England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT CARLISLE
HHJ SLINGER QC AND A JURY

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/11/2005

Mr Justice Calvert Smith :

1. On 7^th April 2005 at Carlisle Crown Court this appellant was convicted of an offence of indecent assault. The verdict was an alternative verdict, the original count having alleged rape. He was acquitted altogether of 2 further counts of rape and 3 of indecent assault. He appeals against conviction with leave of the single judge. The complainant in all six counts was the daughter of the appellant's former partner. Following her parents' separation the appellant had started up a relationship with her mother. The appellant had moved into the family home when the complainant was 12 or 13 years old. The appellant was said to have indecently assaulted her on a number of occasions by forcing her to give him oral sex (counts 4, 5 and 6). This was said to have happened on at least ten or eleven occasions but the charges formed specimen counts. Four days after the first indecent assault the appellant was said to have raped the complainant (count 1). The appellant was 14 years and six months old at the time. This was said to have happened on a number of other occasions but the other charges formed specimen counts (counts 5 and 6). Several years later, following the appellant's separation from the complainant's mother, the complainant made the allegations to her mother who then informed the police.
2. The appellant did not deny having sexual intercourse per vaginam with the complainant when she was 14 but claimed that it had been with her consent. It is clear from the jury's verdict on this and the other counts that they accepted that his account of this charge and the other charges was or may have been true.
3. The Sexual Offences Act 1956 (the Act) under which all the charges in this case were brought has been repealed and replaced by the Sexual Offences Act 2003 which came into force on 1^st April 2004. The 2003 Act is not retrospective. Sexual offences committed before that date will continue to be dealt with under the old law. For reasons which are well-known alleged sexual offences often come before the courts many years after their commission. In this case the conduct alleged had occurred between 1998 and 2001.
4. It is settled law that the act of intercourse is sufficient to amount to an indecent assault under section 14(1) Sexual Offences Act 1956 - McCormack 53 Cr App R 514. By section 14 (2) consent is not a defence to such a charge when the victim is under 16. It is equally clear that an alternative verdict of indecent assault is available on a charge of rape – Hodgson (1973) 57 Cr App R 502.
5. By section 6(1) of the Act "it is an offence… for a man to have unlawful sexual intercourse with a girl ... under the age of 16". Paragraph 10(a) of Schedule 2 of the Act, which is given effect by section 37 of the Act provides that, with respect to such an offence, "a prosecution may not be commenced more than 12 months after the offence charged." There is no time limit on prosecution of the equivalent offence in the Sexual Offences Act 2003 – Section 9(1) & (2)(a).
6. Until recently it had been the practice for many years for prosecutors to prosecute defendants under section 14 in cases in which the time limit for a prosecution under section 6(1) had been exceeded and in which the prosecutor believed the public interest would be served by a prosecution. The practice had had at least the implied approval of this court. In Hinton (1995) 16 Cr App R (S) 523 the defendant had pleaded guilty to indecent assault on his 15 year old stepdaughter. The reason for the charge being under section 14 was that the time limit for prosecution under section 6 had expired. The sentence exceeded the maximum for the section 6 offence. The Court reduced the sentence since the maximum sentence for an offence under section 6 was 2 years whereas the maximum sentence for indecent assault was 10 years. (The maximum sentence for an offence under the new section 9 Sexual Offences Act 2003 is 14 years.) In that case the defendant had originally been charged with a section 6 offence. When it was discovered that that offence was time-barred the charge under section 14 was substituted. In Iles [1998] 2 Cr App R (S) 63 and Figg [2004] 1 CAR (S) 409 the question of sentence in this type of case was revisited without any suggestion that the course adopted by the Crown of charging section 14 offences in suitable cases when the time limit in respect of the section 6 offence had expired was objectionable either in law or on grounds of public policy. The point was taken for the first time in Jones [2003] 2 CAR 8 134. It was rejected by the Court of Appeal.
7. However the practice has recently been brought to an end as the result of the House of Lords decision in R v J (2005) 1 AC 562; [2004] 3 WLR 1019 in which the majority clearly ruled that to charge an offence under section 14 when the facts of the case supported a section 6 offence offended against the limitation period in Schedule 2 paragraph 10(a). In that case a 35-37 year old man had repeatedly abused a position of trust with a 13-14 year old girl. Unsurprisingly therefore a majority of their Lordships expressed the view either that the prosecutor had commenced the proceedings in what he believed to be the public interest or (Lord Bingham at para 14) that the decision to do so was one "which the general public would applaud".
8. The present case came before the Carlisle Crown Court after the decision in J in which the speeches were delivered on 14^th October 2004.
9. At the beginning of the trial consideration was given to the possibility of adding a count of indecent assault to cover the admitted conduct of the accused of having vaginal intercourse with the 13 year old girl. After discussions between counsel it was concluded that the decision in J precluded the addition of such a count. (This conclusion has since been confirmed by the decision of this court in R v WR EWCA Crim 1907 (Judgment 11^th July 2005) to which our attention has been drawn by counsel since the hearing.) The trial judge then indicated that at some stage he would wish to hear argument on the possibility of the addition of a separate count or of an alternative verdict at a later stage.
10. On the second day of the trial the judge heard argument and ruled that the alternative verdict of indecent assault could be left on a charge of rape. In his ruling he stated (as transcribed):

