England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM TAUNTON CROWN COURT
(HIS HONOUR JUDGE HUME-JONES)

		Royal Courts of Justice Strand, London, WC2A 2LL
		20 December 2002

Lord Justice Potter:

1. This appeal raises the question whether it is an abuse of process for the prosecution to bring and pursue a charge of indecent assault against a defendant in circumstances where the conduct upon which the charge is based is essentially that of unlawful sexual intercourse with a girl under 16, and the 12-month limitation period in respect of the latter offence has elapsed.
2. That question arose and was answered in the negative by HH Judge Hume-Jones when he refused an application made on behalf of the appellant that his trial on counts 1 to 3 of the indictment laid against him be stayed as an abuse of process. The trial took place in the Crown Court at Taunton in November 2001 upon three counts of Indecent Assault (counts 1-3) and one of Indecency with a child (count 4). The application having been refused, the trial proceeded and the appellant was convicted. On 1 November 2001 he was sentenced to concurrent terms of 18 months' imprisonment upon counts 1 and 2, and 18 months' imprisonment consecutive upon count 3. A sentence of 12 months' imprisonment was imposed upon count 4, consecutive to the other counts. The total sentence was thus one of 4 years' imprisonment. The appellant was also required to comply with the provisions of s.2 of the Sex Offenders Act 1997 (Notification to the Police) indefinitely.
3. The appellant appeals against his conviction upon counts 1-3 pursuant to the certificate of the trial judge that the case was fit for appeal. His application for leave to appeal against sentence was referred by the Registrar to the full court.
4. The short facts are as follows. The complainant, C was born on 28 September 1982; the appellant was born on 16 August 1960. Both lived in a village in Somerset and their families were close friends. The appellant began a business making horse boxes and trailers at a unit in the village rented from C's father. Shortly afterwards, C then aged 13, started working for the appellant on Saturdays and in the holidays. In March 2000, C, by now aged 17 years and 6 months, complained to the police of the appellant's conduct, which complaint gave rise to the charges at his trial. C made a formal statement on 1 August 2000. It was her complaint, and the prosecution case, that the appellant regularly had consensual sexual intercourse with her between July 1996, when she was aged 13, and September 1997, when she was aged 15. Those acts were the subject of counts 1-3 in the indictment. In addition, it was alleged that when she was aged 13, oral sexual intercourse had taken place (count 4). The defence of the appellant at trial was that none of the alleged sexual conduct ever occurred, the allegations being the product of fantasy on the part of C.
5. The judge ruled upon the abuse of process application before the jury was sworn. Following his ruling, the case proceeded without incident and the appellant was convicted on each count by a majority verdict of 10 to 2.
6. Before the judge, and in this court, the argument for the appellant ran as follows. There is a time limit in respect of prosecutions under s.6(1) of the Sexual Offences Act 1956 ("the 1956 Act") which provides that it is an offence, subject to the exceptions mentioned in s.6 (which are not relevant in this case), for a man to have unlawful sexual intercourse with a girl under the age of sixteen. S.37(1)and(2) bring into effect the provisions of Schedule 2, paragraphs 10(a) and (b) which provide that in respect of an offence under s.6, or an attempt to commit such offence: "On indictment; a prosecution may not be commenced more than twelve months after the offence charged". That being so it is submitted that, to prosecute a defendant upon charges of indecent assault in respect of conduct which amounts to the offence of unlawful sexual intercourse and lacks any aggravating or additional elements worthy of a separate charge of indecent assault, is an abuse of process, in that it amounts to a misuse of the process of the court so as to deprive the defendant of a protection provided by the law and thereby circumvents the policy and intention of Parliament to place a time bar upon stale prosecutions for unlawful sexual intercourse with girls under 16.
7. The judge was referred to two Commonwealth authorities in support of the defence submission: R v Blight 22 NZLR 837, a decision of the New Zealand Court of Appeal, and Sariswati v The Queen (1990-91) 172 CLR1, a decision of the High Court of Australia on appeal from the Supreme Court of New South Wales. The judge was not referred to any decision of this court directly concerned with the point upon an appeal against conviction, and it appears there is none. However, he was referred to observations made in the cases of R v Hinton (1995) 16 Cr App R(S) and R v Rahim C.A. 1999 (No 99/1125/24), in the course respectively of an appeal against sentence and an appeal against conviction on a different point. In both cases, the court referred without criticism or adverse comment to the practice of prosecuting a defendant for indecent assault in respect of conduct amounting to unlawful sexual intercourse where the limitation period for that offence had expired.
8. The judge ruled as follows:

"It seems to me that this is just one more of the anomalies thrown up by the legislation relating to sexual offences. There is nothing to prevent the prosecution charging indecent assault in these circumstances.

