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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> R v. J [2004] UKHL 42 (14 October 2004)
URL: http://www.bailii.org/uk/cases/UKHL/2004/42.html
Cite as: [2005] 1 AC 562, [2004] UKHL 42, [2005] AC 562, [2005] 1 Cr App Rep 19, [2004] 3 WLR 1019, [2005] 1 Cr App R 19, [2005] 1 All ER 1

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Judgments - Regina v. J (Appellant) (On appeal from the Court of Appeal (Criminal Division))

HOUSE OF LORDS

SESSION 2003-04
[2004] UKHL 42
on appeal from: [2002] EWCA Crim 2983

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

Regina

v.

J (Appellant)

(On Appeal from the Court of Appeal (Criminal Division))

ON

THURSDAY 14 OCTOBER 2004

The Appellate Committee comprised:

Lord Bingham of Cornhill

Lord Steyn

Lord Clyde

Lord Rodger of Earlsferry

Baroness Hale of Richmond

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

Regina v. J (Appellant) (On Appeal from the Court of Appeal (Criminal Division))

[2004] UKHL 42

LORD BINGHAM OF CORNHILL

My Lords,

The point of law of general public importance certified by the Court of Appeal (Criminal Division) under section 33(2) of the Criminal Appeal Act 1968 in this case is:

The Court of Appeal resolved that question in favour of the Crown and adversely to J, who appeals to the House against that decision.

In 1996-1997, when he was aged 35-37 and she was aged 13-14, J repeatedly had sexual intercourse with C and at his request she repeatedly had oral intercourse with him. He ran a business on land rented from C's father and she began working for him at the week-end and during the school holidays. He took this opportunity to cultivate a sexual relationship with her which culminated in the conduct already mentioned. J's conduct was plainly criminal. It was made the more serious by the disparity between the respective ages of himself and C; by his standing as a middle-aged man, an associate of C's father and her employer; by the steps which he took to groom C and, it seems, record on video their sexual activity; by the frequency of that activity; and by the period over which it continued.

C did not reveal what had happened between her and J until some three years later, when she was seventeen. By that time, as will be seen, it was too late to prosecute J under section 6 of the 1956 Act, either summarily or on indictment, for having unlawful sexual intercourse with a girl under the age of 16. An indictment was accordingly preferred containing four counts. The first three of these were specimen counts charging J with indecently assaulting C on dates in 1996 and 1997, contrary to section 14(1) of the 1956 Act. The fourth was a specimen count charging him with committing an act of gross indecency with a child in 1996, contrary to section 1(1) of the Indecency with Children Act 1960. The prosecution's written case summary at the trial made plain that the first three counts were specimen counts relating to sexual intercourse between J and C and that the fourth count was a specimen count relating to oral sex. When J appeared before His Honour Judge Hume-Jones in the Crown Court at Taunton in October 2001, application was made to stay the prosecution on the ground that to charge indecent assault in such circumstances was a device to circumvent the time limit on a prosecution for unlawful sexual intercourse and so amounted to an abuse of the process of the court. The judge rejected that application, ruling (in written reasons given later) that there was nothing to prevent the prosecution charging indecent assault in the circumstances. Directing the jury in due course on the first three counts, the judge said:

By a majority, the jury convicted J on all four counts. He was sentenced to a total of three years' imprisonment on the first three counts and to 12 months' imprisonment consecutive on the fourth.

The Court of Appeal reduced J's sentence on the fourth count from 12 months' imprisonment to nine, acceding to a submission that he need not be a long-term prisoner. But the lawfulness of his conviction on the fourth count was not challenged in the Court of Appeal or before the House. It related to an act of oral intercourse, which does not fall within the definition of sexual intercourse in section 44 of the Act. It was of course an act incidental to the sexual relationship which existed between J and C, but it was an independent act, not inherent in or forming part of the sexual intercourse which took place between them. The charge under count 4 was properly laid and there is no reason to doubt that J was properly convicted. That count need not be further considered.

