Hessay, R v

Where conduct would properly have been charged as unlawful sexual intercourse with a girl under 16, a statutory time bar cannot be avoided by charging the conduct instead as indecent assault under Sexual Offences Act 1956. Following R v J [2004] UKHL 42, such a prosecution under section 14(1) is precluded. A conviction founded on that impermissible count must be quashed.

The appellant was convicted at Derby Crown Court on 29 November 2019 of nine sexual-offence counts. He appealed only his conviction on Count 7, a multiple-incident count of indecent assault contrary to section 14(1) of the Sexual Offences Act 1956.

The count alleged vaginal intercourse on at least ten occasions between December 1996 and December 1998, when the complainant was aged 14 or 15. The conduct would otherwise have been charged under section 6(1), but that offence was subject to the 12-month prosecution limit in section 37(2) and paragraph 10 of Schedule 2. The issue was whether section 14(1) could lawfully be used in those circumstances.

1. Appeal allowed. The Court quashed the conviction on Count 7. The Crown accepted that the count should not have appeared on the indictment or been left to the jury.
2. The alleged conduct consisted of repeated vaginal intercourse with a complainant aged 14 or 15. On the court’s analysis, it would have been charged as unlawful sexual intercourse with a girl under 16 under section 6(1) of the Sexual Offences Act 1956.
3. That offence was subject to the time restriction in section 37(2) and paragraph 10 of Schedule 2. A prosecution could not be commenced more than 12 months after the offence charged. The expiry of that period explained why the Crown had instead charged indecent assault under section 14(1).
4. However, applying R v J [2004] UKHL 42, the court held that the Crown was precluded from prosecuting the appellant under section 14(1) in those circumstances. The alternative charge could not be used to overcome the statutory time limit applicable to the offence that the alleged conduct constituted.
5. Count 7 was therefore legally unavailable. Its conviction was quashed.

• Court of Appeal (Criminal Division): In [2020] EWCA Crim 467, the court allowed the appeal against Count 7 and quashed that conviction.
• Derby Crown Court: On 29 November 2019, the appellant was convicted of nine sexual-offence counts, including Count 7.