I asked why there was the statute bar in unlawful sexual intercourse and it was agreed that the purpose was to obviate the possibility of difficulties of memory loss of the obtaining of evidence. However, that applies equally to indecent assault and rape. Furthermore, nowadays many cases involving sexual offences are based on facts many years old and there is authority stating that time alone is not a ground for abuse of process.

Have the prosecution manipulated or misused the system? What is the cause of the delay here? The delay was in the complainant not reporting it, not in the prosecution failing to prosecute it.

There has been no suggestion of any prejudice to the defendant.

For all these reasons I refused the application."

9. The offence of Indecent Assault on a woman is to be found in s.14(1) of the Act, which provides that it is an offence, subject to the exception mentioned in sub-section 3 of the section (invalid marriage to a girl under the age of sixteen) for a person to make an indecent assault on a woman. Sub-section (2) provides that a girl under the age of sixteen cannot in law give any consent which would prevent an act being an assault for the purposes of s.14.
10. S.6 and s.14 are overlapping offences. Because of s.14(2), a charge of unlawful sexual intercourse with a girl under sixteen necessarily includes an allegation of indecent assault on the same girl. In such a case, where there is clear evidence of indecent assault falling short of the full offence of intercourse, the judge should leave the lesser offence to the jury: see R v McCormack [1969] 53 Cr App R 514.
11. This gives rise to an anomaly in respect of the "young man's defence" contained in s.6(3) of the Act which provides that a man is not guilty of an offence under s.6 if, being under the age of 24 and not having previously been charged with a like offence, he believes the girl to be of the age of sixteen or over, and has reasonable cause for his belief. This caused the Court to comment in McCormack at p.516:

"As has been held many times, the statutory defence now contained in section 6(3) of the Sexual Offences Act 1956 is applicable only to the full offence; and, in spite of criticisms on many occasions in this Court of that remarkable anomaly, the law was re-enacted by Parliament in the old form as recently as 1956."

12. That anomaly has recently been alleviated by the decision of the House of Lords in Regina v K [2001] UKHL 1, [2001] 3WLR 471, in which it was held that, where a girl, the subject of an indecent assault, is in fact under the age of sixteen, the presumption of mens rea requires proof of the absence of genuine belief on the part of the accused as to the age of the girl being 16 or over. In that case, Lord Bingham set out the tortuous legal history of s.14 and, at paragraphs 10 and 15 of his speech, pointed out that the anomaly created by s.6 and s.14 of the 1956 Act, was in turn a perpetuation of that created by the predecessors of those sections, namely s.5 of the Criminal Law Amendment Act 1885 and s.52 of the Offences Against the Person Act 1861: see the decision in R v Forde [1923] 2 KB 400. Lord Bingham observed:

"Asked to suggest any reason why it could rationally have been intended to provide the statutory defence where full intercourse took place and no defence based on belief as to the child's age when intercourse was charged as indecent assault, leading counsel for the Crown in the present appeal was unable to assist, as his predecessor in R v Forde had been in 1923."

In that situation, their Lordships had no hesitation in applying

"the presumption that mens rea is required in the case of all statutory crimes, a presumption operating as a constitutional principle and not easily displaced by a statutory text." (478F)

see also per Lord Steyn at paragraph 32 (484D).

Construing s.14 in that light, Lord Bingham observed at paragraph 20:

"Neither in section 14 nor elsewhere in the 1956 Act is there any express exclusion of the need to prove an absence of genuine belief on the part of a defendant as to the age of an under-age victim. Had it been intended to exclude that element of mens rea it could very conveniently have been so provided in or following subsection (2)" (481B)

13. Lord Steyn stated, at paragraph 33:

"It is now possible to face directly the question whether 14(1) makes it compellingly clear that the supplementation of the text by the presumption is ruled out … I would hold that in the present case a compellingly clear implication can only be established if the supplementation of the text by reading in words appropriate to require mens rea results in an internal inconsistency of the text … There is nothing in section 14(1) as clearly indicative of the displacement of the presumption. In these circumstances it cannot in my view be said that there is a compellingly clear implication ruling out the application of the presumption." (484F-485C)

