Regina v. J (Appellant) (On appeal from the Court of Appeal (Criminal Division))
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.
22. 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.
23. 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.
24. 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.
25. 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.
26. I would answer the certified question by ruling that:
27. 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.
28. 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.
29. 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.
30. 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?
31. 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  EWCA Crim 2983;  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.
32. 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.
33. 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.
34. 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.
35. 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.
36. 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  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.
37. The legislative adjuration is explicit and strong: under section 6(1) "a prosecution may not be commenced more than 12 months after the offence charged". Parliament does not intend the plain meaning of its legislation to be evaded. And it is the duty of the courts not to facilitate the circumvention of the Parliamentary intent: Bennion, Statutory Interpretation, 4th ed., 2002, at pp 867-871. In the present case the intent to avoid the statutory time limit is freely acknowledged and, in any event, manifest. In these circumstances the conclusion is inescapable: as a matter of construction of the Act the time limit cannot be circumvented by the manipulation of the indictment to charge conduct falling squarely within section 6(1) as an offence under section 14 solely in order to avoid the time limit under the former provision.
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  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. In our system of government Parliament has the primary responsibility for the bulk of the criminal law which is statute based. The role of the courts is to interpret and apply statutes. The courts must loyally give effect to the statutes as enacted by Parliament. The judiciary may not render a statutory provision, such as a time limit, nugatory on the ground that it disagrees with the reason underlying it. The CPS as an independent law enforcement agency carry out duties of a public character. It must act fairly and within the law. It must observe statute law as Parliament framed it. In our Parliamentary democracy nobody is above the law. The powers of the CPS are extensive but not extensive enough to permit it to take decisions intended to evade the clear intent of Parliament. And it is plain as a pike staff that the CPS policy under challenge in the present appeal was intended to circumvent the intent of Parliament in creating a time limit for prosecutions under section 6(1).
39. It is, of course, true that the CPS has acted in good faith and in what it considered the public interest. But the particular policy it adopted unquestionably fell beyond its powers. It was ultra vires. For this further reason, which overlaps with the point of statutory construction, I would hold that the decision of the CPS to charge the defendant under section 14 in order to avoid the time limit under section 6(1) was unlawful.
40. For these reasons, as well as the reasons given by my noble and learned friends Lord Bingham of Cornhill, and Lord Rodger of Earlsferry, I would also allow the appeal and quash the convictions on counts 1, 2 and 3 of the indictment.
41. Section 6(1) of the Sexual Offences Act 1956 provides that subject to certain exceptions it shall be an offence for a man to have unlawful sexual intercourse with a girl under the age of 16. Section 14(1) provides that subject to certain exceptions it shall be an offence for a person to make an indecent assault on a woman. Section 37 and Schedule 2 state the maximum sentences for these offences. In the case of section 6(1) the maximum sentence is two years. In the case of section 14(1) it is on indictment 10 years. In the case of section 6(1), but not in the case of section 14(1), Section 37 and Schedule 2 prescribe a special restriction on the commencement of a prosecution, namely that a prosecution may not be commenced more than 12 months after the offence charged. The present case concerns the inter-play between these two sections. What happened here was that the appellant was alleged to have had unlawful sexual intercourse with a girl under the age of 16 which at the trial was proved to the satisfaction of the jury, but he was charged and was convicted of indecent assault under section 14(1) because the 12 month limit for proceedings to be taken under section 6(1) had expired.
42. The respondent provided a history of the development of the statutory provisions which lay behind the Act of 1956. If one goes no further back than the Offences against the Person Act 1861 one can find in sections 50 and 51 provisions for the offences of unlawful carnal knowledge of a girl under 10 years of age in the one section and over 10 and under 12 in the other. Section 52 provided for the offence of any indecent assault upon a female and any attempt to have carnal knowledge of a girl under 12 years of age. It is not clear whether or not the mere act of intercourse with a willing girl, even if she could not in law consent, would have been understood in 1861 to be sufficient to comprise a charge of indecent assault. If the mere act of intercourse would not have been treated as an assault then at least at that period there would not have been the problem which arises in the present case. But whatever may have been the understanding at that earlier time, the law proceeded to develop both through judicial decision and statute. The various statutory provisions were eventually consolidated in the Act of 1956. In R v McCormack  2 QB 442, 445G it was held as "plain beyond argument" that if a man inserted his finger into the vagina of a girl under 16 that would be an indecent assault in view of her age, however willing and co-operative she might be. The charge in question in that case was one of unlawful sexual intercourse and it was held to have been correct to leave to the jury as an alternative verdict a verdict of indecent assault.
43. The present case however is not concerned with problems of alternative verdicts. Nor is it concerned with the problem of the appropriate sentence in circumstances where what was in substance an offence under section 6(1) is presented as an indecent assault. That problem has been considered in such cases as R v Hinton (1994) 16 Cr App R(S) 523 and more recently in R v Figg  EWCA Crim 2752;  1 Cr App R(S) 409. The problem in the present case is whether a prosecution for what is in substance unlawful sexual intercourse with a girl under 16 should properly have proceeded as an indecent assault when it was too late to proceed under section 6(1).