"Historically, when the issue had been one of consent in a rape charge, it had always been accepted that if a girl were under the age of sixteen, and a jury were to find not guilty of rape on the issue of consent, it was open to a jury – if it accepted that the intercourse had taken place, to find on an alternative verdict a defendant guilty of indecent assault. The issue now is whether that remains still open to the jury. Until the case of R v J, [2004] 3 WLR 1019 – until the decision of the House of Lords in the case, no-one had considered that there might be a problem. But, it is submitted by Mr Hoare – to whom I am grateful for his skeleton argument and for his oral submissions – it is submitted that there had been a complete sea change as a result of the case of J. Such a sea change, which he submitted, might be thought to have resulted in irrational and incoherent decisions which might bring the law into disrepute, and adopting the view of Baroness Hale in that case the position might well be undeserved, But nonetheless technically correct, and his submission is this.

That when the matters, which are now admitted by the defendant, consist of unlawful sexual intercourse, provided that the case was brought outside the time limit for a proper prosecution for that offence, it is no longer open to the jury on the facts of unlawful sexual intercourse to convict of indecent assault. J, he says, now will affect a sea change, both procedurally and substantively, in the time honoured way in which these matters have been dealt with.

The facts of J were effectively these. That there had had been consensual sexual intercourse between a seventeen year old girl. Sorry, a seventeen year old complainant alleged that between the ages of thirteen and fifteen, she had had consensual sexual intercourse with the defendant. He had denied that but was convicted. But, submitted – at various stages both before the trial judge and at various stages of appeal – that because the prosecution had been out of time for bringing the charges of unlawful sexual intercourse, that had deliberately chosen to charge on the basis of indecent assault, it was an abuse of process for the matter to be allowed to continue. The abuse of process argument went before the trial judge and the Court of Appeal, but no doubt at the prodding of the House of Lords, the matter was slightly altered in the sense that what their lordships really considered was whether the wording of the statute allowed what had in fact happened. So, reflecting again, what had happened was this. The prosecution would have been for unlawful sexual intercourse had it been done timeously. It was too late, and quite openly the prosecution then sought to proceed by way of charges of indecent assault and made it quite clear that that was what they were going to do. And indeed, it followed a line of cases which had come before the Appeal Court, not on that point, but on the question of the sentencing which was appropriate.

The House of Lords found that where the statutory provision as here, in relation to time limits, was clear and unambiguous, the court could not decline to give effect to it on the grounds that the rationale here of the time limits might have been anachronistic, discredited or unconvincing. That Parliament must have decided there was a reason for a time limit, Parliament had not altered it and that accordingly, when the only evidence of sexual intercourse with a girl under sixteen was relied upon, the defendant could not be prosecuted for indecent assault after twelve months had elapsed. And in effect, Mr Hoare now says well that's the situation on the facts. The prosecution on this charge of rape could not have put an alternative matter of unlawful sexual intercourse, and therefore it follows from that indecent assault cannot follow. It is really an attractive argument, but one which I do not accept.