J's challenge in the Court of Appeal to his convictions on the first three counts rested on essentially the same abuse of process argument as the judge had rejected. The Court of Appeal (Potter LJ, Butterfield J and Judge Paget QC) also rejected it: [2002] EWCA Crim 2983, [2003] 1 WLR 1590. Having reviewed a body of authority relied on by one or other party, the court concluded, at pp1601-1603:

(1) that "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" (para 31);

(2) that selection of an appropriate charge generally lies within the discretion and responsibility of the Crown (para 32);

(3) that the court nonetheless reserves to itself a residual and discretionary power to stay criminal proceedings as an abuse of process (para 33);

(4) that the prosecution in this case had not been guilty of conduct which could fairly be characterised as a misuse of the process of the court (para 38); and

(5) that it was not necessarily 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 section 6 of the 1956 Act (para 38).

Giving the judgment of the court, Potter LJ said, at p 1603, para 39:

Then, having referred to the facts and observed that the counts laid could not and should not be regarded as a misuse of the process of the court or an affront to justice (para 40), Potter LJ continued, at p 1604, para 41:

At the heart of this appeal lie three statutory provisions to which reference must now be made. The first of these is section 6(1) of the 1956 Act which, as amended and so far as material, provided:

Intercourse with girl between 13 and 16

The subsection must be read with section 5 which made it an offence, and a much more serious offence, to have sexual intercourse with a girl under the age of 13. Section 6 was directed to the proscription of consensual intercourse with under-age girls, since intercourse alleged to be non-consensual would be prosecuted as rape. As Mr Perry, for the Crown, has helpfully and painstakingly demonstrated, section 6(1) was (until repealed by Schedule 7 to the Sexual Offences Act 2003) the latest in a series of statutory provisions directed to that end, although the age below which a girl was protected has been increased over the centuries from 10 (18 Eliz 1 cap 7, section 4) to 12 (9 Geo IV cap 31, section 17; Offences against the Person Act 1861 (24 & 25 Vict c 100), section 51) to 13 (Offences against the Person Act 1875 (38 & 39 Vict c 94), section 4) to 16 (Criminal Law Amendment Act 1885 (48 & 49 Vict c 69), section 5(1)). Neither of the exceptions provided in section 6 applies in this case, and it was not suggested that the terms of sub section (1) were in any way ambiguous or obscure. There can be no doubt that the acts of sexual intercourse with C charged against J in the first three counts, and found by the jury to have been committed, fell squarely within subsection (1).

The second statutory provision crucial to the outcome of this appeal, given effect by section 37 of the 1956 Act, is found in paragraph 10(a) of Schedule 2 to that Act. This sub-paragraph related to the offence of intercourse with a girl under 16 contrary to section 6 and specified (as described in section 37(2)) a special restriction on the commencement of a prosecution. The special restriction was that:

As, again, Mr Perry has helpfully shown, this provision also had a number of ancestors. Section 5 of the Criminal Law Amendment Act 1885 provided that no prosecution for an offence under subsection (1) (sexual intercourse with a girl aged between 13 and 16) should be commenced more than three months after the commission of the offence. Section 27 of the Prevention of Cruelty to Children Act 1904 increased the time limit to six months. Section 2 of the Criminal Law Amendment Act 1922 increased the period to nine months. Section 1 of the Criminal Law Amendment Act 1928 made a further increase to 12 months. That provision was consolidated in the 1956 Act.

An increase in the time limit from nine months to 12 was recommended in a Report of the Departmental Committee on Sexual Offences against Young Persons under the chairmanship of Sir Ryland Adkins KC (1925) (Cmd 2561), which said:

The 12 month time limit was in its turn reviewed by the Criminal Law Revision Committee under the chairmanship of Lord Justice Lawton which, in its Fifteenth Report (1984) (Cmnd 9213) on Sexual Offences, advised:

After 1956, Parliament enacted statutes relating to sexual offences in 1960, 1967, 1976, 1985, 1992 and 1993, but it did not (until it enacted Schedule 7 to the Sexual Offences Act 2003) abrogate or amend the 12 month time limit enacted in paragraph 10(a) of Schedule 2 to the 1956 Act. It was not suggested in argument that this provision was in any way ambiguous or obscure. It plainly precluded any prosecution of J under section 6 of the Act. That, of course, is why J was not prosecuted under that section for having sexual intercourse with C when she was under age.

