R v Jones (Michael)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Potter,LORD JUSTICE POTTER |
| Judgment Date | 20 December 2002 |
| Neutral Citation | [2002] EWCA Crim 2983 |
| Docket Number | Case No: 200106619 W4 |
| Court | Court of Appeal (Criminal Division) |
| Date | 20 December 2002 |
[2002] EWCA Crim 2983
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM TAUNTON CROWN COURT
(HIS HONOUR JUDGE HUME-J)
Lord Justice Potter
Mr Justice Butterfield and
His Honour Judge Paget QC
Case No: 200106619 W4
Martin Meeke QC and Terence Holder for the appellant
Ian Glen QC and Alan Large (instructed by Crown Prosecution Service) for the respondent
This appeal raises the question whether it is an abuse of process for the prosecution to bring and pursue a charge of indecent assault against a defendant in circumstances where the conduct upon which the charge is based is essentially that of unlawful sexual intercourse with a girl under 16, and the 12-month limitation period in respect of the latter offence has elapsed.
That question arose and was answered in the negative by HH Judge Hume-Jones when he refused an application made on behalf of the appellant that his trial on counts 1 to 3 of the indictment laid against him be stayed as an abuse of process. The trial took place in the Crown Court at Taunton in November 2001 upon three counts of Indecent Assault (counts 1�3) and one of Indecency with a child (count 4). The application having been refused, the trial proceeded and the appellant was convicted. On 1 November 2001 he was sentenced to concurrent terms of 18 months' imprisonment upon counts 1 and 2, and 18 months' imprisonment consecutive upon count 3. A sentence of 12 months' imprisonment was imposed upon count 4, consecutive to the other counts. The total sentence was thus one of 4 years' imprisonment. The appellant was also required to comply with the provisions of s.2 of the Sex Offenders Act 1997 (Notification to the Police) indefinitely.
The appellant appeals against his conviction upon counts 1�3 pursuant to the certificate of the trial judge that the case was fit for appeal. His application for leave to appeal against sentence was referred by the Registrar to the full court.
The short facts are as follows. The complainant, C, was born on 28 September 1982; the appellant was born on 16 August 1960. Both lived in a village in Somerset and their families were close friends. The appellant began a business making horse boxes and trailers at a unit in the village rented from C's father. Shortly afterwards, C then aged 13, started working for the appellant on Saturdays and in the holidays. In March 2000, C, by now aged 17 years and 6 months, complained to the police of the appellant's conduct, which complaint gave rise to the charges at his trial. C made a formal statement on 1 August 2000. It was her complaint, and the prosecution case, that the appellant regularly had consensual sexual intercourse with her between July 1996, when she was aged 13, and September 1997, when she was aged 15. Those acts were the subject of counts 1�3 in the indictment. In addition, it was alleged that when she was aged 13, oral sexual intercourse had taken place (count 4). The defence of the appellant at trial was that none of the alleged sexual conduct ever occurred, the allegations being the product of fantasy on the part of C.
The judge ruled upon the abuse of process application before the jury was sworn. Following his ruling, the case proceeded without incident and the appellant was convicted on each count by a majority verdict of 10 to 2.
Before the judge, and in this court, the argument for the appellant ran as follows. There is a time limit in respect of prosecutions under s.6(1) of the Sexual Offences Act 1956 ("the 1956 Act") which provides that it is an offence, subject to the exceptions mentioned in s.6 (which are not relevant in this case), for a man to have unlawful sexual intercourse with a girl under the age of sixteen. S.37(1)and(2) bring into effect the provisions of Schedule 2, paragraphs 10(a) and (b) which provide that in respect of an offence under s.6, or an attempt to commit such offence: "On indictment; a prosecution may not be commenced more than twelve months after the offence charged". That being so it is submitted that, to prosecute a defendant upon charges of indecent assault in respect of conduct which amounts to the offence of unlawful sexual intercourse and lacks any aggravating or additional elements worthy of a separate charge of indecent assault, is an abuse of process, in that it amounts to a misuse of the process of the court so as to deprive the defendant of a protection provided by the law and thereby circumvents the policy and intention of Parliament to place a time bar upon stale prosecutions for unlawful sexual intercourse with girls under 16.