J was concerned with specific facts as to the basis upon which the prosecution was launched. This is a case of rape. It's a case of rape and where the issue – in terms of the time when the girl was under sixteen – the issue is one of consent in matters where the jury finds that matter occur below the age of sixteen, the issue is one of consent. It is not a case where a procedural device has been adopted to get round a time limit. There is no time limit in relation to rape and it is my judgment that the Crown is still entitled to ask the jury to consider alternative verdicts of indecent assault."

11. The stark issue for us therefore is whether the decision in J means that there are no circumstances in which a defendant who has, before 1 May 2004, had consensual intercourse with a girl under 16, can be convicted of an offence of indecent assault unless proceedings are started within twelve months of the alleged offence. On behalf of the appellant Mr Hoare has submitted that that is the only logical conclusion to be drawn from the speeches of the majority. On behalf of the respondent Mr Evans has submitted:

i) That J was dealing with a particular situation and the plain words of the schedule.

ii) That Lord Bingham in particular left open the question of alternative verdicts albeit in the context of such verdicts as are provided for within the Act itself rather than those which are the result of the operation of Section 6(3) of the Criminal Law Act 1967 to which no reference was made in any of the speeches.

12. Does the decision of the judge, at the instance of either prosecution or defence or on his own initiative, to leave the possibility of an alternative verdict of indecent assault to a jury, or the decision of a defendant to plead guilty to such a lesser charge which is accepted by the prosecution and the court, infringe the principle of statutory construction so clearly stated by the majority in J? In McCormack (supra) the Court ruled that the decision whether to leave an alternative verdict is a matter for the trial judge's discretion. In his judgment at page 513 Fenton Atkinson LJ said this:

"The view this court had formed is that the learned Deputy Chairman did have a discretion in the matter. Cases vary so infinitely that one can well envisage a case where the possibility of conviction of some lesser offence had been completely ignored by both prosecution and defence – it may be that the defendant has never had occasion to deal with the matter, has lost a chance of calling some evidence to cover or guard against the possibility of conviction of that lesser offence – and in such case, where there might well be prejudice to a defendant, it seems to this Court there must be a discretion in the trial judge whether or not to leave the lesser offence to the jury."

13. There are two ways in which the question might be answered in the affirmative. One would be if the words "commence proceedings" are apt to cover the situation in which an alternative verdict is returned on a charge which was not brought by the prosecution and indeed was a verdict which they had sought to avoid.
14. Although the House of Lords in J was concerned with the institution of proceedings rather than the question of alternative verdicts, there are references in some of the speeches to this issue.
15. At paragraph 23 Lord Bingham said:

"In the case of incest by a man, prohibited by section 10, para. 14(a) of Sch 2 provided that the jury might, as an alternative verdict, find the accused guilty of intercourse with a girl under 13 (contrary to section 5) or intercourse with a girl between 13 and 16 (contrary to section 6)…..I incline to the view that an alternative verdict under s.6 in this context was subject to no time limit: the s.10 offence itself was not time-limited: nor was the section 5 offence; there was no repetition of the s.6 time limit; and the requirement for the Director's consent could have been expected to ensure that s.10 would not be used as a means for circumventing the time limit applicable to prosecutions under 6."

16. Lord Clyde at para 43 specifically excluded alternative verdicts from consideration.

"The present case however is not concerned with problems of alternative verdicts."

17. Lords Steyn and Rodger did not specifically mention the issue. Lord Rodger referred to the submissions of counsel then instructed for the Crown – para 65 -

"Deploying his learning and experience, Mr Perry held up the prospect of all kinds of difficulties that would, he said, arise if your Lordships were to interpret the Act in this way. I am prepared to accept that there may indeed be some initial difficulties."

18. There is no doubt, though she did not mention it specifically, what the view of the 5^th (dissenting) Law Lord Baroness Hale would have been since she saw nothing wrong with the institution of proceedings for the offence of indecent assault.
19. An authority which was cited to the House and which bears on the current point is Cotton (1896) 60 J.P.824. In that case the Crown sought to persuade the trial judge to leave an alternative verdict of unlawful sexual intercourse (then Section 5 of the Criminal Law Amendment Act 1885) to the jury when proceedings for that offence would have been time-barred. The judge refused the application. In the course of his judgment he said:

"The conclusion I have come to is that you cannot go on with the charge under section 5, more that three months having elapsed since the last commission of the offence. In substance, if this could be done, by shaping your charge as a charge of rape, you could always evade the statutory limit of time. In a case such as this, it would be the more reasonable construction of the sections to hold that the time must be considered as the essence of the charge. In substance, an indictment of rape under circumstances such as these must be treated as a charge of the lesser offence".

