R v Jones (Michael)

JurisdictionUK Non-devolved
JudgeLORD RODGER OF EARLSFERRY,LORD STEYN,LORD CLYDE,THE BARONESS HALE OF RICHMOND,LORD BINGHAM OF CORNHILL
Judgment Date14 October 2004
Neutral Citation[2004] UKHL 42
CourtHouse of Lords
Date14 October 2004
Regina
and
J
(Appellant)

(On Appeal from the Court of Appeal (Criminal Division))

[2004] UKHL 42

The Appellate Committee comprised:

Lord Bingham of Cornhill

Lord Steyn

Lord Clyde

Lord Rodger of Earlsferry

Baroness Hale of Richmond

HOUSE OF LORDS

LORD BINGHAM OF CORNHILL

My Lords,

1

The point of law of general public importance certified by the Court of Appeal (Criminal Division) under section 33(2) of the Criminal Appeal Act 1968 in this case is:

"Whether it is an abuse of process for the Crown to prosecute a charge of indecent assault under section 14(1) of the Sexual Offences Act 1956 in circumstances where the conduct upon which that charge is based is an act of unlawful sexual intercourse with a girl under the age of 16 in respect of which no prosecution may be commenced under section 6(1) of the 1956 Act by virtue of section 37(2) of, and Schedule 2 to, the 1956 Act".

The Court of Appeal resolved that question in favour of the Crown and adversely to J, who appeals to the House against that decision.

2

In 1996–1997, when he was aged 35-37 and she was aged 13-14, J repeatedly had sexual intercourse with C and at his request she repeatedly had oral intercourse with him. He ran a business on land rented from C's father and she began working for him at the week-end and during the school holidays. He took this opportunity to cultivate a sexual relationship with her which culminated in the conduct already mentioned. J's conduct was plainly criminal. It was made the more serious by the disparity between the respective ages of himself and C; by his standing as a middle-aged man, an associate of C's father and her employer; by the steps which he took to groom C and, it seems, record on video their sexual activity; by the frequency of that activity; and by the period over which it continued.

3

C did not reveal what had happened between her and J until some three years later, when she was seventeen. By that time, as will be seen, it was too late to prosecute J under section 6 of the 1956 Act, either summarily or on indictment, for having unlawful sexual intercourse with a girl under the age of 16. An indictment was accordingly preferred containing four counts. The first three of these were specimen counts charging J with indecently assaulting C on dates in 1996 and 1997, contrary to section 14(1) of the 1956 Act. The fourth was a specimen count charging him with committing an act of gross indecency with a child in 1996, contrary to section 1(1) of the Indecency with Children Act 1960. The prosecution's written case summary at the trial made plain that the first three counts were specimen counts relating to sexual intercourse between J and C and that the fourth count was a specimen count relating to oral sex. When J appeared before His Honour Judge Hume-Jones in the Crown Court at Taunton in October 2001, application was made to stay the prosecution on the ground that to charge indecent assault in such circumstances was a device to circumvent the time limit on a prosecution for unlawful sexual intercourse and so amounted to an abuse of the process of the court. The judge rejected that application, ruling (in written reasons given later) that there was nothing to prevent the prosecution charging indecent assault in the circumstances. Directing the jury in due course on the first three counts, the judge said:

"the allegation is that the defendant had sexual intercourse with [C] when she was under 1685 there is no dispute that conduct such as that which is alleged is capable of constituting the offence of indecent assault …. In law, a girl under the… age of 16, cannot consent to an indecent assault…. The sole issue for you on these counts is this. Are you satisfied, so that you are sure,… that the defendant had sexual intercourse with [C]?"

By a majority, the jury convicted J on all four counts. He was sentenced to a total of three years' imprisonment on the first three counts and to 12 months' imprisonment consecutive on the fourth.

4

The Court of Appeal reduced J's sentence on the fourth count from 12 months' imprisonment to nine, acceding to a submission that he need not be a long-term prisoner. But the lawfulness of his conviction on the fourth count was not challenged in the Court of Appeal or before the House. It related to an act of oral intercourse, which does not fall within the definition of sexual intercourse in section 44 of the Act. It was of course an act incidental to the sexual relationship which existed between J and C, but it was an independent act, not inherent in or forming part of the sexual intercourse which took place between them. The charge under count 4 was properly laid and there is no reason to doubt that J was properly convicted. That count need not be further considered.