14. The different anomaly which gives rise to the argument in this case is that, whereas there is a time-bar of 12 months upon the bringing of a prosecution for the full offence of unlawful sexual intercourse under s.6, or an attempt to commit such offence, no such limitation is imposed in respect of a charge under s.14 based on identical facts. It is quite clear from the form of Schedule 2 to the Act that this is a deliberate omission, rather than being due to any oversight in draftsmanship.
15. There are of course numerous cases of sexual abuse of children involving what might properly be regarded as consensual sexual intercourse were it not for the young age of the child. In such cases, for understandable and widely recognised reasons, a complaint by the victim is frequently not made for a number of years. In such cases, it has consequently become a not infrequent practice to charge indecent assault under s.14, thereby avoiding the 12-month restriction on prosecution for an offence under s.6. This practice has been noted without adverse comment, and indeed with implied approval, in a number of sentence appeals in this court.
16. In R v Hinton [1995] 16 Cr App R(s) 523, the defendant was charged with rape, unlawful sexual intercourse and indecent assault upon his 15 year-old stepdaughter. He had pleaded guilty to the charge of unlawful sexual intercourse, which plea the prosecution were prepared to accept. However, it was then noticed that the offence alleged in the relevant count was time-barred and a count of indecent assault was substituted to which the appellant pleaded. A not guilty verdict was entered in relation to the rape and the remaining count of indecent assault was left on the file. Lord Taylor CJ stated:

"The maximum sentence for …[unlawful sexual intercourse with a girl under the age of sixteen] … is 2 years' imprisonment. The only reason why the learned judge was able to pass a sentence of three years was because the offence charged originally was time-barred, and accordingly, there was substituted for it what might seem the lesser offence of indecent assault, rather than unlawful sexual intercourse. An offence of indecent assault, since 1985, carries a maximum sentence of 10 years. Accordingly, the learned judge's sentence was strictly lawful in terms of the maxima imposed by Parliament, but the unfairness of the situation is clear: had it not been for the time-bar, the appellant could not have been sentenced to more than two years' imprisonment. It would be unfair that he should be sentenced to more than that, simply because the case had been delayed in coming to court."

17. In R v Rahim, Turner J stated as follows:

"28. The problem which confronted the judge ultimately on sentencing was this. There was a sexual relationship which had continued between the appellant and this girl, who was at all material times under the age of sixteen, which would have carried a maximum sentence of 2 years' imprisonment had the matter been prosecuted as unlawful sexual intercourse with a girl under the age of sixteen. Because the time-bar for prosecution of offences of unlawful sexual intercourse prohibited the appellant being charged with that offence, the prosecution were obliged, if they were to prosecute at all, to charge offences of indecent assault, where the maximum sentence is one of 10 years'

29. This court, through other divisions, has frequently drawn attention to the anomaly which exists in relation to sentences for unlawful sexual intercourse being restricted to 2 years' maximum whereas in circumstances where the time-bar has operated, the maximum sentence for the only offence which can be charged in its place is that of ten years. It is only necessary to mention the case of Brough (CA transcript, 21 January 1997) to indicate the extent to which other divisions of this Court have had regard and have made adverse comment about the continuing anomaly in this respect."

18. In the earlier decision of this court in R v Quayle (1993) 14 Cr App R(S) 726 the court was concerned with an appeal against sentence in a case where, despite the fact that the prosecution was brought within the period of 12 months from the most recent of a series of offences of unlawful sexual intercourse with a girl under sixteen, the prosecution had deliberately brought charges of indecent assault because the series of offences had started when the girl was under 13 and it was considered that the maximum sentence for a s.6 offence was insufficient in the circumstances. The court, per Schiemann J observed:

"There is a specific statutory offence of having unlawful sexual intercourse with a girl between 13 and 16 and that statutory offence is tailor-made for the situation of girls between those ages who have unlawful sexual intercourse. The maximum sentence for that offence is 2 years' imprisonment. The prosecution in this case deliberately charged indecent assault, which by a quirk of Parliamentary history, had its maximum extended from 2 years to 10 years' imprisonment some years ago.

In principle, it may sound odd that the technical maximum for the touching of a girl's breast between the ages of 13 and 16 is 10 years whereas the maximum for unlawful sexual intercourse with her is 2 years' imprisonment. It is submitted that the right approach for the court, in respect of something which is, in truth, no more than unlawful sexual intercourse, is not to award more than two years if she is between the ages of 13 and 16. The court has sympathy with that submission and so far as the two counts which relate to the offences committed between the ages of 13 and 16 are concerned, we think it right to substitute sentences of two years."

