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Session 2003 - 04
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Judgments - Regina v. J (Appellant) (On appeal from the Court of Appeal (Criminal Division))


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






J (Appellant)

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



The Appellate Committee comprised:

Lord Bingham of Cornhill

Lord Steyn

Lord Clyde

Lord Rodger of Earlsferry

Baroness Hale of Richmond




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

[2004] UKHL 42


My Lords,

    1.  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:

    "Whether it is an abuse of process for the Crown to prosecute a charge of indecent assault under section 14(1) of the Sexual Offences Act 1956 in circumstances where the conduct upon which that charge is based is an act of unlawful sexual intercourse with a girl under the age of 16 in respect of which no prosecution may be commenced under section 6(1) of the 1956 Act by virtue of section 37(2) of, and Schedule 2 to, the 1956 Act".

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

    2.  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.

    3.  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:

    "the allegation is that the defendant had sexual intercourse with [C] when she was under 16 … there is no dispute that conduct such as that which is alleged is capable of constituting the offence of indecent assault … . In law, a girl under the … age of 16, cannot consent to an indecent assault … .The sole issue for you on these counts is this. Are you satisfied, so that you are sure, … that the defendant had sexual intercourse with [C]?"

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.

    4.  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.

    5.  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:

    "39  We accept that the defendant is thereby deprived of a protection provided by the law in respect of prosecutions under section 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 in respect of prosecutions under section 6, 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."

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:

    "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 section 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 section 6. Equally, nothing we have said should detract from the now settled practice of this court in treating two 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 section 6."

    6.  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

    (1)  It is an offence, subject to the exceptions mentioned in this section, for a man to have unlawful sexual intercourse with a girl … under the age of 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).

    7.  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:

    "a prosecution may not be commenced more than 12 months after the offence charged."

    8.  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.

    9.  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:

    "Para 41(8)  The Criminal Law Amendment Act, 1885, section 5, provided that no prosecution for carnal knowledge of a girl between 13 and 16, or for the attempt, should be commenced more than three months after the commission of the offence. Six months was substituted for three months by a statute of 1904. The Criminal Law Amendment Act, 1922, section 2, has again extended the time, so that a prosecution for an offence under section 5 of the Act of 1885 must today be commenced within nine months of the commission of the offence.

    The extension from six to nine months was only made as recently as 1922, by way of compromise. There is a considerable body of evidence, however, to show that the limitation of nine months may be insufficient in many cases, to enable offenders to be brought to justice. There are occasions when the offence is not known until the girl has become a mother, and the evidence cannot be completed until after she has recovered sufficiently to make a statement. Or it may happen that the registration of the birth of a child, or an application for a summons for an affiliation order, is the first indication that an offence has been committed. In such cases it is clear that more than nine months may have elapsed since the commission of the offence and that, as the law now stands, no criminal proceedings can be taken. Unless some limitation of time is imposed for the prosecution of these offences injury may be caused by charges being held over; witnesses for the defence as well as for the prosecution may be lost; and important facts on one side or the other may not be provable. We are satisfied from the evidence, however, that the present limitation of time may be too short in cases in which a prosecution is called for.

    We therefore recommend that the time limit for the taking of proceedings under the Criminal Law Amendment Act, 1885, section 5(1), be extended to 12 months."

    10.  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:

    "7.  Limitation

    5.22  As we have already said, the object of the legislation against unlawful sexual intercourse is to protect girls, sometimes against themselves. The probability is that in the past the legislature was concerned with the damage that could be done to a young girl by pregnancy. In practice many complaints to the police are made when parents discover that their daughter has been made pregnant. In the last century a prosecution for unlawful sexual intercourse with a girl under 16 could not be commenced more than 3 months after the alleged act of intercourse. This has been extended gradually over the years and is now 12 months. In our opinion a period of limitation for this offence—which is only exceptionally found in the case of indictable offences—is of value in that it ensures that a prosecution may not be brought in respect of events that have become stale. For this purpose the present 12 month period seems right and we recommend that it should be retained.

    5.23  Nothing we say here affects the offence of unlawful sexual intercourse with a girl under 13. No limitation period applies to that offence; nor, in view of its gravity, is it appropriate that one should."

    11.  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.

    12.  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

    (1)  It is an offence, subject to the exception mentioned in subsection (3) of this section, for a person to make an indecent assault on a woman.

    (2)  A girl under the age of 16 cannot in law give any consent which would prevent an act being an assault for the purposes of this section."

    13.  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.

    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 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.

    15.  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.

    16.  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?

    17.  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.

    18.  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?

    19.  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 conclusion I have come to is that you cannot go on with the charge under section 5, more than 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."

    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.

    20.  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:

    "In the present case it is clear that everything done by the accused was an offence under section 196 [unlawful sexual intercourse] and nothing more. 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."

    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.

    21.  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

    "rule that, when a statute specifically deals with a matter and makes it the subject of a condition or limitation, it excludes the right to use a general provision in the same statute to avoid that condition or limitation".