5

J's challenge in the Court of Appeal to his convictions on the first three counts rested on essentially the same abuse of process argument as the judge had rejected. The Court of Appeal (Potter LJ, Butterfield J and Judge Paget QC) also rejected it: [2002] EWCA Crim 2983, [2003] 1 WLR 1590. Having reviewed a body of authority relied on by one or other party, the court concluded, at pp1601–1603:

(1) that "the substantive offence of indecent assault is plainly apt to cover the act of penile penetration involved in sexual intercourse and of the various acts of fondling and foreplay which precede it" (para 31);

(2) that selection of an appropriate charge generally lies within the discretion and responsibility of the Crown (para 32);

(3) that the court nonetheless reserves to itself a residual and discretionary power to stay criminal proceedings as an abuse of process (para 33);

(4) that the prosecution in this case had not been guilty of conduct which could fairly be characterised as a misuse of the process of the court (para 38); and

(5) that it was not necessarily an abuse of process to bring a charge of indecent assault after the expiry of 12 months in respect of facts which would justify a charge under section 6 of the 1956 Act (para 38).

Giving the judgment of the court, Potter LJ said, at p 1603, para 39:

"39 We accept that the defendant is thereby deprived of a protection provided by the law in respect of prosecutions under section 6. However, we do not accept that it arises from misuse of process by the prosecution, so much as delay on the part of the complainant. The question is therefore whether, as a general proposition, so to proceed involves an affront to the public conscience, is necessarily contrary to the public interest, or undermines the integrity of the criminal justice system. In our view the answer to that question is "No" it all depends upon the circumstances of the individual case. It must frequently be the position, as in this case, that the facts do not come to light until after the expiry of 12 months, upon the complaint of a victim who, free of the influence of the defendant, is able to appreciate the degree to which their relationship was an abusive one. The fact that Parliament may have thought fit to provide for a general limitation period in respect of prosecutions under section 6, based, it must be assumed, on the principle that stale complaints are inherently likely to give rise to evidential difficulty, does not in our view preclude a responsible prosecutor from taking the view that, in the particular circumstances, a fair trial is possible and that it is conducive, and not inimical, to justice to bring a different charge not subject to such a period of limitation."

Then, having referred to the facts and observed that the counts laid could not and should not be regarded as a misuse of the process of the court or an affront to justice (para 40), Potter LJ continued, at p 1604, para 41:

"41 Nothing which we have said should be taken as an encouragement to prosecutors to bring defendants to court on charges of indecent assault in cases where, were the time-bar not applicable, the charge would have been laid under section 6. While the decision to do so will depend upon all the circumstances of the case, it seems to us that the decision to prosecute should depend, not simply upon the fact that the offence or offences have not come to light till after the expiry of a period of 12 months, but upon the presence of some unusual or aggravating feature sufficient to justify the avoidance of the limitation period provided for under section 6. Equally, nothing we have said should detract from the now settled practice of this court in treating two years' imprisonment as the maximum sentence appropriate to a charge of indecent assault brought in circumstances where, but for the expiry of the 12-month time limit, the charge would appropriately have been laid under section 6."

6

At the heart of this appeal lie three statutory provisions to which reference must now be made. The first of these is section 6(1) of the 1956 Act which, as amended and so far as material, provided:

"Intercourse with girl between 13 and 16

(1) It is an offence, subject to the exceptions mentioned in this section, for a man to have unlawful sexual intercourse with a girl … under the age of 16."

The subsection must be read with section 5 which made it an offence, and a much more serious offence, to have sexual intercourse with a girl under the age of 13. Section 6 was directed to the proscription of consensual intercourse with under-age girls, since intercourse alleged to be non-consensual would be prosecuted as rape. As Mr Perry, for the Crown, has helpfully and painstakingly demonstrated, section 6(1) was (until repealed by Schedule 7 to the Sexual Offences Act 2003) the latest in a series of statutory provisions directed to that end, although the age below which a girl was protected has been increased over the centuries from 10 ( 18 Eliz 1 cap 7,...

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