19. However, on the count relating to an offence committed when the complainant was under 13, the court imposed a sentence higher than 2 years.
20. Turning to the Commonwealth authorities relied on before the judge, the case of Saraswati v The Queen 172 CLR 1 is of some interest. However, it is not directly in point for various reasons. In particular, it concerned the construction of a particular sub-section, namely s.61(2) of the Crimes Act 1900 (NSW) which appears to have been a codifying Act susceptible of harmonious construction as a whole, rather than a consolidating Act of the 'rag bag' nature of the 1956 Act (cf per Lord Bingham in Regina v K at paragraph 4).
21. S.71 of the Crimes Act 1900 (NSW) provided for an offence of unlawful carnal knowledge analogous to s.6 of the 1956 Act. S.61E(1) provided for an offence of indecent assault analogous to s.14 of the 1956 Act. S.61E(2) provided for an offence of committing an act of indecency with or towards a person under 16. S.78 provided that no prosecution for an offence under s.61E(1) or s.71 should be commenced against a person in respect of an offence alleged to have been committed against a victim who was over 14 but under 16.
22. The High Court of Australia divided three to two, the majority (Toohey, Gaudron and McHugh JJ) concluding that, on a true construction of the Act, a charge of committing an Act of indecency with or towards a person under the age of 16 could not be brought under s.61E(2) when the conduct relied on was an indecent assault for the purpose of s.61E(1) or an Act of unlawful carnal knowledge for the purpose of s.71. Toohey and McHugh JJ put their decision upon the ground (1) that the history of the legislation showed that the purpose of Parliament in enacting 61E(2) was to deal with cases which did not constitute an assault or carnal knowledge within s.61E(1) or s.71; (2) that, in dealing specifically with the commission of an act of indecency with a person under the age of 16, Parliament did not intend that the power to prosecute under that section should be used to circumvent the specific time limitation which s.78 placed on s.61E(1) and 71; and (3) upon the general ground that, when a statute deals specifically with a matter and makes it the subject of limitation, it excludes the right to use a general provision in the same statute to avoid that condition or limitation. Gaudron J put the matter on the basis that s.61E(2), which was a provision both later and more general than s.61E(1), was designed to deal with acts of indecency not involving assault.
23. The minority (Deane and Dawson JJ) held that there was no reason to construe s.61E(2) as restricted to acts of indecency not involving assault and disagreed that the Parliamentary intention of the statute was clear. Deane J observed:

"The basis of the argument that s.61E(2) should be so confined lies in the perception that the policy underlying s.78 could otherwise be frustrated at the whim of the prosecution in that conduct which amounted to indecent assault (under s.61E(1)) could be prosecuted as an act of indecency under s.61E(2) not withstanding that the person upon whom the offence was alleged to be committed was over the age of fourteen and under the age of sixteen years and that the time limit laid down by s.78 had expired. That perception derives some support from considerations of consistency in that it is difficult to envisage why the Legislature should impose a rigid time limit on the prosecution of the more serious offence of indecent assault (or carnal knowledge or attempted carnal knowledge) while allowing the same conduct to be prosecuted as the less serious offence of an act of indecency after the expiration of that time limit.

Upon analysis, however, the argument based upon an assumption of legislative consistency is far from convincing. Indeed, on any approach, it is all but impossible to discern any coherent legislative purpose underlying s.78 … One can only speculate about the rationale of that legislative intent. Perhaps it was simply that the offence of an 'act of indecency' is a less serious one. Perhaps it was that an 'act of indecency' is a comprehensive offence which does not involve the same degree of detailed particularisation as do the more serious offences of indecent assault, attempted carnal knowledge and carnal knowledge and that, for that reason, the recollection and evidence of the alleged victim may be less reliable in the case of the more serious offences. However, if considerations relating to the reliability of evidence underlay the legislative policy to be discerned in s.78, it is difficult to understand why the time limit is imposed in the case of the more serious offences only in a case where the alleged victim has reached fourteen years of age. Be that as it may, it would be to confound, rather than to vindicate, consistency of legislative policy to say that it was the legislative intent that the prosecution of an 'act of indecency' in the presence of a child should be allowed after the time limited by s.78, but only if it appeared beyond reasonable doubt that the conduct of the accused had not involved any aggravating circumstances, such as an assault on the child, which would involve the commission of some more serious offence than that with which he was charged."

