Cottrell, R v

Under the former statutory time limit, a distinct count of indecent assault based solely on sexual intercourse with a girl under 16 could not be instituted after the limitation period. However, where rape had been properly charged, a jury could consider indecent assault as an alternative verdict under section 6(3) without the institution of separate proceedings.

An extension of time to appeal will ordinarily be refused where a conviction followed a fair trial and the sole ground is a later change or correction in the law. The applicant must show substantial injustice beyond that change. The Criminal Cases Review Commission must address and give proper weight to that established appellate practice when considering a reference, while retaining its independent fact-specific judgment.

Steven Cottrell was convicted at Lewes Crown Court of two counts of indecent assault on a girl under 16. He sought leave to appeal nearly three years out of time after R v J [2005] 1 AC 562 held that the former practice of charging indecent assault based solely on out-of-time sexual intercourse was impermissible.

Joseph Fletcher was convicted at Derby Crown Court of several indecent assaults. His conviction on count 11 followed the addition of an indecent-assault count as an alternative to rape. Following a reference by the Criminal Cases Review Commission, the Court considered whether that conviction was barred, whether Cottrell should receive an extension of time, and how the Commission should approach change-of-law cases.

1. Fletcher’s appeal against conviction on count 11 was allowed. The court was bound by R v WR [2005] EWCA Crim 1907. The former statutory time bar prevented the addition of a distinct count of indecent assault where that count was based only on sexual intercourse with an underage girl. The fact that the count was added as an alternative to rape did not avoid that prohibition.

2. The court maintained the distinction drawn in R v Timmins [2006] 1 CAR 18. Where rape has been properly charged, a jury may consider indecent assault as an alternative verdict under section 6(3) of the Criminal Law Act 1967 without adding a separate count. That procedure does not commence proceedings for the lesser offence. The court declined to revisit the wider coherence of the authorities and held that R v WR and R v Timmins should each be followed in their respective factual settings.

3. Cottrell’s application for an extension of time and leave to appeal was refused. In a change-of-law case, an applicant must ordinarily identify substantial injustice beyond the later correction or development of the law. Cottrell’s trial had been fair and his only proposed ground arose from the later decision in R v J [2005] 1 AC 562. On the facts, the complainant had also been subjected to indecent conduct separate from intercourse, and refusal of an extension caused no injustice.

4. The Criminal Cases Review Commission is independent, but it must address and give proper weight to the Court of Appeal’s established practice on finality in change-of-law cases. A conviction should not normally be referred merely because the law has later changed. After considering that practice, the Commission must nevertheless exercise its own independent and fact-specific judgment on whether to make a reference.

• Court of Appeal (Criminal Division): In [2007] EWCA Crim 2016, Fletcher’s appeal against his conviction on count 11 was allowed. Cottrell’s application for an extension of time and leave to appeal was refused.
• Court of Appeal (Criminal Division): Fletcher’s earlier appeal against conviction was dismissed on 28 October 2005. No point based on R v J [2005] 1 AC 562 was taken.
• Derby Crown Court: Fletcher was convicted on 24 October 2003 of seven counts of indecent assault.
• Lewes Crown Court: Cottrell was convicted on 8 August 2003 of two counts of indecent assault.