should be treated as responsible for his or her own behaviour” . As the age of criminal responsibility is 10 then the law recognises that children over this age are in some way (if somewhat limited compared to when they are when older) capable of rational and free thought, or free will. If a sexually active and mature 14 or 15 year old incites a person over the age of 18 to commit a crime detailed in the SOA 2003, then they should be prosecuted not mealy as a punishment but as a deterrent.

Of course, every case is different and some 14-15 year olds are less mature than others, and this should be bared in mind by the judiciary when deciding whether to prosecutor potential offenders. The Sexual Offences Act 2003 is in place to protect persons from sexual crimes and as such any person breaking the law enacted by this Act should be prosecuted, however, should a person be above prosecution because they are classed as a victim? It is this author’s opinion that it should be dealt with on an individual case basis whether they should, if the Courts are to do justice then they should be able to deter children within the 14-15 age brackets who pose what has sometimes be referred to as a ‘sexual honey-trap’.

Conclusion

The principle in Tyrrell seems to be in a paradox with the passing of the Sexual Offences Act 2003. In passing judgement, both Lord Coleridge C.J. and Matthew J. commented upon the 1885 Criminal Law Amendment Act being silent on the subject of whether a victim of a sexual offence could be charged. Lord Coleridge C.J. stated that “it is impossible to say that the Act, which is absolutely silent about aiding or abetting, or soliciting or inciting, can have intended that the girls for whose protection it was passed should be punishable under it for the offences committed upon themselves”. Matthews J. stated in his judgement that “There is no trace in the statute of any intention to treat the woman or girl as criminal”. This seems to suggest that if there was a provision in the 1885 Act such as Section 13 of the 2003 Act, they may have adjusted their judgement and upheld the conviction. To say that it is an offence for a child to incite another child is one that begs the question “what happens if a child incites an adult?” Without definite case law to guide this argument, it seems that the days of the Tyrrell principle are drawing to a close, especially in the light of Brown where the House of Lords deemed sadomasochistic behaviour unlawful on policy reasons even though they and others consented to the actions performed upon them. Thus, should not a teenage child be prosecuted for allowing an unlawful act to take place knowing that that act is unlawful? It is submitted that the law is in place to protect victims and punish offenders and thus the principle that the victim cannot be prosecuted is a sensible one, however, when it is the victim who instigates the offence then they should be liable for crime committed and not allowed to escape prosecution because they fall within a finite group of persons, each case and victim are different and thus a detailed investigation is needed in order to ensure that instigators are punished while the real victims are protected.
[1994] 1 A.C. 212.

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