The third statutory provision important for present purposes is section 14 of the 1956 Act which, so far as relevant, provided:

Indecent assault on a woman

The exception in subsection (3) has no bearing on this case. Indecent assault on a woman, as a separate offence, dates back to section 52 of the Offences against the Person Act 1861, and section 1 of the Criminal Law Amendment Act 1922 first provided that it should be no defence to a charge or indictment for an indecent assault on a child or young person under the age of 16 to prove that he or she consented to the act of indecency. The House was not addressed, and the present appeal calls for no decision, on the ingredients of indecent assault under section 14. It is enough to say that it includes an intentional touching of one person by another in circumstances of indecency, whether or not (where the person touched is a girl under 16) she consents: Faulkner v Talbot [1981] 1 WLR 1528, 1534. As the Court of Appeal held in para 31 of its judgment, quoted in part in para 5 above, this broad description is capable of covering the conduct of J when having sexual intercourse with C.

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 CJ and himself, in 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] 1 AC 42. As Mr Meeke QC, 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, did not imperil the fairness of the trial. There was no misconduct by the executive. This was a case in which the prosecution, learning of serious criminal conduct when it was too late to prosecute under section 6, sought to discharge its public duty by prosecuting under section 14. It was a decision which the general public would applaud.

In the course of argument before the House, however, it became clear that J's real complaint was not that the prosecution had abused the process of the court, as that expression is ordinarily understood, but that it had prosecuted under section 14 when, on a proper construction of the three statutory provisions discussed above and on the facts relied on to support the prosecution, it was precluded by statute from doing so. This approach calls for recognition of some very basic but fundamental principles. It is the duty of the court to give full and fair effect to the meaning of a statute. In a purely domestic context such as this, it cannot construe the statute by reference to any extraneous legal instrument. It must seek to give effect to all the provisions of a statute. It cannot pick and choose, giving effect to some and discounting others. It has no warrant, in a case such as this where no Convention right is engaged, to resort to the unique interpretative technique required by section 3 of the Human Rights Act 1998. If a statutory provision is clear and unambiguous, the court may not decline to give effect to it on the ground that its rationale is anachronistic, or discredited, or unconvincing. The historical derivation of the 1956 Act has been shown to result in much internal inconsistency and lack of coherence (see, for example, R v K [2001] UKHL 41, [2002] 1 AC 462, 467, para 4) but the deficiencies of the Act cannot absolve the court from its duty to give effect to clear and unambiguous provisions.

Thus the problem may be simply stated. In section 6 Parliament has criminalised a form of conduct compendiously described as having sexual intercourse with a girl under the age of 16. But it has prohibited the commencement of a prosecution for such conduct more than 12 months after the offence charged. In section 14 it has criminalised indecent assault, with or without her consent, on a girl under 16. Under that section a prosecution on indictment is, anomalously, subject to no time limit. Where, for good reason, a prosecution for having sexual intercourse is not commenced under section 6 within 12 months of the intercourse, may the defendant nonetheless be prosecuted, for the same conduct, under section 14?

Mr Perry submitted that this question be answered affirmatively. He accepted in argument that this was to read paragraph 10(a) of Schedule 2 as if it provided that a prosecution for sexual intercourse with a girl under 16 might not be commenced more than 12 months after the offence charged but that, if a prosecution was not commenced within that time, the same conduct could thereafter be prosecuted under section 14.

This is, to my mind, an impossible reading, since Parliament must have intended the prohibition in paragraph 10(a) to have some meaningful effect and this reading would deprive it of any meaningful effect whatever, given that when the 1956 Act was passed the same maximum penalty applied on conviction under either section. Put another way, what possible purpose could Parliament have intended to serve by prohibiting prosecution under section 6 after the lapse of 12 months if exactly the same conduct could thereafter be prosecuted, with exposure to the same penalty, under section 14?

