W R, R v

Where a prosecution for unlawful sexual intercourse was time-barred under the former statutory regime, an alternative charge of indecent assault could not be commenced where its substance was that same sexual intercourse. This followed from statutory construction, not from any requirement to show oppressive or manipulative conduct by the prosecution.

The inclusion of a primary rape count did not validate the otherwise impermissible alternative count after the jury had acquitted of rape. The alternative count had to be assessed as if it stood alone.

The appellant was convicted at Bristol Crown Court of three counts of indecent assault and acquitted of rape. He appealed, with leave, against the conviction on count 1/4 only.

That count alleged indecent assault as an alternative to the rape count. It was brought more than 12 months after the alleged conduct. The issue was whether the presence of a primary rape count, of which the appellant was acquitted, prevented the rule in R v J [2004] UKHL 42 from invalidating the alternative count.

1. Appeal allowed. The conviction on count 1/4 for indecent assault was unsafe because the prosecution was commenced after the applicable 12-month limitation period.

2. The court held that R v J [2004] UKHL 42 governed the case. Its reasoning rested on the construction of the former statutory provisions. It did not depend on prosecutorial bad faith, manipulation or oppression.

3. Under that construction, where a prosecution for unlawful sexual intercourse could not be commenced after 12 months, it was also impermissible to commence a prosecution for indecent assault where the facts relied on were in substance unlawful sexual intercourse.

4. The rape count did not create a material distinction. Following the acquittal, the absence of proof of lack of consent had to be treated as established at the lowest. Count 1/4 existed only to cover consent or a failure to prove lack of consent, and its validity had to be assessed as a standalone count. The Crown could not be placed in a better position merely because it had included a rape count on the indictment.

5. The 16-month sentence on count 1/4 was quashed. The total sentence was substituted with one of 12 months' imprisonment. The ancillary orders were unaffected.

• Court of Appeal (Criminal Division): Allowed the appeal against the conviction for indecent assault on count 1/4, quashed the related sentence, and substituted a total sentence of 12 months' imprisonment.

• Crown Court at Bristol: The appellant was convicted on 26 January 2004 of three counts of indecent assault and was acquitted of rape. On 3 February 2004 he received a total sentence of 20 months' imprisonment.