24. In finding as they did, the majority of the court in Saraswati v The Queen cited the case of R v Blight, a decision of the New Zealand Court of Appeal, in which there was also a division of opinion. In that case, the majority held that, where an accused was charged and convicted on indictment for indecent assault under s.188 of the New Zealand Criminal Code Act 1893 in circumstances where it was clear that an act of sexual intercourse was relied on which could have been charged as an offence of carnal knowledge under s.196 of that act but for the fact that the time limit of one month for prosecution of an offence under s.196 had expired prior to his being charged, the conviction could not stand. The judgment of Williams J encapsulates the view of the majority as follows:

"Apart from section 196, the act of the accused would have come within the definition of an indecent assault under section 188. But section 196 takes this particular set of facts, makes them a separate crime, and provides that a prosecution shall not be instituted in respect of them unless within a limited period. It seems to me that the effect of this is to exclude the offences created by section 196 from the operation of section 188, and that if the facts show that a man has committed an offence under section 196 he must be prosecuted under that section. If the facts showed that he had committed an offence under that section, and had also committed an indecent assault under section 188 which did not amount to an offence under section 196, then the time limit would possibly not extend to such latter offence. But if the facts amount to an offence under section 196 and to nothing more, then the prosecution is in substance a prosecution for an offence under that section … If the Legislature prescribes in a later section a time limit for the prosecution of acts constituting a particular offence, that time limit ought not to be evaded by the prosecution, under an earlier section which has no time limit, of the same acts under a different name. Of course the provisions of section 188 in inflicting a greater penalty than is inflicted under section 196 are illogical, but that does not affect the question …

I think therefore, the prosecution was instituted out of time. If the above construction be not adopted the result is that no effect could be given to section 196, and that section would be practically expunged from the Act, and the protection given by the time limit would be quite illusory. The prosecution would always be commenced under section 188, which has no time limit, and under which a heavier punishment can be inflicted than under section 196. That result ought, if possible, to be avoided."

25. Denniston J, concurring, stated:

"In the present instance I think effect can be given to the language of the proviso by holding that where the deposition or evidence shows a transaction every incident and every step in which is an offence under section 196, any prosecution in respect of any such transaction, or in respect of any step, or act, or incident in such transaction, is in fact, by whatever name it may be called, a prosecution for an offence under section 196, and it would be the duty of every Magistrate to commit, every Crown Prosecutor to indict, under that section. If, accordingly, it appeared that any such step, act, or incident had occurred more than a month before such prosecution was commenced, it would be the duty of the Magistrate to refuse to commit, or of the Judge to direct an acquittal. No injury would arise from such a construction. In every case where there was evidence of an indecent act within section 188 which was or could be referable to anything other than a commission or an attempt to commit the act, or the attempt at the act, which are made offences under section 196, full effect would be given to section 188. In doubtful cases, the jury would determine whether the act proved was or was not within the words of section 196."

26. The view of the dissenting minority was encapsulated in the judgment of Stout CJ at 843:

"It might well be said that the Legislature might say that for the major or serious offence there shall be a time limit, but not for the minor offence. Can there be a difference when the punishment may be higher? They are two distinct offences, differently punished. And the discretion left to the Judges to punish will allow the Judges to treat one offence against girls between 12 and 16 as not warranting such a severe punishment as if the major offence under section 196 had been committed. Both sections may stand, and though it is illogical to allow punishment up to 7 years for a minor offence, and only up to 5 years for a major offence, that anomaly remains if the prosecution takes place in a month. It is not the question of time limit that makes the position illogical, but the terms of punishment provided for the different offences. I need not add that it is not the function of the Court to reform or modify the Statute, or to attempt to make it logical in all its parts. We must, if possible, give effect to all its provisions, and this we may in my opinion do. To say that the result may not give the protection that in one view of the Act may have been intended is not sufficient to enable the Court to nullify a section that has no time limit; but that would be the effect if the Court decided that in such a case as this the prisoner could not be indicted for indecent assault. …

If an indecent assault is always included in and inseparable from an attempt to carnally know, then it was so included in the case of Regina v Goudge (3). But this Appeal Court has held to the contrary, and by that decision this Court is bound. It could not have given the decision it gave in that case if the proposition I have last quoted is correct. The indecent assault there was just as referable to the attempt as it was here.