44. The provision of a time limit on prosecutions for unlawful sexual intercourse with girls can be traced back to a proviso to section 5 of the Criminal Law Amendment Act 1885 which related to unlawful carnal knowledge of girls over 13 and under 16 years of age. The limit was then one of three months. The limit was successively increased in later legislation to the eventual period of 12 months which was consolidated into the Act of 1956. Whatever the precise reasoning behind the imposition of the time limit may have been, its intention must at least in part to have been to serve as a protection to an alleged offender. It was argued that the rationale for it was long out-dated, but it was still standing in the legislation when the present case arose and it is for Parliament to decide whether or not it should be changed. It has in fact recently been abolished by section140 and Schedule 7 of the Sexual Offences Act 2003. But that cannot entitle us to ignore its existence for the purposes of the case before us or to modify its effect.
45. The present case is plainly one where the act of sexual intercourse constituted the essence of the complaint. That was how the issue was presented by the trial judge to the jury. He said to the jury (at page 13 of the Appendix) "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]?" There was nothing in the defendant's behaviour other than the act of intercourse which was of such significance or importance as to justify the framing of a charge of indecent assault in place of one of unlawful sexual intercourse. The decision to prosecute under section 14(1) and not under section 6(1) appears to have been simply dictated by the expiry of the time limit.
46. It is for the prosecution to decide at the outset in light of the factual material available what the appropriate charge should be. But it cannot be that the prosecutor should have a free discretion to decide which of these two sections to select. His decision upon the appropriate charge must be principally governed by the predominating facts of the case. The behaviour complained of may include sexual intercourse but that may be only one element in a course of what was predominantly an indecent assault. The problem arises where the facts disclose nothing more in the way of assault than the act of unlawful sexual intercourse. That was the situation so far as the first three counts in the indictment in the present case were concerned.
47. It cannot be that in every case where the facts fit the provisions of section 6(1) a prosecution could also be taken under section 14(1). If every case of unlawful sexual intercourse against a girl under 16 was necessarily to constitute an indecent assault, then section 6 would be otiose. Even if there may be some overlap between the provisions some distinct content must be found for section 6(1).
48. The appellant presented the case primarily as one of abuse of process. But in the course of the argument a second line of approach emerged, namely one of statutory construction, or of statutory application. In my view this is a sound approach to the problem. It recognises that it would be a misapplication of the statute to allow a case which neatly and comprehensively falls within section 6(1) to proceed under section 14(1). To do so would be to ignore the clear provision regarding the time limit for prosecution which Parliament has attached to the offence detailed in section 6(1). 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 sections 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. Section 6(1) makes the particular facts with which it deals a distinct offence and attaches to that offence a limitation on the period for prosecution. The effect of that is, that once the time limit has passed it is not possible to present the same facts as an offence under section 14(1). On the approach to construction adopted by Pollock B in R v Cotton (1896) 60 JP 824 "the time must be considered as the essence of the charge", and on that approach the exclusion of the one offence from the ambit of the other after the operation of the time limit becomes all the more obviously necessary.
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 has 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 prosecutor 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.
50. I accordingly agree that the appeal should be allowed.
LORD RODGER OF EARLSFERRY
51. In 1996 the complainant began working for the appellant. In March 2000 she complained to the police that he had had consensual sexual intercourse with her on many occasions from July 1996 to September 1997 when she was between the ages of 13 and 15. It is agreed that these acts of intercourse would have constituted offences against section 6(1) of the Sexual Offences Act 1956 ("the 1956 Act") and would have been punishable with a maximum sentence of two years' imprisonment. Section 37(1) and (2) of that Act, together with paragraph 10 of Part I of Schedule 2, provide, however, that such offences are to be prosecuted on indictment and that "a prosecution may not be commenced more than 12 months after the offence charged". Since the complainant did not approach the police to report the matter until more than two years after the end of the period in which the alleged conduct took place, it was impossible for the appellant to be prosecuted under section 6(1).
52. Under section 14 of the 1956 Act it was an offence, punishable with a maximum sentence of 10 years' imprisonment, to make an indecent assault on a woman, including a girl. Schedule 2 prescribes no time-limit for commencing the prosecution of such offences. In this case, therefore, the Crown prosecutor, realising that a prosecution under section 6 was barred by the lapse of time, deliberately chose to prosecute the appellant under section 14 in order to avoid the time-bar. Counts 1 to 3 on the indictment against the appellant, which related to acts of sexual intercourse, were specimen counts of indecent assault contrary to section 14. Count 4, which related to distinct episodes of oral sex, was a specimen count of indecency with a child, contrary to section 1(1) of the Indecency with Children Act 1960. That offence is punishable with a maximum of 10 years' imprisonment. In the result, on conviction the appellant was sentenced to concurrent terms of 18 months' imprisonment on counts 1 and 2, to a consecutive term of 18 months' imprisonment on count 3 and to a consecutive term of 12 months' imprisonment, reduced on appeal to nine months, on count 4. No issue arises in relation to count 4, but the appellant contends that it was an abuse of process for the Crown to indict him on counts 1 to 3 when a prosecution under section 6 of the 1956 Act would have been time-barred.