England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		15th December 2005

1. THE VICE PRESIDENT: If a history of criminal legislation ever comes to be written it is unlikely that 2003 will be identified as a year of exemplary skill in the annals of Parliamentary drafting.
2. In recent months the courts have been taxed with a number of perplexing provisions in the Criminal Justice Act 2003. Today we face, as already have Crown Courts up and down the country, a major problem which arises from the Sexual Offences Act 2003 (Commencement) Order 2004, Statutory Instrument 874, bringing most of the Sexual Offences Act 2003 into force on 1st May 2004 and, therefore, by simultaneously repealing, by section 140 and Schedule 7 of that Act, many provisions of the Sexual Offences Act 1956. This has taken place in the context of the Secretary of State not having exercised his order-making powers under section 141(2)(b) of the 2003 Act to make "supplementary, incidental, saving or transitional provisions."
3. In consequence, there is before the Court today the first appeal to come before this Court under the provisions of section 58 of the Criminal Justice Act 2003, which enables the prosecution to appeal against a judge's ruling in relation to a trial on indictment, in certain circumstances.
4. It is brought by certificate of the trial judge, His Honour Judge Jack, sitting at Hull Crown Court. The certificate follows a ruling that he gave on 2nd December 2005, in relation to a trial due to begin on 9th January 2006. It is in the following terms:

"This is a matter of law of public importance, in which my ruling may result in a clear injustice. The appeal should be expedited."

5. The circumstances are these. The indictment, as presently drafted, contains nine counts in relation to alleged sexual offences against children, committed between January 1995 and August 2004. Counts 1 to 3 make allegations of indecency with a child, contrary to the Indecency with Children Act 1960; counts 8 and 9, allege causing or inciting a child under 13 to engage in sexual activity, contrary to section 8 of the Sexual Offences Act 2003. Counts 4 to 7, to which this appeal relates, allege indecent assault between 1st and 30th April 2004, on a child under 16, contrary to section 14(1) of the Sexual Offences Act 1956.
6. The stance of the prosecution before the trial judge and repeated before this Court today, by Miss Bradley, on their behalf, is that the prosecution are not and will not be able to prove, in relation to counts 4 to 7, whether they were committed before or after 1st May 2004. The complainant is a young girl and she is not able to identify the relevant dates.
7. The judge was invited by the prosecution to rule that counts 4 to 7 could, in due course, properly be left to the jury on the basis that they could infer that the offences were committed before 1st May. He declined to do so, and ruled with regret that, albeit the position was nonsensical, counts 4 to 7 could not be left to the jury in their present form and on that basis.
8. Before us, counsel for the prosecution and counsel for the defence have, in essence, repeated the submissions which they made to the trial judge.
9. On behalf of the prosecution, Miss Bradley draws attention to the provision of section 141 of the Sexual Offences Act 2003 which empower the Secretary of State to make orders including, under subsection (2)(b), "supplementary, incidental, saving or transitional provisions". As we have said, the only relevant way in which that power has been exercised is by Statutory Instrument 2004 No 874, which provides, in paragraph 2, "The Sexual Offences Act 2003 shall come into force on 1st May 2004, in so far it is not already in force."
10. Section 140 of the Act repeals the provisions listed in Schedule 7, which include the Sexual Offences Act 1956. Miss Bradley referred to R v Newbon [2005] Crim LR 738, where a similar difficulty presented itself to Judge Glen at the Stoke-on-Trent Crown Court, on 24th February 2005. The judge, on that occasion, like the present trial judge, referred to the nonsensical and, as he added, "outrageous" result, which was a consequence of the Secretary of State's failure to exercise his powers under section 141(2), in particular in relation to transitional provisions. Miss Bradley drew attention also to the academic commentary upon Judge Glen's decision. She also referred to the Violent Crime Reduction Bill, which, as brought from the House of Commons has had its first reading in the House of Lords. She accepts that the provisions of that Bill, the date of the second reading of which is not presently known, cannot properly be used as an aid to interpretation of the Sexual Offences Act. But she draws attention to the observations made in the House of Lords By Baroness Clark of Calton, who in paragraph 314 said this:

"It is the Government's view that an offender should not avoid conviction because it cannot be proven beyond reasonable doubt exactly when such an offence took place. The provision made by clause 48 is intended to make that clear."