If this conviction is not upheld it means that prisoners who commit the full offence will escape even for indecent assault if the prosecution is not begun in a month, whilst prisoners who proceed no further than the indecent assault will be liable to punishment even if the prosecution is not begun for years afterwards. This makes the provision of our Criminal Code more illogical and absurd than to hold that the prisoner who commits the full offence is liable to conviction and punishment for indecent assault only. Further, it encourages the commission of the full offence, and leaves our girls between 12 and 16 unprotected."

27. The decision in Blight remains the law in New Zealand to this day: see R v Hibberd 2NZLR (2001) 211.
28. In arguing this appeal, Mr Meeke QC for the appellant has not sought, nor has he been in a position to derive, assistance from the decision of the House of Lords in Regina v K. He has so acknowledged because (a) prior to that decision it was long recognised that there was an anomaly in respect of the young man's defence and that it was legitimate for the prosecution to charge the offence of indecent assault in lieu of a s.6 offence so as to avoid the invocation of that defence; (b) the House of Lords did not address the argument that it involved abuse of process, though, in the result, the anomaly was removed by construing s.14 as requiring mens rea in respect of the age of the victim by application of the general and time-honoured presumption that mens rea is required in relation to the essential ingredients of a criminal offence. Nor has Mr Meeke argued that, as a matter of the statutory construction of s.14, there can be read into s.14 or elsewhere in the wording of the 1956 Act, a provision that a statutory defence arises, or a limitation upon prosecution is imposed, upon the expiry of 12 months from the date of an offence of indecent assault. In that respect, no general presumption of criminal law such as that relied upon in Regina v K is available.
29. In conducting the appeal, Mr Meeke has expressly disclaimed reliance upon ordinary principles of statutory construction as apt to restrict the ambit of s.14, limiting his argument to that of abuse of process. That being so, we do not think he can derive direct support from the decision in Saraswati, which depended entirely upon arguments of statutory construction. However the approach of the majority in the New Zealand case of Blight, in the passages from the judgment of Williams J and Denniston J which we have quoted above, lend him support. Despite the trenchant comments of Smout CJ upon the question of construction which, in his view, precluded a successful appeal in that case, the approach of the majority was to look to the reality of the offence charged and to hold that, if the act of indecent assault was either identical with the full offence of carnal knowledge or was in fact a step taken in the course of an attempt at that offence, then the time bar in respect of such offence or attempt should be applied. While purporting to be engaged in an exercise of statutory construction, it is plain that the decision depended upon the view that, essentially as a matter of policy, such a construction was necessary in order to prevent evasion of the time limit by the prosecution.
30. The question is whether this court should take the same step by treating all prosecutions for indecent assault in such circumstances as necessarily amounting to an abuse of process. We do not think it should, for the following reasons.
31. Upon any view, we do not consider that the result sought can be achieved by a restrictive construction of s.14, and Mr Meeke was right so to concede. Given the clear provision in s.14(2), which precludes the defence of consent, the substantive offence of indecent assault is plainly apt to cover the act of penile penetration involved in sexual intercourse and of the various acts of fondling and foreplay which precede it, whether or not such acts amount to an attempt at such intercourse. There is nothing in the statutory history of the offence, or the content of the 1956 Act, to require a contrary construction. Thus the overlap between s.6 and s.14 is plain and inevitable.
32. Leaving aside the question of limitation, the bringing of a prosecution and the selection of an appropriate charge lies within the discretion and the responsibility of the Crown, and, in the event of a charge being brought under one or other of ss.6 and14 , it is prima facie the duty of the Court to decide the matter according to whether or not the ingredients of the substantive offence have been proved. In a case charged under s.6, where there is doubt whether the full offence occurred, the jury may nonetheless convict of indecent assault and, in a case charged under s.14, it cannot be a defence that, in the event, intercourse took place, to which end the acts complained of were no more than steps along the way.
33. The court nonetheless reserves to itself a residual and discretionary power to stay criminal proceedings as an abuse of process, which power it will exercise in two broad categories of case: where it concludes that, by reason of a particular situation which has arisen, either the defendant cannot receive a fair trial or, regardless of that question, it would be unfair for him to be tried at all: see R v Beckford (1996) 1 Crim App R 94 at 101 and R v Feltham Magistrates ex parte Ibrahim [2001] EWHC Admin 130, [2001] 1WLR 1293 at paragraph [18]. One of the principal examples of the first category is a prosecution in which the defendant can show that on a balance of probabilities, owing to excessive delay, he will suffer prejudice to the extent that no fair trial can be held. In such circumstances the continuance of the prosecution would amount to a misuse of the process of the court. The leading authority upon that aspect of the doctrine of abuse of process is Attorney-General's Reference (No 1 of 1990) [1992] 95 Crim App R 296 in which it was made clear that stays imposed on the ground of delay should only be granted in exceptional circumstances even where such delay is not justifiable and even more rarely should a stay be imposed in the absence of any fault on the part of the complainant or the prosecution. Further, delay caused by the actions of the defendant should never be the foundation for a stay. That said, however, it is unnecessary to examine the issue of delay in this case, because there is no suggestion of deliberate or undue delay on the part of the prosecution. Nor indeed, as Mr Meeke accepts, has the situation been reached where it is not possible for the defendant to have a fair trial.
34. Mr Meeke puts the matter under the second category of case in which the court may order a stay for abuse of process. He submits that it is unfair for the defendant to be tried at all upon a charge of indecent assault in circumstances where the matters relied on amounted to no more and no less than unlawful sexual intercourse under s.6 and the time bar has expired in respect of the prosecution brought under that section. He argues that to proceed in those circumstances is an abuse of process in that it deprives, and is intended by the prosecution to deprive, the defendant of the protection of the 12-month limitation period which applies to prosecutions under s.6.
35. The yardstick which the court has adopted in relation to an alleged abuse of process put on the second basis is well established. As observed by Lord Steyn in R v Latif [1996] 2 Crim App R 92 at 101

