R v Cogan, R v Leak

[1976] QB 217, [1975] 2 All ER 1059, [1975] 3 WLR 316, 61 Cr
App Rep 217, 139 JP 608
9 JUNE 1975

   LAWTON LJ read the following judgment of the court: These appellants appeal against their convictions for rape at the Teesside Crown Court on 25th October 1974.  They were sentenced by Mocatta J as follows: Cogan to two years' imprisonment and Leak to seven years' imprisonment.  The latter was also sentenced on his pleas of guilty to five years' imprisonment for attempted buggery and to three years' imprisonment for assault occasioning actual bodily harm.  These sentences were ordered to run concurrently with that for rape.  He applied for leave to appeal against all his sentences.  This court granted him leave and with the consent of his counsel the hearing of his application was treated as the hearing of his appeal against sentence.

   The indictment in the statement of offence charged Cogan with rape and Leak as 'being aider and abettor to the same offence'.  The particulars of offence against Cogan were in common form.  As against Leak they were as follows: 'at the same time and place did aid and abet counsel and procure John Rodney Cogan to commit the said offence.'

   The victim of the conduct which the prosecution submitted was rape by both appellants was Leak's wife, a slightly built young woman in her early twenties. They had been married in 1969.  There had been many quarrels and some violence. On 9th July 1974 Leak came home in the evening under the influence of alcohol. He asked his wife for money.  She refused to give him any.  Shortly afterwards he attacked her.  He knocked her down and whilst she was on the floor he kicked her many times.  She sustained numerous bruises on her back and hip.  At his trial he pleaded guilty to this assault.

   The next day Leak came home at about 6 p m with Cogan.  Both had been drinking.  Leak told his wife that Cogan wanted to have sexual intercourse with her and that he, Leak, was going to see she did.  She was frightened of him and what he might do, as well she might have been.  He made her go upstairs where he took her clothes off and lowered her onto a bed.  Cogan then came into the room.  Leak asked him twice whether he wanted sexual intercourse with her. On both occasions he said that he did not.  Leak then had sexual intercourse with her in the presence of Cogan.  When he had finished, Leak again asked Cogan if he wanted sexual intercourse with his wife.  This time Cogan said he did.  He asked Leak to leave the room but he refused to do so.  Cogan then had sexual intercourse with Mrs Leak.  Her husband watched.  Whilst all this was going on for most of the time, if not all, Mrs Leak was sobbing.  She did not struggle when Cogan was on top of her but she did try to turn away from him.  When he had finished, he left the room.  Leak then had intercourse with her again and behaved in a revolting fashion to her.  When he had finished he joined Cogan and the pair of them left the house to renew their drinking.  Mrs Leak dressed.  She went to a neighbour's house and then to the police.  The two appellants were arrested about three-quarters of an hour later.  Both made oral and written statements.  Leak did not give evidence.

   Leak's statement amounted to a confession that he had procured Cogan to have sexual intercourse with his wife.  He admitted that whilst Cogan was having sexual intercourse with her she was sobbing 'on and off not all the time'. There was ample evidence from the terms of his statement that she had not consented to Cogan having intercourse with her.  The whole tenor of this statement was that he had procured Cogan to do what he did in order to punish her for past misconduct.  He intended that she should be raped and that Cogan's body should provide the physical means to that end.

   Cogan, in his written statement, admitted that he had had sexual intercourse with Mrs Leak at Leak's suggestion and that whilst he was on top of her she had been upset and had cried.  At the trial Cogan gave evidence that he thought Mrs Leak had consented.  The basis for his belief was what he had heard from her husband about her.  The drink he had had seems to have been a reason, if not the only one, for mistaking her sobs and distress for consent.

   The trial started on 23rd October 1974.  A few days before, namely on 14th October, press publicity had been given to the fact that this court in R v Morgan [n. 1] had certified a point of law of general public importance whether in rape the defendant can properly be convicted notwithstanding that he in fact believed that the woman consented if such belief was not based on reasonable grounds and had given leave to appeal to the House of Lords.  In the course of his summing-up the trial judge stressed the need for the jury to be sure before convicting either of the defendants that the wife had not consented to sexual intercourse.  He then went on to direct them in relation to Cogan's case in accordance with the decision of this court in R v Morgan.  He prudently decided to ask the jury to make a finding whether any belief in consent which Cogan may have had was based on reasonable grounds.  The jury returned a verdict of guilty against Cogan thereby showing that they were sure the wife had not consented.  They went on to say that Cogan had believed she was consenting but that he had had no resaoanble grounds for such belief.

   1. [1975] 1 All ER 8, [1975] 2 WLR 913

   As to Leak he directed the jury that even if Cogan believed that the wife was consenting and had reasonable grounds for such a belief they would still be entitled to find Leak guilty as charged.

   Cogan's appeal against conviction was based on the ground that the decision of the House of Lords in Director of Public Prosecutions v Morgan [n. 2] applied.  It did.  There is nothing more to be said.  It was for this reason that we allowed the appeal and quashed his conviction.

   2. [1975] 2 All ER 347, [1975] 2 WLR 923

   Leak's appeal against conviction was based on the proposition that he could not be found guilty of aiding and abetting Cogan to rape his wife if Cogan was acquitted of that offence as he was deemed in law to have been when his conviction was quashed: see s 2(3) of the Criminal Appeal Act 1968.  Counsel for Leak conceded, however, that this proposition had some limitations.  The law on this topic lacks clarity as a persual of some of the textbooks shows: see Smith and Hogan, Criminal Law; Glanville Williams, Criminal Law; and Russell on Crime.  We do not consider it appropriate to review the law generally because, as was said by this court in R v Quick, R v Paddison, when considering this kind of problem.