Authority on the application of other statutes, differently expressed, is of limited assistance in resolving a problem of this kind. But some help may be gained from R v Cotton (1896) 60 JP 824, which was not cited to the Court of Appeal. Section 9 of the Criminal Law Amendment Act 1885 provided that on a trial for rape the jury, if not satisfied that the defendant was guilty of rape but satisfied that he was guilty of having intercourse with a girl aged between 13 and 16, contrary to section 5(1) of the Act, might convict of the latter offence. The prosecutor opened the case as one in which that course could be adopted. Pollock B, the trial judge, questioned whether that was permissible where (as was the case) more than three months (the time limit for prosecution under section 5) had elapsed between the conduct alleged and the prosecution. He ruled, at p 825:

The jury acquitted the defendant of rape, and he was discharged. The very brief report makes no reference to indecent assault, of which it was also open to the jury to convict under section 9. I would hesitate to accept all the reasoning of the learned baron. But the authority does show the rigour with which the time limit was applied on its first enactment, despite the consequence which might (and did) ensue.

R v Cotton was cited in the Court of Appeal of New Zealand in R v Blight (1903) 22 NZLR 837. The Criminal Code in force at the time, reflecting the English, included an offence of sexual intercourse with a girl under 16, to which a one month time limit applied, and also an offence of indecent assault to which no time limit applied but to which, in the case of a young victim, consent was not a defence. Well after expiry of the time limit, the defendant was prosecuted for indecent assault, he having had sexual intercourse with a girl under 16. A majority of the court held this course to be impermissible. As Williams J put it, at p 847:

Given that the maximum penalty for indecent assault was significantly greater than that for unlawful sexual intercourse, it is hard to accept the reasoning of Stout CJ, dissenting, that a defendant indicted for a minor offence is not entitled to be acquitted because the prosecution prove a major offence. The reasoning of the majority was recently approved and applied by the Court of Appeal of New Zealand in R v Hibberd [2001] 2 NZLR 211.

R v Blight 22 NZLR 837 was not followed by the Court of Criminal Appeal of New South Wales in R v Saraswati (1989) 18 NSWLR 143. The defendant had been convicted on several counts of indecency with a child, the only evidence relied on, in relation to some counts, being evidence of full sexual intercourse. There were statutory time limits which precluded prosecution for unlawful sexual intercourse and indecent assault, and it was held to be no abuse of process for the prosecution to rely on the evidence of sexual intercourse to establish the charge of indecency (pp 145, 169-170). A majority of the High Court disagreed: (1991) 172 CLR 1. Toohey J (p 16) and McHugh J (p 23) relied on a

They could not accept (pp 16, 24) that when Parliament amended the relevant Act to criminalise acts of indecency it intended that general power to be used to circumvent the time limit placed on prosecutions under the specifically applicable sections of the same statute.

The House was referred to a number of sentencing decisions of the Court of Appeal (Criminal Division) which, in my opinion, throw no light on the present problem. The issues addressed in these cases were the result of two things: the increase in the maximum penalty for indecent assault from two years' imprisonment to 10, enacted by section 3(3) of the Sexual Offences Act 1985; and the practice of prosecutors to lay charges under section 14 when the time for doing so under section 6 had expired. In R v Quayle (1992) 14 Cr App R(S) 726, it appears, the prosecution proceeded under section 14 because of the higher penalty. In R v Hinton (1994) 16 Cr App R(S) 523 it did so because the section 6 time limit had expired. In these, and a long string of later cases, the court tried to achieve a fair result for defendants by adjusting the sentences imposed on those whose indecent assaults consisted of unlawful sexual intercourse so that they reflected the maximum sentence fixed by statute for that offence. In none of these sentencing decisions was the court called upon to consider the legitimacy of prosecuting acts of unlawful sexual intercourse as indecent assault after expiry of the time bar. It is, however, symptomatic of the irregularity of the exercise on which the courts were engaged that they felt constrained informally to reduce, by four-fifths, the maximum penalty set by Parliament for the offence of which the defendants had in fact been convicted.