20. Lord Bingham (at para 19) in J expressed doubts as to the reasoning in that case.

"The very brief report makes no reference to indecent assault, of which it was also open to the jury to convict under s.9. I would hesitate to accept all the reasoning of the learned Baron."

We share those doubts.

21. In our judgment, whatever the situation which may have applied in the late nineteenth century the reasoning by today's standards is indeed faulty. It would be a clear breach of the Code for Crown Prosecutors to bring a charge against a person against whom there was no evidence whatever of rape (in particular of lack of consent) in order to circumvent a time limit. It would also amount to a clear abuse of the process of the court. A dismissal hearing would dispose of the charge if such a charge was brought.
22. The burden of their Lordships' reasoning is to outlaw the bringing of proceedings because to do so would be to flout the will of Parliament and not because it would amount to an abuse of the court's process. Lord Bingham makes this clear at para 14.

"The Court of Appeal was quite right, in my respectful opinion, to hold that the conduct of the prosecution in this case did not fall squarely within the category of abuse of the process of the court stigmatised by Sir Roger Ormrod, delivering the judgment of Lord Lane C.J. and himself, R. v Derby Crown Court, Ex p. Brooks (1984) 80 Cr. App. R. 164, 168-169. Nor was it within that considered by the House in R. v Horseferry Road Magistrates' Court, Ex p. Bennett (1994) 98 Cr. App. R 114, [1994] 1 AC 42. As Mr Meeke Q.C., for J, roundly acknowledged, the prosecution had not been guilty of any devious, underhand or manipulative conduct. They had not sought to take unfair advantage of a technicality or to prejudice the conduct of the defence in any improper way. The delay in prosecuting J, in no way the fault of the prosecution, learning of serious criminal conduct when it was too late to prosecute under s.6, sought to discharge its public duty by prosecuting under s.14. It was a decision which the general public would applaud."

Lord Steyn does not rule finally on the point. At para 38:

"Although this conclusion is sufficient to dispose of the appeal I will also consider the position under the common law. The present case is not easily accommodated under any of the traditional categories of abuse of process. It is not profitable to try to analyse it by reference to dicta about wholly different categories of abuse of process. On the other hand, it must be borne in mind that the category of cases in which the abuse of process principles can be applied are not closed: R.v Latif [1996] 2 Cr App R 92 100-101, [1996] 1 WLR 104, 112-113. In any event, this is pre-eminently a corner of the law which must be considered from the point of view of legal principle."

Nor does Lord Clyde. At para 49:

"The case does not fall readily into the established categories of abuse but the concept of abuse may defy exhaustive definition. What the prosecution did here, albeit with good intention and without malice or dishonesty, was to cut across the intention of Parliament and in particular the provision of a protection for a person against whom a particular offence had been alleged. The substance of the argument on abuse is that the prosecutor should not be entitled to circumvent that protection by resorting to another offence which is less suited to the facts of the case. In my view it can at least be argued that it would be something so wrong as to make it proper for a court to refuse to allow a prosecution to proceed on such a course. The essence of the wrong is an illegality which in turn is based upon a misconstruction of the Act. While the label of abuse may not be appropriate for such a situation the illegality of the course would justify the intervention of the court. At the heart of the matter is the proper understanding of the relationship between the two statutory provisions. The two lines of approach may eventually turn out to be different ways of viewing the same point. But they both lead to the same result. "

Lord Rodger seems to incline to the opposite view. At para 61:

