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

Where a statute creates a specific offence and imposes a time limit for prosecuting it, the prosecution cannot evade that restriction by charging the same conduct under a more general offence carrying no time limit. Accordingly, after the statutory period for prosecuting unlawful sexual intercourse with a girl under 16 had expired, the same act of intercourse alone could not be prosecuted as indecent assault.

The restriction does not protect independent sexual acts which are neither inherent in nor part of the time-barred intercourse. Such acts may support separate charges. Prosecutorial discretion over charge selection remains subject to the statute and cannot be used to defeat Parliament’s clear intention.

The appellant had repeatedly engaged in vaginal and oral sexual activity with a girl aged between 13 and 15. She reported the conduct more than 12 months later. Prosecution for unlawful sexual intercourse under section 6(1) of the Sexual Offences Act 1956 was therefore barred by section 37(2) and Schedule 2.

The appellant was instead convicted of three specimen counts of indecent assault under section 14(1), based solely on vaginal intercourse, and one count under section 1(1) of the Indecency with Children Act 1960, based on oral intercourse. The Crown Court refused to stay the prosecution. The Court of Appeal dismissed the challenge to the first three convictions in [2002] EWCA Crim 2983, while reducing the sentence on the fourth count.

The central issue was whether the statutory time limit could be avoided by prosecuting the acts of vaginal intercourse as indecent assaults.

1. Appeal allowed by a majority of four to one. Lord Bingham of Cornhill, Lord Steyn, Lord Clyde and Lord Rodger of Earlsferry held that counts 1–3 should have been stayed or dismissed. The convictions on those counts were quashed. The conviction concerning the independent act of oral intercourse was unaffected.
2. Lord Bingham held that the court must give full and fair effect to every clear provision of a statute. Parliament had specifically criminalised sexual intercourse with a girl under 16 in section 6(1) of the Sexual Offences Act 1956, while providing through section 37(2) and Schedule 2 that prosecution could not commence more than 12 months after the offence. Permitting precisely the same conduct to be prosecuted without limit under section 14(1) would deprive that protection of all meaningful effect.
3. Lord Rodger reached the same result by applying the principle that general words do not derogate from a specific statutory régime. The Crown could not do indirectly what the statute forbade it to do directly. Construing section 14 literally so as to evade the time bar would amount to a fraud upon the statute.
4. Lord Steyn held additionally that a prosecutor, as a public official, must act fairly and within the law. A decision deliberately to frame a section 14 charge solely to circumvent the section 6 time limit was beyond the prosecutor’s powers, even though taken in good faith and in the perceived public interest. Lord Clyde similarly regarded the course adopted as an unlawful misapplication of the statute.
5. The majority confined the ruling to cases where the time limit had expired and the prosecution relied only on the act of sexual intercourse. Independent acts which were neither inherent in nor part of the intercourse could properly support separate charges.
6. Baroness Hale dissented. She considered that intercourse fell within the statutory offence of indecent assault, that the time limit attached expressly to section 6 alone, and that the incoherent legislative history disclosed no implication excluding section 14. In her view the prosecution was neither abusive nor beyond the prosecutor’s competence, and she would have dismissed the appeal.

1. House of Lords: By a majority of four to one, allowed the appeal and quashed the convictions on the first three counts. The fourth conviction was not challenged.
2. Court of Appeal (Criminal Division): In [2002] EWCA Crim 2983, reported at [2003] 1 WLR 1590, rejected the abuse-of-process challenge. It reduced the sentence on count 4 from 12 months to nine months.
3. Crown Court at Taunton: Refused to stay the prosecution, and the jury convicted the appellant on all four counts.