Clause 48, which is headed "Continuity of sexual offences law", says this:

"(1) This section applies where, in any proceedings- (a) a person ('the defendant') is charged in respect of the same conduct both with an offence under the Sexual Offences Act 2003 ('the 2003 Act offence') and with an offence specified in subsection (2)

('the pre-commencement offence').

(b) the only thing preventing defendant from being found guilty of the 2003 Act offence is the fact that it has not been proved beyond a reasonable doubt that the time when the conduct took place was after the coming into force of the enactment providing for the offence; and.

(c) the only thing preventing the defendant from being found guilty of the pre-commencement offence is the fact that it has not been proved beyond a reasonable doubt that that time was before the coming into force of the repeal of the enactment providing for the offence."

Subclause 2 identifies the Sexual Offences Act 1956 as containing offences of the kind referred to in subclause 1(a). Subclause 3 provides:

"For the purposes of determining the guilt of the defendant it shall be conclusively presumed that the time when the conduct took place was-

(a) if the maximum penalty for the pre-commencement offences is less than the maximum penalty for the 2003 Act offence, a time before the coming into force of the repeal of the enactment providing for the pre-commencement offence; and.

(b) in any other case, a time after the coming into force of the enactment providing for the 2003 Act offence."

Miss Bradley does not invite us to embark on any construction of those provisions and we do not do so. It suffices for present purposes to say that those are the sort of provision which, had they presently been in force, might have resolved the difficulties which currently arise.

11. Miss Bradley submits that the courts must have flexibility to adopt a rational and civilised criminal code. The adverse adjectival descriptions of the result of this legislation, adopted by the trial judge in the present case, and Judge Glen in Newbon, demonstrate that, if the trial judge's construction in the present case is correct, injustice will result by reason of a nonsensical situation. She prays in aid the undoubted proposition that the Court should strive to acquit the innocent and convict the guilty. Also, she refers to the explanatory note to the Sexual Offences Act 2003 ascribing to Parliament an intention to strengthen the law and protect the public against sexual offences.
12. With that preamble, she advances essentially two principal submissions in support of this appeal. First, she relies on section 17 of the Interpretation Act 1978, subsection (1) of which is in these terms:

"Where an act repeals a previous enactment and substitutes provisions for the enactment repealed, the repealed enactment remains in force until the substituted provisions come into force."

13. She sought, at one stage in her argument, to draw a distinction between whether legislation was "in force" and whether or not it had been "implemented". But that is a difficult stance to adopt, bearing in mind that statutory instrument 874 uses the words, as we have set out, "come into force."
14. Miss Bradley, secondly, invited the Court to adopt a purposive approach and to construe the legislation and/or the Statutory Instrument in such a manner as to ensure that, in relation to counts 4 to 7, this defendant should not be able to escape justice. She referred first to the speech of Lord Diplock in Jones v Wrotham Park Estates [1980] AC 74 at page 105, where, at letter E, he said:

"I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a court of justice is engaged remains one of construction; even where this involves reading into the Act words which are not expressly included in it. Kammins Ballrooms Co. Ltd. v. Zenith Investments (Torquay) Ltd. [1971] A.C. 850 provides an instance of this; but in that case the three conditions that must be fulfilled in order to justify this course were satisfied. First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed."

