HMA v Daniel Cieslak
At the High Court in Glasgow today, 17 March 2017, Lady Scott discharged Daniel Cieslak absolutely after the accused pled guilty to the rape of a 12-year-old girl.
On making the order for absolute discharge, Lady Scott made the following statement in court:
“Daniel Cieslak, you have pled guilty to a contravention of s18 of the Sexual Offences (Scotland) Act 2009 namely the offence of the rape of a girl under the age of 13 years. You were 19 years old at the time.
On the night in question the victim, who was at that time 12 years and seven months old and her 13-year-old friend, travelled to Edinburgh to meet up with friends. They met up with others and together purchased vodka before going to the city centre.
At about 11.30pm, the group of friends arrived at McDonald’s restaurant, at the west end of Princes Street, Edinburgh. During the night the complainer was drinking vodka.
At approximately 3.30am on the Saturday morning, police arrived at the area and spoke with one of the group whose mother had reported her missing. The police were directed to the missing girl by the victim who spent some time talking to the officers.
Those police officers were looking for the missing girl and others who they thought were too young. They had no concerns about the age of the victim and did not note her details.
After about 4am you and your friend met the victim and her friend, in the nearby taxi queue. After a while you all agreed to travel to an impromptu party at the flat of your friend.
You understood from chat in the taxi that the victim was 16 years old and her friend was 17 years old. The taxi driver had the impression that the victim was about 20 years old.
Once at the flat, after some time, you paired off and you and the victim engaged in sexual intercourse.
She left the next morning. She had no concerns and there was no suggestion of her being distressed.
This statutory offence has a very wide scope; from the most serious circumstances of violent rape at one end of the spectrum, to, at the other, sexual intercourse in circumstances wholly absent of force and where as a matter of fact, but not law, there is consent.
There are therefore wide variations of culpability or blameworthiness caught by this statutory provision and consequently a wide variation in the appropriate sentence which can be applied.
The key feature of this crime, present here, is that your culpability arises under the law, as a matter of strict liability.
Where the victim is under 13 years of age she is deemed by law to be incapable of consent. Her attitude is irrelevant and under the 2009 Act there is no defence that you had reasonable grounds to believe she was above the age of consent.
The entirely legitimate purpose of this statutory offence is to protect young girls from penetrative sex and premature sexual activity, not just from predatory adult males, but also to protect them from themselves – whether they like it or not.
I have to weigh this public interest of protection on the one hand and the effect of the application of this provision in the circumstances here, in order to make what is a proportionate and just decision. The fact that the Lord Advocate decided it was in the public interest in bringing this prosecution does not limit my discretion in deciding the appropriate disposal.
It is my assessment there are a number of exceptional circumstances which apply here:
1. Although the factual absence of consent is not an ingredient of the offence, it is a material factor for the purposes of sentencing. Here the victim willingly participated in the sexual intercourse and there was, in fact, consent.
2. So too, whilst there is no defence to this offence because of strict liability, the fact is that you would have had a defence if the victim had been a few months older. The statutory offence for girls aged over 13 to 16 years provides for a defence based on reasonable grounds of belief by the accused that the victim was above the age of consent. It is clear from the agreed facts presented to me that the Crown would have been unlikely to, or unable to, exclude such a defence and they do not dispute this. Accordingly, it is very unlikely the Crown could prove a crime had the victim been over 13 years of age.
The relevant facts related to there being such reasonable grounds, and relating to sentence, include:
- The fact that all the witnesses that night were of the opinion that the victim was older than 16 years – with impressions ranging between 17 to 20 years of age given.
- In particular the assessment of the police officers who had no concerns about the victim’s age, in the context of having spoken to her at some length and at a time when they specifically looking for youths who were too young to be out and about in the streets.
- For what it is worth my impression from viewing the victim on the CCTV footage on assessment by appearance that the victim was over 16 years of age would be a reasonable one.
- The context of meeting the victim in the taxi queue at 4am, after she had purchased and drank alcohol and whilst socialising with other older teenagers.
- The fact you were told she was 16 years old.
- Her willingness to go to the flat to party and when she got there to engage in consensual sexual activity with you, in which she was an active participant.
- The absence of any suggestion the victim was distressed or concerned at any time.
3. At your detention and interview, when the issue of age was raised by police officers and they you told her age, the fact that you spontaneously became distressed – crying and holding you head in your hands – are circumstances which support the fact that your belief she was 16 was genuine.
4. You are a first offender, you are still relatively young and on the information before me there is nothing to suggest you would offend in the future.
5. I am satisfied that you have been subject to considerable pressure and distress from the burden of this prosecution over the last 19 months and by publicity about it. So much so, you have had to cease your college course and suspend plans for a university course. It was the impression of the social worker at your interview that you may need professional assistance to deal with this distress.
Your criminal culpability here is wholly restricted to the application of strict liability within this offence.
That is in marked distinction to other reported cases under this statutory provision, which have involved conduct involving assault or recklessness or force, or the absence of consent or have resulted in distress to the victim – all of which are factors which raise the need for punishment. In addition, there is no suggestion here of predatory conduct or grooming or manipulation or deception.
Absent such factors I do not consider there is any need for, or public interest in, punishment. To do so would in my view be disproportionate given the nature of the criminal culpability here.
Nor do I consider there is any basis for, or real public interest in, requiring your notification under the Sexual Offences Act 2003.
Considering all of these factors I have reached the conclusion that justice is best served in this case by taking the wholly exceptional decision not to sentence you and instead I discharge you absolutely.
As a result, the requirement of any notification does not arise under the relevant statutory provisions.”