THE QUEEN v McNally

Factual and Procedural Background

On 4 December 2012, in the Crown Court at Wood Green before Judge Patrick, the appellant, then 19 years old, pleaded guilty to six counts of assault by penetration contrary to section 2 of the Sexual Offences Act 2003. An additional allegation was ordered to remain on file. On 21 March, after receiving detailed reports, the appellant was sentenced to three years detention in a young offender institution on each count, with a three-year restraining order benefiting the complainant and her mother.

With leave of a single judge, the appellant appealed both conviction and sentence. On 11 June 2013, the court dismissed the appeal against conviction but allowed the appeal against sentence, substituting the original three-year detention with nine months detention suspended for two years, alongside a suspended sentence supervision order. The court decided to provide written reasons due to the issues raised.

The appellant, born in 2004 and living in Scotland, met the complainant, who lived in London, through an online social networking game using a male avatar named "Scott." The complainant believed she was communicating with a boy from Glasgow. Over three years, their relationship developed into a romantic and sexual one, involving online and phone conversations, webcam interactions, and eventual in-person meetings in London when the appellant was 17.

During visits, the appellant, presenting as male and wearing a strap-on dildo, engaged in sexual activities with the complainant, who believed the appellant to be male. The complainant only learned the appellant's true gender after a confrontation initiated by her mother. The complainant felt deceived and shocked, which led to a complaint to the police and subsequent investigation. The appellant admitted to some sexual acts but denied using the dildo.

The appellant's legal advisors raised grounds of appeal concerning the adequacy of advice given, the elements of the offence, and the nature of the appellant's guilty plea. The court considered these grounds in detail before dismissing the appeal against conviction and allowing the appeal against sentence.

Legal Issues Presented

1. Whether the elements of the offence of assault by penetration under section 2 of the Sexual Offences Act 2003 were made out given the appellant's deception about gender.
2. Whether the appellant received correct legal advice regarding the offence and the implications of the plea.
3. Whether the appellant's guilty plea was equivocal or made without proper understanding of the offence.
4. Whether deception as to gender can vitiate consent under the Sexual Offences Act 2003.
5. The appropriate sentence considering the appellant’s circumstances and the nature of the offence.

Arguments of the Parties

Appellant's Arguments

• The appellant's legal advisors failed to provide correct advice on key elements of the offence, affecting the validity of the guilty plea.
• Deception as to gender cannot vitiate consent, analogous to deceptions about age, marital status, wealth, or HIV status.
• The appellant’s plea was equivocal due to misunderstanding the legal elements and burden of proof.
• There were evidential issues, including equivocations in the complainant's statement that would have made conviction unsafe.

Crown's Arguments

• Deception as to gender can vitiate consent because it removes the complainant’s freedom to choose based on a fundamental misrepresentation.
• The appellant was properly advised by experienced counsel who explained the legal elements and burden of proof.
• The complainant believed she was engaging in sexual activity with a male, and this deception negated true consent.
• The evidential basis for conviction was sufficient, and the appellant’s inconsistent accounts did not undermine the prosecution case.
• The sentence should reflect the breach of trust and harm caused, but mitigation and the appellant’s circumstances warranted a reduced custodial sentence.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v McReady and Hurd [1978] 1 WLR 1376	Unsafe conviction if elements of offence not made out despite guilty plea.	Used to establish that if offence elements were not met, conviction would be quashed regardless of plea.
R v Jheeta [2007] 2 Cr App R 34	Consideration of conclusive presumptions under s. 76 of the Sexual Offences Act 2003.	Referenced to show that conclusive presumptions were not suggested to apply in this case.
R v Devonald [2008] EWCA Crim 527	Application of conclusive presumptions regarding deception and impersonation.	Noted but deemed irrelevant as conclusive presumptions were not invoked here.
R v B [2013] EWCA Crim 823	Interpretation of consent under s. 74 and limits of conclusive presumptions under s. 76.	Clarified that failure to disclose HIV status does not vitiate consent; relevant for s. 74 interpretation.
R v EB [2006] EWCA Crim 2945; [2007] 1 WLR 1567	Consent and deception relating to HIV status.	Used to reject the notion that all deceptions vitiate consent and to focus on the statutory definition of consent.
Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin)	Deception relating to condom use and its effect on consent under s. 74.	Supported the principle that deception about features of the act can vitiate consent under s. 74.
R(F) v DPP [2013] EWHC 945 (Admin)	Consent negated where penetration occurred contrary to agreed conditions.	Confirmed that deliberate violation of agreed conditions negates consent under s. 74.
R. v Emmett [1988] AC 773	Principle regarding pleas induced by fundamental mistake of law or fact.	Rejected as inapplicable to this case regarding pleas of guilty.
Revitt, Borg and Barnes v DPP [2006] EWHC 2266 (Admin)	Legal advice and understanding of offence elements affecting pleas.	Referenced concerning the issue of whether the appellant was correctly advised.
R v ZBT [2012] EWCA Crim 1727	Definition of relationships constituting positions of trust under the Sexual Offences Act 2003.	Applied to reject the proposition that the appellant was in a position of trust with the complainant.
R v B [1992] QB 591	Test for whether a defence would probably have succeeded to justify setting aside a conviction.	Applied to dismiss the appellant’s argument that the defence would likely have succeeded.

Court's Reasoning and Analysis

The court began by examining the statutory elements of the offence under section 2 of the Sexual Offences Act 2003, focusing on intentional penetration without consent and absence of reasonable belief in consent, with consent defined in section 74 as agreement by choice with freedom and capacity.

The court distinguished between evidential and conclusive presumptions of consent under sections 75 and 76, noting that conclusive presumptions were not invoked here. It analyzed relevant case law, particularly the interpretation of consent and deception under the Act, including R v B, R v EB, Assange, and R(F) v DPP, to clarify that deception about certain attributes may or may not vitiate consent.

Rejecting the appellant’s argument that deception as to gender cannot vitiate consent, the court reasoned that such deception removes the complainant’s freedom to choose based on a fundamental misrepresentation, thus negating true consent. The court emphasized a commonsense approach to "choice" and "freedom" in consent cases.

Regarding legal advice, the court found that the appellant was properly advised by experienced counsel who explained the elements of the offence and the burden of proof. The appellant’s inconsistent accounts and failure to challenge the advice or plea over time undermined claims of inadequate advice or equivocal plea.

On evidential issues, the court concluded that the complainant consistently believed she was engaging with a male, and the evidence was sufficient for conviction. The court also considered sentencing guidelines, noting that the original judge’s starting point was appropriate given breach of trust and harm but found the sentence excessive given the appellant’s circumstances and mitigation.

Consequently, the court reduced the custodial sentence to nine months suspended for two years with a supervision order, maintaining the restraining order and modifying notification requirements accordingly.

Holding and Implications

The court DISMISSED the appeal against conviction and ALLOWED the appeal against sentence.

The conviction was upheld on the basis that deception as to the appellant’s gender can vitiate consent under the Sexual Offences Act 2003, and the appellant was properly advised and understood the offence elements. The sentence was reduced to nine months detention in a young offender institution suspended for two years, with a corresponding supervision order, reflecting the appellant’s personal circumstances and mitigating factors.

This decision directly affects the parties by affirming the conviction while adjusting the custodial element of the sentence. No new legal precedent was established beyond the court’s interpretation and application of existing statutory provisions and case law.