15. As to the third of those conditions, Miss Bradley drew attention to the speech of Lord Nicholls of Birkenhead in Indo Europe limited v First Choice Distribution [2000] 1 WLR 586, at 592F. His Lordship referred to: "the substance of the provision Parliament would have made although not necessarily the precise words Parliament would have used had the terror in the Bill been notice." She relied upon that passage as having a loosening effect on the third of the conditions identified by Lord Diplock.
16. She submitted that the present is a situation in which the precise words which Parliament might have used are not known but, in order to achieve continuity, the 1956 Act should, by construction, be regarded as continuing to operate until the 2003 Act has effect. She submitted that the 2003 Act should be interpreted as being in force provided that it can be proved that the conduct relied on was committed on or after 1st May. She posed the question: how can the 2003 Act be in force if one cannot prosecute the man under it? That, if we may say so, is a somewhat novel approach to statutory interpretation, because it would make interpretation of the 2003 Act dependant on the evidence in a particular case. It would also mean that, in some shadowy way, the 1956 Act would be preserved and would continue to be in effect indefinitely, depending on the evidence in the particular case.
17. For the defendant, Miss Sjolin concedes that the submission which she advances is unattractive. But she submits that the conclusion to which the Court is driven is inescapable. Section 140 of the 2003 Act, through Schedule 7, repeals the 1956 Act. Section 141 permits and empowers the Secretary of State to make transitional provisions. By those two sections, Parliament has demonstrated its intention and what it envisaged. The Secretary of State has made no relevant transitional provisions. The Statutory Instrument which has been made, bringing the 2003 Act into force, is short and clear, and it is simply not open to the court to interpret either the 2003 Act, or the statutory instrument, in the way contended for on behalf of the prosecution. It is not open to this Court to cure the inactivity of the Secretary of State by statutory interpretation, purposive or otherwise.
18. Miss Sjolin also invited the Court's attention to a decision of the administrative Court in R v (On the Application of Haw v Secretary of State for the Home Department [2005] EWCA 2061 Admin. In particular, she adverted to certain passages in the judgment of Smith LJ in that case. It is not an authority from which we derive assistance in the present case because the legislation there under consideration, in stark contrast to the legislation here under consideration, was making criminal conduct which had not previously been criminal.
19. As it seems to us, Miss Sjolin's arguments are unanswerable. It is not possible for this Court so to interpret either the 2003 Act, or the Statutory Instrument, in order to provide a transitional regime which Parliament envisaged should be provided by the Secretary of State. It follows that the learned judge was entirely correct to reach the conclusion which he did, and this appeal must be dismissed.
20. However, we add this: by section 14 of the 1956 Act, it was an offence indecently to assault a woman, and a girl under 16 could not give consent preventing an act being an assault. The maximum penalty for that offence was 10 years' imprisonment. By section 9(1) of the 2003 Act, it is an offence for a person aged 18 or over, intentionally to touch another sexually, if the other is under 13, and the maximum penalty for that offence is 14 years' imprisonment.
21. It is apparent that Parliament's purpose was that the deliberate touching of a woman or girl, indecently in the terms of the 1956 Act, or sexually in the terms of the 2003 Act, was and should continue to be a criminal offence. As it seems to us, there can be no prejudice to a defendant if he is charged with alternative counts in the indictment, one identifying an offence contrary to the 1956 Act, if the conduct took place before 1st May 2004 and the other identifying an offence contrary to the 2003 Act, if the conduct took place on or after 1st May 2004.
22. The date on which an offence was committed is not generally a material averment (see for example R v Dossi 13 Cr App R(S) 158), and there could be no prejudice to a defendant, provided the conduct relied upon is sufficiently clearly identified, in him being charged with alternative offences framed as we have indicated.
23. The circumstances of the present case, as we have said, are unusual in that the prosecution are confident that it will not be possible to identify whether the conduct relied on took place before or after 1st May. That of itself, we comment in passing, is sufficient to demonstrate the correctness of the judge's conclusion that no implication of commission of the offence before 1st May, if the offence were merely charged under the 1956 Act, could properly be made. But there will perhaps be many cases in which there is evidence fit for the jury to consider that particular conduct took place before 1st May, or on or after 1st May, or both. In such circumstances, we would expect an indictment to be framed incorporating alternative counts. The matter will, of course, be reviewable, at the close of the prosecution case, as to whether there is or is not evidence sufficient for the jury's consideration as to the date or dates when the conduct took place. If, on review, there is such evidence for the jury 's consideration, then the jury will have to be directed in due course to decide, first, whether the conduct complained of occurred and, secondly, whether they are sure that it was before 1st May or on or after that date. They must, of course, all be sure of both matters before they can convict.
24. For the reasons already given, this appeal is dismissed.