In arguing for the construction summarised in para 17 above, Mr Perry suggested that any other construction would emasculate certain other provisions of the 1956 Act. The examples he gave were not persuasive. The essence of an offence under section 4 (administering drugs to obtain or facilitate intercourse) was the administering of the drug; there needed to be no proof of sexual intercourse. An offence against section 7 (intercourse with defective) was a specific offence, not subject to any time limit. In a case of incest by a man, prohibited by section 10, paragraph 14(a) of Schedule 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). A prosecution under section 10 could not be commenced except by or with the consent of the Director of Public Prosecutions, but was not stipulated to be the subject of any time limit. While it is unnecessary to decide the point, I incline to the view that an alternative verdict under section 6 in this context was subject to no time limit: the section 10 offence itself was not time-limited; nor was the section 5 offence; there was no repetition of the section 6 time limit; and the requirement for the Director's consent could have been expected to ensure that section 10 would not be used as a means of circumventing the time limit applicable to prosecutions under section 6. Even if Pollock B was right to reach the conclusion he did in R v Cotton (1896) 60 JP 824 (see para 19 above), I would incline to put a different construction on paragraph 14(a) of Schedule 2 to the 1956 Act.

Mr Perry contended that conduct may not infrequently be covered by more than one criminal offence and that prosecutors must enjoy a wide measure of discretion in selecting what charges they should prefer. With this in general I agree, while observing that if conduct falls within a more general and also a more specific statutory provision one would ordinarily expect a charge to be laid under the latter, as exposing the defendant to the penalty which Parliament prescribed for the particular conduct in question. But these principles are not engaged by the present provisions, in which Parliament has ordained that conduct of a certain kind shall not be prosecuted otherwise than within a certain period.

In very many cases, even where the 12 month time limit has passed, there will be independent acts other than sexual intercourse itself, or conduct inherent in or forming part of it, on which a prosecution could properly be founded. The present case is a good example, since oral intercourse was charged in the fourth count, other acts of oral intercourse could have been charged and there may well have been other acts independent of the sexual intercourse between J and C, and not inherent in or forming part of it, on which additional charges could have been founded. It is only where the time limit has expired, and when only evidence of sexual intercourse is relied on, that the defendant may not be prosecuted.

I would answer the certified question by ruling that:

It follows that the prosecution of J under counts 1-3 should have been stayed, or those counts dismissed. For these reasons, and also those given by my noble and learned friends Lord Steyn and Lord Rodger of Earlsferry, I would allow J's appeal and quash his convictions on those counts.

LORD STEYN

My Lords,

Until very recently the Sexual Offences Act 1956 differentiated between offences by a man of unlawful sexual intercourse with a girl under the age of 16 years, contrary to section 6(1), and by a person of indecent assault on a woman, contrary to section 14, in a curious way. Under section 6(1) a prosecution could not be brought more than 12 months after the offence was charged: see section 37 and paragraph 10(a) of Schedule 2 to the Act. But under section 14 no similar time bar was applicable. The policy underpinning the time bar under section 6 was apparently to prevent prosecutions in respect of stale charges. But that policy would appear to apply equally to charges under section 14. Allowing a time bar in one case but not in the other seemed strange. Moreover, in modern times the provision of a relatively short time bar of 12 months in respect of charges under section 6 was widely regarded as not in the public interest. Not surprisingly, Parliament abolished the time limit with effect from 1 May 2004 by the Sexual Offences Act 2003. The change in the law is, of course, not of retrospective effect. This appeal is concerned with the pre-existing law under which section 6 of the Act contained a time limit of 12 months on prosecutions but section 14 did not. The House has been told that there may be a number of other old cases which raise the same problem as is presently before the House.

The broader policy issue whether there is, in the modern world, a sensible scope for some time limits under statutes like the Sexual Offences Act 1956 is a matter for Parliament. For my part I would not wish without examination to rule out some time limits for prosecutions under the Sexual Offences Act 2003. Time limits necessarily have an arbitrary element. But it may well be that the bringing of truly stale charges, very many years after the events took place, are not in the interests of victims and society. This is a subject which could benefit from a Law Commission investigation.