"The law is settled. Weighing countervailing considerations of policy and justice, it is for the judge in the exercise of his discretion to decide whether there has been an abuse of process, which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed: R v Horseferry Road Magistrates Court, ex parte Bennett (1994) 98 Crim App R 114 [1994] 1AC 42 … The speeches in Bennett conclusively establish that proceedings may be stayed in the exercise of the judge's discretion, not only where a fair trial is impossible but also where it would be contrary to the public interest in the integrity of the Criminal Justice system that a trial should take place. An infinite variety of cases could arise. General guidance as to how the discretion should be exercised in particular circumstances will not be useful. But it is possible to say that in a case such as the present the judge must weigh in the balance the public interest in ensuring that those that are charged with grave crime should be tried and the competing public interest in not conveying the impression that the court will adopt the approach that the end justifies any means."

36. As observed by this court in R v Drury and others, Case No: 2000/01310Z3, 11 April 2002:

"52.While the remarks in Latif were made in the context of a case where the appellant had been lured to this country for the purposes of prosecution, they demonstrate the nature of the discretion and that its touchstone is the public interest in the integrity and proper operation of the criminal justice system, and the need to avoid any affront to the public conscience in that respect. It has been elsewhere stated that an abuse of process is "something so unfair and wrong that the court should not allow a prosecutor to proceed with what is in all other respects a fair proceeding": see DPP v Hussain, The Times, 1 June 1994."

37. The way in which the case has been put on this appeal is that the action of the prosecution in bringing a charge of indecent assault under s.14 in circumstances where the time limit for a prosecution under s.6 has expired places the case squarely within a recognised potential ground for a stay, where:

" … the prosecution have manipulated or misused the process of the court so as to deprive the defendant of a protection provided by the law … "

see R v Derby Crown Court ex p.Brooks (1985) 80 Crim App R 164 at 168 and see generally in Archbold (2003) at paras .4-54 to 4-61.

