R v. J

The House considered whether it was an abuse of process, or otherwise unlawful, for the Crown to prosecute a man for indecent assault under section 14(1) of the Sexual Offences Act 1956 where the sole conduct relied on was unlawful sexual intercourse with a girl under 16 years and a prosecution under section 6(1) was time‑barred by section 37(2) and paragraph 10(a) of Schedule 2. The court held that where the evidence relied on is only unlawful sexual intercourse with a girl under 16, and a prosecution under section 6(1) could not be commenced because of the 12‑month limitation, it is impermissible to prosecute that conduct under section 14(1).

The decision rested on statutory construction (giving effect to the clear time limit in paragraph 10(a) of Schedule 2 and section 37) and on public law limits to prosecutorial power: the Crown may not, by framing charges under a broader provision, evade a specific statutory restriction. The convictions founded solely on sexual intercourse were quashed. Count 4, based on distinct acts of oral intercourse, was not challenged.

This appeal arose from prosecutions for sexual offences committed by the appellant against a girl aged 13–14. The complainant reported the conduct some years later so that prosecution under section 6(1) of the Sexual Offences Act 1956 (unlawful sexual intercourse with a girl under 16) was time‑barred by the 12‑month limit in section 37(2) and paragraph 10(a) of Schedule 2. The Crown instead indicted three specimen counts of indecent assault under section 14(1) which, on the prosecution case and the judge's direction, were based on the acts of vaginal intercourse. A fourth count, properly based on separate acts of oral intercourse, was also charged and remained unchallenged.

The appellant applied for a stay on abuse of process grounds in the Crown Court, arguing the section 14 charges were a device to circumvent the section 6 time‑bar. The trial judge and the Court of Appeal rejected that submission. The Court of Appeal certified a point of law of public importance which reached the House of Lords.

Issues framed by the House included: (i) whether charging under section 14 what was in substance conduct falling within section 6 where the section 6 prosecution was time‑barred amounted to an abuse of process; (ii) whether, on statutory construction, section 14 could permissibly be used to prosecute conduct that section 6 and Schedule 2 expressly precluded as time‑barred; and (iii) whether such prosecutorial practice was ultra vires public law action by the Crown Prosecution Service.

The majority (Lords Bingham, Steyn, Clyde and Rodger) answered that it was impermissible. They reasoned that Parliament had attached a meaningful effect to the 12‑month bar in relation to section 6 offences and that construing section 14 so as to allow circumvention would render paragraph 10(a) nugatory. They also held that a prosecutorial policy of deliberately charging under section 14 to evade the statutory time‑limit would be unlawful and ultra vires. The House therefore allowed the appeal and quashed the convictions on the counts based solely on vaginal intercourse. Baroness Hale dissented, agreeing that a stay was not required on abuse grounds and taking a different view of statutory construction and prosecutorial competence. The judgment noted the recent legislative change (Sexual Offences Act 2003) which removed the time‑limit for future cases but emphasised that the 1956 provisions governed offences committed before that change.

Appeal allowed. The House held that it was impermissible, as a matter of statutory construction and public law, for the Crown to prosecute an indecent assault under section 14(1) of the Sexual Offences Act 1956 where the conduct relied on was only unlawful sexual intercourse with a girl under 16 and a prosecution under section 6(1) was precluded by the 12‑month time limit in section 37(2) and paragraph 10(a) of Schedule 2. Accordingly the convictions on the counts founded solely on intercourse were quashed.

On appeal from the Court of Appeal (Criminal Division) [2002] EWCA Crim 2983; the Court of Appeal had rejected the abuse of process challenge and upheld the convictions, and the House of Lords allowed the appeal and quashed the convictions on counts based solely on sexual intercourse.