It is essential to concentrate on the precise way in which the appeal comes before the House. The problem arises in a stark form. On counts 1, 2 and 3 of the indictment the prosecution case was that the defendant had unlawful sexual intercourse with a girl under the age of 16 years. That was how the case was presented by the prosecution to the jury and how the judge summed up the case to the jury. The case fell squarely within section 6(1). But there was no charge under section 6(1) of the Act. In order to avoid the time limit under section 6(1), which would have been applicable on the facts of the case, the Crown Prosecutor in charge of the prosecution decided to frame the charge under section 14. He thought he was entitled to do so. It is necessary to emphasize that in this particular case, apart from the wish to avoid the time limit under section 6(1), there was no rational reason for deciding on a charge under section 14. The problem before the House arises in a simple form: was the Crown Prosecution Service ("the CPS") entitled, for the sole purpose of avoiding the 12 months time limit under section 6(1) to frame the charge under section 14?

In the Crown Court, and in the Court of Appeal, the issue was regarded as whether it was an abuse of process for the CPS to act as it did. The judge held that it was not an abuse of process. The Court of Appeal came to a similar conclusion: R v J [2002] EWCA Crim 2983; [2003] 1 WLR 1590. The court accepted that the defendant was "deprived of a protection provided by the law in respect of prosecutions under section 6". The court concluded that this did not arise from a misuse of process by the prosecution, but from delay by the complainant: p 1603, para 39. But this was not a case about delay.

In giving the judgment of the court Potter LJ was alive to the potential difficulties. He observed, at p 1604, para 41:

This observation raises the question: why should the Crown Prosecutor not always be entitled to avoid the time limit by charging an offence under section 6(1) as an offence under section 14? It is a question to which our law provides straightforward answers.

Departing somewhat from the agreed issues on this appeal, it is in my view necessary to approach the problem from two different but connected angles. First, the question is whether as a matter of the correct interpretation of the Act a Crown Prosecutor may charge conduct covered by section 6(1) under section 14 for the sole purpose of avoiding the time limit under the former provision. Secondly, whatever the answer to the first question, whether it is within the powers of a Crown Prosecutor, tested against public law principles, to act in this way. I deal first with the question of statutory construction.

Let it be imagined that the Director of the CPS issued an instruction, with the approval of the Attorney-General, that in all cases covered by section 6(1) where a time limit arises the charge must be brought under article 14. The result would be that by the decision of the CPS the time limit provided by Parliament would be rendered wholly meaningless. That would be a comprehensive evasion of the intent of Parliament in making provision for the time limit.

Let me now assume that instead the CPS permitted Crown Prosecutors to avoid the relevant time limit in particular cases where they deem it in the public interest. It is, of course, what happened in practice. That too must be an evasion of the intent of Parliament because Parliament provided for a general time limit on prosecutions under section 6(1) and not a discretionary one.

An authority not cited in the Court of Appeal throws light on the correct approach to the adoption of such a prosecutorial strategy. In R v Cotton (1896) 60 JP 824 the defendant was charged with rape. By section 9 of the Criminal Law Amendment Act 1885 the offence under section 5(1) of the Act of unlawfully and carnally knowing a girl over 13 and under 16 years of age, was a statutory alternative to rape. There was, however, a proviso to section 5(1) that no prosecution should be commenced more than three months after the commission of the offence. Pollock B held, at p 825:

The jury acquitted the defendant of rape and he was discharged. It was thus held that as a matter of statutory interpretation the intent of Parliament cannot be lawfully evaded. A similar approach was adopted in R v Blight (1903) 22 NZLR 837 by a majority of the New Zealand Court of Appeal. This decision was recently followed in R v Hibbard [2001] 2 NZLR 211; see also the decision of the majority in the High Court of Australia in Saraswati v The Queen (1991) 172 CLR 1.