38. We do not think that that is a fair characterisation of the position in this case. Mr Meeke acknowledges that the reason for the delay in bringing the charge was not in any sense due to bad faith, fault or administrative delay on the part of the prosecution; rather was it due to the fact that the circumstances only came to the notice of the prosecuting authority upon the complaint made by C over 12 months later, following which the prosecution acted with promptitude. Thus, the only 'misuse of the process of the court' upon which reliance can be placed is the very decision to charge under s.14 on the basis of facts which did indeed constitute an offence under that section, and in respect of which there was no obstacle to the conduct of a fair trial. Since Mr Meeke does not cite any other fact or circumstance which may be said to constitute misuse of the process or to give rise to unfairness, he invites us, as indeed he recognises, to give a blanket ruling that in no case can it be appropriate, and in all cases it must amount to an abuse of process, to bring a charge of indecent assault after the expiry of 12 months in respect of facts which would justify a charge under s.6 of the 1956 Act. We decline to do so.
39. We accept that the defendant is thereby deprived of a protection provided by the law in respect of prosecutions under s.6. However, we do not accept that it arises from misuse of process by the prosecution, so much as delay on the part of the complainant. The question is therefore whether, as a general proposition, so to proceed involves an affront to the public conscience, is necessarily contrary to the public interest, or undermines the integrity of the criminal justice system. In our view the answer to that question is 'No'; it all depends upon the circumstances of the individual case. It must frequently be the position, as in this case, that the facts do not come to light until after the expiry of 12 months, upon the complaint of a victim who, free of the influence of the defendant, is able to appreciate the degree to which their relationship was an abusive one. The fact that Parliament may have thought fit to provide for a general limitation period, based, it must be assumed, on the principle that stale complaints are inherently likely to give rise to evidential difficulty, does not in our view preclude a responsible prosecutor from taking the view that, in the particular circumstances, a fair trial is possible and that it is conducive, and not inimical, to justice to bring a different charge not subject to such a period of limitation.
40. In this particular case, the appellant was a family friend of 41 who had offered part-time work to C at the weekend and had exploited this relationship over a period of 2 years when C was aged 13 to 15. Towards the end of the relationship, her willingness to have intercourse was encouraged with payment and alcohol. Acts of indecency, including oral sex also occurred which did not qualify as attempts at unlawful sexual intercourse under s.16. In these circumstances, we do not consider that for the prosecution to charge, as it did, four counts representative of what happened over the period, relying upon three occasions of sexual intercourse under counts 1-3 and an occasion of oral sex under count 4, can or should be regarded as a misuse of the process of the court or an affront to justice.
41. Nothing which we have said should be taken as an encouragement to prosecutors to bring defendants to court on charges of indecent assault in cases where, were the time bar not applicable, the charge would have been laid under s.6. While the decision to do so will depend upon all the circumstances of the case, it seems to us that the decision to prosecute should depend, not simply upon the fact that the offence or offences have not come to light till after the expiry of a period of 12 months, but upon the presence of some unusual or aggravating feature sufficient to justify the avoidance of the limitation period provided for under s.6. Equally, nothing we have said should detract from the now settled practice of this court in treating 2 years' imprisonment as the maximum sentence appropriate to a charge of indecent assault brought in circumstances where, but for the expiry of the 12-month time limit, the charge would appropriately have been laid under s.6.
42. There is also before us an application by the appellant for leave to appeal against sentence, which application was referred by the Registrar to the Full Court.
43. In passing sentence the judge referred to the overwhelming evidence of three offences of indecent assault, based on occasions of consensual sexual intercourse, and one act of gross indecency. He stated:

"The background to these offences, in my judgment, is quite horrifying. You were a person in a position of trust, a trusted friend of the parents of this 13 year old and in my judgment you corrupted that 13 year old from everything that I have heard in this court. You corrupted her for your own selfish sexual gratification and I fully accept her evidence that she had not experienced sexual intercourse before you did corrupt her.

… I have read that she worried about this and eventually … she spoke to her boyfriend, then she spoke to a counsellor or a person at school, and eventually she told her parents, and her parents went to the police. The confusion and dilemma in this young girl's mind must have been something considerable, caused by you. … I have to deal with you for what I regard as a most serious case of an older man corrupting a young girl."

44. The judge then imposed the sentences set out in paragraph 2 above. The grounds of appeal against sentence are simply that the totality of the sentences passed, namely 4 years, was excessive. In short but cogent submissions, Mr Meeke was unable to persuade us that the level of sentence on each count was inappropriate upon the appellant's conviction after trial and the judge's assessment of his conduct. Nor did Mr Meeke suggest that, in an appropriate case, consecutive sentences may not properly be passed in the case of a long and abusive relationship, so as to achieve an appropriate total sentence. Mr Meeke's principal point was that the overall picture was not such that it was necessary to render the appellant a long-term prisoner, with the consequent effect upon the time to be served in prison. We think there is force in this submission. We consider that, in all the circumstances, a sentence of 9 months' imprisonment consecutive upon count 4 would have been appropriate.
45. Accordingly, the appeal against conviction is dismissed. However, we grant the application for permission to appeal and substitute a sentence of 9 months' imprisonment for that of 12 months' imprisonment on count 4. The total sentence will therefore be one of 3 years 9 months' imprisonment and, to that extent, the appeal against sentence succeeds.