Timmins, R v

A statutory time limit which prevents the commencement of a prosecution for unlawful sexual intercourse with a girl under 16 does not prevent a jury from returning indecent assault as an alternative verdict on a timely charge of rape. The prosecution is commenced for rape, not for the lesser offence. Leaving an alternative verdict does not itself commence proceedings for that offence.

The rule preventing the Crown from charging indecent assault to circumvent the limitation period remains effective. It does not displace the trial judge’s discretion to leave a proper lesser alternative where the evidence and fairness of the trial permit it.

The appellant was convicted at Carlisle Crown Court on 7 April 2005 of indecent assault, returned as an alternative verdict to a rape count. The complainant was under 16 at the time of the admitted sexual intercourse. The jury acquitted the appellant of the rape count and of the remaining counts.

The conduct pre-dated the Sexual Offences Act 2003 and was governed by the Sexual Offences Act 1956. A prosecution for unlawful sexual intercourse under section 6(1) would have been time-barred. The issue was whether the House of Lords decision in R v J (2005) 1 AC 562 prevented an alternative verdict of indecent assault on the rape charge.

1. Appeal dismissed. The trial judge correctly left indecent assault as an alternative verdict to the rape charge. The conviction was therefore safe.

2. The prohibition in paragraph 10(a) of Schedule 2 to the Sexual Offences Act 1956 prevents the Crown from commencing a prosecution for an offence subject to that limitation. Under R v J (2005) 1 AC 562, the Crown could not charge indecent assault under section 14 where it was using that charge to avoid the time limit applicable to the section 6 offence.

3. That principle did not govern this case. Proceedings had been commenced and continued on a charge of rape, for which there was no applicable limitation period. An alternative verdict of indecent assault did not amount to commencing proceedings for that lesser offence. No separate count was added, no plea was taken to that offence, and an acquittal would remain an acquittal on the rape count.

4. To treat proceedings for every possible lesser offence as commencing when the greater charge was laid would produce an untenable result. It would, for example, prevent a rape charge involving a girl under 16 after the expiry of the section 6 limitation period. Nor should Parliament’s provision for alternative verdicts in section 6(3) of the Criminal Law Act 1967 be defeated by the 1956 limitation concerning the commencement of proceedings for a different offence.

5. The decision whether to leave a lesser alternative remains a matter for the trial judge’s discretion. The court disapproved the reasoning in Cotton (1896) 60 J.P. 824, which had treated the time limit as preventing a lesser verdict on a rape charge. A deliberately unfounded rape charge brought solely to evade a time limit would instead breach the Code for Crown Prosecutors, amount to an abuse of process, and be vulnerable to dismissal.

• Court of Appeal (Criminal Division): Appeal against conviction dismissed: [2005] EWCA Crim 2909.
• Crown Court at Carlisle: On 7 April 2005, before HHJ Slinger QC and a jury, the appellant was convicted of indecent assault as an alternative verdict to rape.