   'The facts of each case... have to be considered and in particular what is alleged to have been done by way of aiding and abetting.'

   The only case which counsel for Leak submitted had a direct bearing on the problem of Leak's guilt was Walters v Lunt.  In that case the respondents had been charged under the Larceny Act 1916, s 33(1), with receiving from a child aged seven years, certain articles knowing them to have been stolen.  In 1951 a child under eight years was deemed in law to be incapable of committing a crime; it followed that at the time of receipt by the respondents the articles had not been stolen and that the charge had not been proved.  That case is very different from this because here one fact is clear -- the wife had been raped. Cogan had had sexual intercourse with her without her consent.  The fact that Cogan was innocent of rape because he believed that she was consenting does not affect the position that she was raped.

   Her ravishment had come about because Leak had wanted it to happen and had taken action to see that it did by persuading Cogan to use his body as the instrument for the necessary physical act.  In the language of the law the act of sexual intercourse without the wife's consent was the actus reus; it had been procured by Leak who had the appropriate mens rea, namely his intention that Cogan should have sexual intercourse with her without her consent.  In our judgment it is irrelevant that the man whom Leak had procured to do the physical act himself did not intend to have sexual intercourse with the wife without her consent.  Leak was using him as a means to procure a criminal purpose.

   Before 1861 a case such as this, pleaded as it was in the indictment, might have presented a court with problems arisig from the old distinctions between principals and accessories in felony.  Most of the old law was swept away by s 8 of the Accessories and Abettors Act 1861 and what remained, by s 1 of the Criminal Law Act 1967.  The modern law allowed Leak to be tried and punished as a principal offender.  In our judgment he could have been indicted as a principal offender.  It would have been no defence for him to submit that if Cogan was an 'innocent' agent, he was necessarily in the old terminology of the law a principal in the first degree, which was a legal impossibility as a man cannot rape his own wife during cohabitation.  The law no longer concerns itself with niceties of degrees in participation in crime; but even if it did, Leak would still be guilty.The reason a man cannot by his own physical act rape his wife during cohabitation is because the law presumes consent from the marriage ceremony: see Hale [n. 3].  There is no such presumption when a man procures a drunken friend to do the physical act for him.  Hale CJ put this case in one sentence:

   3. Pleas of the Crown, Vol 1, p 629

   'tho in marriage she hath given up her body to her husband, she is not to be by him prostituted to another'.

   Had Leak been indicted as a principal offender, the case against him would have been clear beyond argument.  Should he be allowed to go free because he was charged with 'being aider and abettor to the same offence'?  If we are right in our opinion that the wife had been raped (and no one outside a court of law would say that she had not been), then the particulars of offence accurately stated what Leak had done, namely he had procured Cogan to commit the offence. This would suffice to uphold the conviction.  We would prefer, however, to uphold it on a wider basis.  In our judgment convictions should not be upset because of mere technicalities of pleading in an indictment.  Leak knew what the case against him was and the facts in support of that case were proved.  But for the fact that the jury thought that Cogan in his intoxicated condition might have mistaken the wife's sobs and distress for expressions of her consent, no question of any kind would have arisen about the form of pleading.  By his written statement Leak virtually admitted what he had done.  As Judge Chapman said in R v Humphreys and Turner:

   'It would be anomalous if a person who admitted to a substantial part in the perpetration of a misdemeanour as aider and abettor could not be convicted on his own admission merely because the person alleged to have been aided and abetted was not or could not be convicted.' In the circumstances of this case it would be more than anomalous: it would be an affront to justice and to the common sense of ordinary folk.  It was for these reasons that we dismissed the appeal against conviction.

   The sentence passed on Leak for his part in the rape was severe; but the circumstances were horrible.  We can see nothing wrong with that sentence.  The assault on the wife the previous day had been brutal.  The doctor found no less than 13 bruises in the middle and lower region on the left hand side of her spine.  There were other bruises on her back and multiple bruises on her left hip.  These bruises were consistent with punching and kicking.  Men who use violence of this kind on their wives must expect severe sentences.  The sentence of three years was not too severe.

   The sentence of five years for attempted buggery raises a problem of principle.  The prosecution's case on the depositions was that over a period Leak had forced his wife to submit to buggery.  The medical evidence provided no support for the wife's story.  In a written statement he admitted to one incident of attempted buggery and said that this was by way of sexual experiment in the marriage bed.  He alleged that when his wife objected he desisted.  On arraigment for buggery on 3rd October 1974 he pleaded not guilty.  On 23rd October he was again arraigned on the count of buggery.  This time he pleaded not guilty to buggery but guilty to attempted buggery.  The prosecution accepted this plea.  They did so on the basis of the written statement Leak had made.  We do not consider that this statement disclosed a serious offence at all, certainly not one which merited a sentence of five years.  We decided to quash that sentence and substitute one of a day's detention.  To that extent the appeal against sentence was allowed.


   Appeal of Cogan allowed.

   Appeal of Leak against conviction dismissed.  Application by Leak for leave to appeal against sentence granted; appeal allowed; sentence varied.  Leave to appeal to the House of Lords refused but the court certified the following to be a point of law of general public importance: 'Where a man has intercourse with a woman without her consent, can a person who aids and abets that act knowing that the woman does not consent be convicted of aiding and abetting rape notwithstanding that the man is acquitted on the basis that he believed the woman was consenting when in fact she was not and is the position the same where the aider and abettor is the woman's husband?'

   10th July 1975.  The appeal committee of the House of Lords refused leave to appeal.