"In the court below, and again in this House, Mr Meeke Q.C. argued that bringing the prosecution under s.14, in order to avoid the time-bar applying to s.6, amounted to an abuse of process on the part of the Crown. The argument was rejected in the courts below. It seems to me that if, on a proper construction of s.14 in the context of the 1956 Act as a whole, it was open to the Crown to prosecute the appellant under s.14, then there can have been no abuse of process. But, equally, if on a proper construction of the legislation, it was not open to the Crown to prosecute the appellant under s.14, the appeal must succeed. The critical question is one of the construction of the Act. It appears that counsel for the appellant veered away from that approach because of the rag-bag nature of the 1956 Act as described by my noble and learned friend Lord Bingham of Cornhill, in R. v K [2002] 1 Cr. App. R. 121, [2002] 1 AC 462, para. 4. Counsel considered that, since the 1956 Act disclosed no single, coherent legislative scheme, one could not argue that s.14 must be construed and applied in a way that respected the time-bar applying to s.6 offences. The fact that the 1956 Act is not by any means entirely coherent is not, however, a reason for the courts to abandon their usual approach to interpretation and to construe its provisions in isolation, as if they had no bearing on one another "

Of course Baroness Hale is clear that it was not an abuse. At para 81.

"In my view, the countervailing considerations of policy and justice did not require the judge to stay the proceedings as an abuse of process and he was entirely justified in refusing to do so. The public conscience would be more affronted by the prohibition of prosecution for offences which have undoubtedly been committed. Although the categories of abuse of process cannot be closed, it would be a misuse of principle and language to call what happened in this case an abuse."

In our judgment the ratio decidendi is clearly based on the words of the statute and the clear parliamentary intention behind them.

23. There are many ways in which the question of lesser verdict may arise. In the context of the statutory prohibition on the commencement of proceedings it may be helpful to describe some of them.

a. The prosecution may bring a charge for the lesser offence.

b. The defence may ask for a count alleging the lesser offence to be added to the indictment.

c. The judge may of his own motion order a count to be added to the indictment.

d. Without the addition of a further count-

i. The prosecution - at any stage of the case up to the close of all the evidence – may wish to leave the possibility of a verdict of guilty of a lesser offence to the jury.

ii. The defence may do likewise. On both the above the final decision lies with the judge.

iii. The judge may decide of his own motion to direct the jury as to a possible verdict on a lesser charge.

e. Sections 3 and 3 A of the Criminal Appeal Act 1968 allow the Court of Appeal to substitute a verdict for a different offence than the one of which the appellant was convicted if it appears that either

i. The jury must have been satisfied of facts which proved him guilty of the alternative offence (section 3), or

ii. If he pleaded guilty, that the plea indicated an admission of facts which prove him guilty of the alternative offence (Section 3A which came into force on 1^st September 2004).

In all these situations except a. and e. the eventual decision to add a count or to leave an alternative verdict is in the hands of the trial judge. In different situations and for different reasons the request to the judge to leave a lesser offence to the jury may be agreed or objected to by either the defence or the prosecution. Even if both sides agree on a particular course the judge may decide not to follow it. One example of such a situation concerns the question of a possible verdict, on a charge of murder, of manslaughter by reason of provocation. The prosecution may argue that the case is one of murder or nothing. The defence, frequently in such cases relying on self-defence, may argue likewise, believing that there is a danger that if a "compromise verdict" is left to the jury the defendant maybe convicted whereas if no such verdict was left he may well be acquitted altogether. The judge may however decide that there is evidence which could justify a verdict of manslaughter by provocation.

24. Does a decision by the judge to leave a lesser offence to the jury for its consideration amount to "the commencement of proceedings for the particular offence"? Two possibilities arise.

a) In every case in which an alternative verdict is possible, either because it is provided for in the statute creating the principal offence or because of the provisions of section 6 of the Criminal Law Act 1967, proceedings have commenced in respect of all such offences from the moment the charge for the greater offence is laid. This proposition has only to be stated for its absurdity to become apparent. It would mean that in cases like the present a charge of rape could not be brought in respect of a 14 year old girl more than twelve months after the alleged offence since any such charge inevitably involves an allegation under Section 6 of the Act.

