Tory minister faces serious assault allegations – a recap of the Sexual Offences Act 2003 and Serious Crime Act 2015

In early August, an unnamed former Conservative minister was arrested at home after allegations of rape, sexual assault, and coercive control were made against him by a parliamentary staffer. The incidents were alleged to have taken place between July 2019 and January 2020 in various London addresses. These allegations have emerged only days after a former Conservative party whip, Charlie Elphicke, was convicted on three counts of sexual assault dating from 2007 and 2016.

The elements of sexual assault, rape, and coercive control are set out below:

Sexual Assault (Sexual Offences Act 2003, section 3)

A person (A) commits an offence if

• a) they intentionally touch another person (B);
• b) the touching is sexual;
• c) B does not consent to the touching; and
• d) A does not reasonably believe that B consents

This offence covers acts against victims aged 13 or over and includes a wide spectrum of behaviour which in some circumstances can include touching that occurs on top of clothing. It can also include touching of the victim with an object.

The sentence for this offence ranges from a fine up to ten years’ imprisonment for the most serious offences.

Rape (Sexual Offences Act 2003, section 1(1))

A person (A) commits an offence if

• a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis;
• b) B does not consent to penetration; and
• c) A does not reasonably believe that B consents

The main issue surrounding rape allegations is that of consent. To determine whether A’s belief in the existence of consent is “reasonable”, the court will consider what, if any, steps A took to ascertain whether B consented or not. B can only be said to have consented if they agreed by choice and had the freedom and capacity to make that choice.

The maximum sentence for a rape conviction is life imprisonment.

Coercive Control (Serious Crime Act 2015, section 76)

A person (A) commits an offence if

• a) A repeatedly or continuously engages in behaviour towards another person (B) that is controlling or coercive;
• b) at the time of the behaviour, A and B are personally connected;
• c) the behaviour has a serious effect on B; and
• d) A knows or ought to know that the behaviour will have a serious effect on B

A and B are “personally connected” if they are in an intimate personal relationship, if they live together, are members of the same family, or if they have previously been in an intimate personal relationship with each other.

There are two ways in which A’s behaviour can be said to have a “serious effect” on B, namely if A’s behaviour:

• a) causes B to fear, on at least two occasions, that violence will be used against B; or
• b) causes B serious alarm or distress which has a substantial adverse effect on B’s usual day-to-day activities

The sentence for this offence ranges from a community order to five years’ imprisonment.

Bail

After his interview, the former minister was bailed to attend a London police station later that month.

A number of things could happen when a suspect returns to answer police bail, including:

1. No further action could be taken and this would therefore be the end of the matter unless new evidence emerges at a later date.
2. The suspect could be further bailed to allow for further investigation.
3. The police could conduct a further interview if they felt that new evidence has created the need for further questions to be put to the suspect.
4. The suspect could be charged and either remanded in police custody to attend court at the next available date, or bailed to attend court at a later date.

Released Under Investigation

Another option the police may consider is to release a suspect under investigation. This is a relatively new provision as the provisions on police bail have changed and ordinarily, the police would only be able to bail a person for 28 days unless they seek an extension at the Magistrates’ Court.

However, by releasing suspects under investigation, the police cannot impose bail conditions on them as they are not technically on bail. If the police requires a suspect to attend the police station for a re-interview, or to be charged, they may re-arrest the suspect or potentially send them a summons to attend court on a future date.

For serious offences, the police may decide to send the case to the Crown Prosecution Service to obtain advice and authority on whether to formally charge the suspect. When making the charging decision, the Crown Prosecution Service will apply the two stage test below:

1. Does the evidence provide a realistic prospect of conviction? That means, having heard the evidence, is a court more likely than not to find the defendant guilty?
2. Is it in the public interest to prosecute? The CPS will consider how serious the offence is, the harm caused to the victim, the impact on communities and whether prosecution is a proportionate response.

There are currently calls for this minister to be named, however, anonymity for suspects is usually preserved when a criminal investigation is still ongoing. This does not always apply to suspects facing allegations of a sexual nature so anonymity may not always be preserved before charges are brought. If charged, the former minister’s anonymity would fall away.

You can read more about a suspect’s right to privacy during ongoing criminal investigations at our blog.

If you need advice in relation to allegations of this nature, call one of our specialist Criminal Defence lawyers on 0330 822 3451 or request a call back online.