W R, R v

J U D G M E N T

1. LORD JUSTICE MANCE: On 26th January 2004 in the Crown Court at Bristol before the Recorder of Bristol, His Honour Judge Crowther QC, the appellant was convicted of three counts of indecent assault on a female: counts 1/1, 1/2 and 1/4. He was found not guilty of one count of rape, count 1/3, which was a primary alternative to count 1/4. He was sentenced on 3rd February 2004 before the same court on count 1/1 to six months' imprisonment, on count 1/2 to eight months' imprisonment concurrent, and on count 1/4 to 16 months' imprisonment concurrent. He was also sentenced to four months' imprisonment consecutive in relation to a indecent assault, count 2/3, unrelated to this appeal, to which he had pleaded guilty. The total sentence was thus 20 months' imprisonment.

2. He now appeals against conviction by leave of the single judge who granted an extension of time of 44 weeks.

3. The appeal is limited to count 1/4. In the circumstances in which it arises we need not say anything in detail about the facts, save that the complainant alleged in respect of count 1/1 fondling of her breasts, in respect of count 1/2 digital penetration and in respect of counts 1/3 and 1/4 sexual intercourse in the course a relationship in each case which commenced when she was only 13 years old. The appellant was at the time some 28 years old.

4. The appellant's case involved a denial of all the allegations and a denial of any form of sexual relationship.

5. The prosecution was brought in respect of counts 1/1, 1/2 and 1/4 more than 12 months after the offences charged. The position under the Sexual Offences Act 1956 section 37(2) and Schedule 2 paragraphs 10(a) and (b) is that a prosecution for an offence of unlawful sexual intercourse may not be commenced more than 12 months after the offence charged.

6. Until the decision of the House of Lords in R v J [2004] UKHL 42 it was the practice of prosecuting authorities, and a practice accepted in this Court, including in the Court of Appeal in J itself, to prosecute a charge of indecent assault, in circumstances where the facts consisted in reality of unlawful sexual intercourse but it was too late to prosecute the latter charge. In J the House of Lords held by a majority of four to one that this was not permissible.

7. The issue in the present case, which has been argued by Mr Fuller for the appellant and Mr Mooney for the Crown, is whether it makes any difference to the application of J that the prosecuting authorities were able to put on the indictment as a primary charge one of rape, a charge of which the jury in fact acquitted.

8. Mr Fuller submits it makes no difference at all. The presence of a charge of rape, however justified it may have appeared to include it on the indictment and to prosecute it to trial, cannot justify the alternative count of indecent assault in circumstances where the essence of the facts relied upon for indecent assault was unlawful sexual intercourse in respect of which a prosecution could not be commenced because the 12 month time limit had expired.

9. Mr Mooney for the Crown submits that it makes all the difference and advances before us an argument that J addresses what he described as situations of oppressive prosecution. It does not address situations where there is a sufficiently plausible charge of rape to justify that being pursued and where the charge of indecent assault is, as he puts it, effectively parasitic to and not independent of the charge of rape. He seeks to raise the possibility of defendants, if this appeal succeeds, defending rape charges by asserting with impunity grooming and unlawful sexual intercourse where charges are, perhaps because of the grooming, only brought after the 12 month time limit for a charge of unlawful sexual intercourse.

10. Those arguments do not appear to us to bear on the central issue in this case. Happily Parliament has now abolished the time limit of 12 months so that the present issue is only of significance in respect of offences -- and we acknowledge that there may be many coming to light, or still to come to light -- committed prior to, we understand, April 2003. Of course in a number of cases there may be alternative sexual conduct which could justify a charge as there was in the present case, although not of the same seriousness as the conduct the subject of the jury's conviction on count 1/4.

11. As we say the real issue before us is not that which counsel for the Crown identifies. It is whether J governs this case. The reasoning in J is based on statutory construction. It is not based on any conception that the prosecution had acted deviously, or in an underhand way, or had been guilty of manipulative conduct: see paragraph 14 of Lord Bingham's speech. As a matter of construction we are faced with the straightforward situation that, under the legislation in force at the relevant time for the purposes of the present appeal, the prosecution for unlawful sexual intercourse could not be commenced. The House of Lords has held that that means that it was also impermissible to commence a prosecution for indecent assault.

12. We have before us an indictment which charges, firstly, as count 1/3 rape and, secondly, as count 1/4 and as an alternative, indecent assault. On the face of it, that is clearly a prosecution commenced in respect of indecent assault more than 12 months after the offence charged was committed.

13. It seems to us that it is no distinction at all from J that the indictment contained a count of rape. Had it been clear that there was sexual intercourse with consent, or that there was sexual intercourse in respect of which lack of consent could not be proved, then under J there could have been no question of simply charging this appellant with indecent assault after 12 months. The jury's verdict here establishes the position as if that had all long been the case. Lack of consent could not be proved, at the very lowest. The alternative count, 1/4, was only added to cover the possibility that consent existed, or that lack of consent could not be proved. Its legitimacy or otherwise should, in our view, be viewed as if it stood alone. The Crown can be in no better position, and the defendant in no worse, merely because of an addition on the indictment of a charge of rape on which the jury acquitted. The legitimacy or otherwise of including a conviction for indecent assault cannot depend upon whether the prosecuting authorities included a primary and more serious charge of rape, or had good grounds for doing so on the indictment.

14. In those circumstances, this appeal in respect of count 1/4 must succeed. It follows that the sentence passed on that count of 16 months' imprisonment must be quashed and the total sentence imposed by the judge, which was 20 months' imprisonment, must be substituted with a sentence of 12 months' imprisonment.

15. LORD JUSTICE MANCE: What about the ancillary orders? He was disqualified from working with children indefinitely.

16. MR MOONEY: My Lord, my learned friend and I have discussed the ancillary orders, none of which are affected by your Lordship's finding.

17. LORD JUSTICE MANCE: Thank you very much indeed.