b) Proceedings commence in respect of the lesser offence at the moment at which the trial judge makes the decision to leave the lesser offence to the jury for its consideration and the defendant becomes liable to be convicted of it, or on appeal when the Court of Appeal decides to substitute a verdict of the lesser offence. Although in cases in which a count is added to the indictment and a plea is taken it can clearly be said that proceedings have commenced in respect of the offence alleged in the count, it is hard to see how that can apply to the leaving of an alternative verdict. There is no sense in which there have been any "proceedings" in respect of the offence. The proceedings have been brought in respect of a different and more serious offence. No verdict will be taken – or other order made by the court – in respect of the lesser offence if there is a conviction of the more serious one. The acquittal if there is one will be an acquittal on the count in the indictment. It is somewhat fanciful to suggest that the substitution of a verdict by the Court of Appeal (Criminal Division) amounts to the "commencement of proceedings".

25. Even if the taking of an alternative verdict to a lesser charge does not amount to the commencement of proceedings, is the wording of the Schedule such as to give rise to the conclusion that Parliament intended to prevent the conviction under any circumstances of an offender for conduct which amounts to an offence under section 6 of the Act if proceedings are commenced for a more serious offence which is not subject to the limitation period? It was common ground in J that it is difficult if not impossible to discern a coherent framework within the Act. At para 48 Lord Clyde:

"It has of course to be accepted that the Act of 1956 is a consolidating statute and that a complete coherence is not necessarily to be found among all its provisions. But the two offences detailed in ss.6 (1) and 14 (1) have in substance co-existed in the legislative history over a long period and should be open to a mutually consistent interpretation."

Lord Bingham at para 15:

"The historical derivation of the 1956 Act had been shown to result in much internal inconsistency and lack of coherence (see, for example, R v K [2001] UKHL 41, [2002] 1 Cr. App.R. 121 [2002 1 AC 462, para.4) but the deficiencies of the Act cannot absolve the court from its duty to give effect to clear and unambiguous provisions."

Baroness Hale put it more trenchantly at para 89:

"In short, the 1956 Act was a mess when it was enacted and became an ever greater mess with later amendments."

Lord Bingham's view, which we have already quoted, though not of course part of the ratio decidendi, was that the prohibition did not extend to the possibility of alternative verdicts (Para 23).

26. Their Lordships in J were principally concerned with the evasion, circumvention or "side-stepping" of the limitation (freely admitted by the prosecution) involved in charging the general offence which was not time-barred in preference to the more specific offence which was, e.g. Lord Steyn at para 37, Lord Clyde at para 49, Lord Rodger at paras 63 and 64.
27. As Mr Evans who appeared for the Crown submitted:

a) Schedule 10's words are specific. "A prosecution may not be commenced more than 12 months after the offence charged." Here there was no question of the Crown commencing the prosecution of the defendant with either a section 6 or a section 14 offence. The prosecution commenced, and continued until the jury's verdict, as a prosecution for rape.

b) There was strong support from Lord Bingham (para 14) as well as from Baroness Hale for the public policy public interest considerations of bringing within the criminal justice system those mature men who deliberately groom under age girls for sex and succeed in having sexual intercourse with them, and guarded support from at least one other of their Lordships (Lord Rodger at para 57).

Parliament has, since 1956, enacted the Criminal Law Act 1967, section 6(3) of which enable juries to return verdicts on lesser charges when the facts they find fall short of proof of the greater. In Fisher, Marshall & Mitchell (George) [1969] QB 114 Cusack J ruled at first instance that a verdict of unlawful sexual intercourse in not available on a charge of rape. This judgment was approved in Mochan [1969] 1 WLR 1331. The reasoning in those cases had nothing to do with the limitation period but was based upon the age of the victim, crucial in the section 6 offence, but irrelevant in a section 1 offence. Indecent assault, at least since the decision of this court in Hodgson (1973) 57 Cr App R 502, as a lesser alternative to rape in cases where the victim is over 13 but under 16, has long been a classic example of the workings of section 6(3).

28. In our judgment to hold that the express intention of Parliament in 1967 as to alternative verdicts should be thwarted by an express intention of Parliament in 1956 concerning the commencement of proceedings for a different offence than the one the subject of the alternative verdict would be quite wrong.
29. We find that the learned trial judge was right to rule as he did. Neither the speeches in J nor the words of Schedule 10 compel a conclusion that he was not. This appeal must therefore be dismissed.