The judge was referred to two Commonwealth authorities in support of the defence submission: R v Blight 22 NZLR 837, a decision of the New Zealand Court of Appeal, and Sariswati v The Queen (1990�91) 172 CLR1, a decision of the High Court of Australia on appeal from the Supreme Court of New South Wales. The judge was not referred to any decision of this court directly concerned with the point upon an appeal against conviction, and it appears there is none. However, he was referred to observations made in the cases of R v Hinton (1995) 16 Cr App R(S) and R v Rahim C.A. 1999 (No 99/1125/24), in the course respectively of an appeal against sentence and an appeal against conviction on a different point. In both cases, the court referred without criticism or adverse comment to the practice of prosecuting a defendant for indecent assault in respect of conduct amounting to unlawful sexual intercourse where the limitation period for that offence had expired.
The judge ruled as follows:
"It seems to me that this is just one more of the anomalies thrown up by the legislation relating to sexual offences. There is nothing to prevent the prosecution charging indecent assault in these circumstances.
I asked why there was the statute bar in unlawful sexual intercourse and it was agreed that the purpose was to obviate the possibility of difficulties of memory loss of the obtaining of evidence. However, that applies equally to indecent assault and rape. Furthermore, nowadays many cases involving sexual offences are based on facts many years old and there is authority stating that time alone is not a ground for abuse of process.
Have the prosecution manipulated or misused the system? What is the cause of the delay here? The delay was in the complainant not reporting it, not in the prosecution failing to prosecute it.
There has been no suggestion of any prejudice to the defendant.
For all these reasons I refused the application."
The offence of Indecent Assault on a woman is to be found in s.14(1) of the Act, which provides that it is an offence, subject to the exception mentioned in sub-section 3 of the section (invalid marriage to a girl under the age of sixteen) for a person to make an indecent assault on a woman. Sub-section (2) provides that a girl under the age of sixteen cannot in law give any consent which would prevent an act being an assault for the purposes of s.14.
S.6 and s.14 are overlapping offences. Because of s.14(2), a charge of unlawful sexual intercourse with a girl under sixteen necessarily includes an allegation of indecent assault on the same girl. In such a case, where there is clear evidence of indecent assault falling short of the full offence of intercourse, the judge should leave the lesser offence to the jury: see R v McCormack [1969] 53 Cr App R 514.
This gives rise to an anomaly in respect of the "young man's defence" contained in s.6(3) of the Act which provides that a man is not guilty of an offence under s.6 if, being under the age of 24 and not having previously been charged with a like offence, he believes the girl to be of the age of sixteen or over, and has reasonable cause for his belief. This caused the Court to comment in McCormack at p.516:
"As has been held many times, the statutory defence now contained in section 6(3) of the Sexual Offences Act 1956 is applicable only to the full offence; and, in spite of criticisms on many occasions in this Court of that remarkable anomaly, the law was re-enacted by Parliament in the old form as recently as 1956."
That anomaly has recently been alleviated by the decision of the House of Lords in Regina v K [2001] UKHL 1, [2001] 3WLR 471, in which it was held that, where a girl, the subject of an indecent assault, is in fact under the age of sixteen, the presumption of mens rea requires proof of the absence of genuine belief on the part of the accused as to the age of the girl being 16 or over. In that case, Lord Bingham set out the tortuous legal history of s.14 and, at paragraphs 10 and 15 of his speech, pointed out that the anomaly created by s.6 and s.14 of the 1956 Act, was in turn a perpetuation of that created by the predecessors of those sections, namely s.5 of the Criminal Law Amendment Act 1885 and s.52 of the Offences Against the Person Act 1861: see the decision in R v Forde [1923] 2 KB 400. Lord Bingham observed:
"Asked to suggest any reason why it could rationally have been intended to provide the statutory defence where full intercourse took place and no defence based on belief as to the child's age when intercourse was charged as indecent assault, leading counsel for the Crown in the present appeal was unable to assist, as his predecessor in R v Forde had been in 1923."
In that situation, their Lordships had no hesitation in applying
"the presumption that mens rea is required in the case of all statutory crimes, a presumption operating as a constitutional principle and not easily displaced by a...
To continue reading
Request your trial
-
R v Jones (Michael)
...of Cornhill Lord Steyn Lord Clyde Lord Rodger of Earlsferry Baroness Hale of Richmond HOUSE OF LORDS Session 2003-04 on appeal from: [2002] EWCA Crim 2983 OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE LORD BINGHAM OF CORNHILL My Lords, 1 The point of law of general public import......
-
Belmont Park Investments Pty Ltd and Others v BNY Corporate Trustee Services Ltd and another (HM Revenue and Customs and another intervening)
... ... (Instructed by Weil, Gotshal & Manges) ... (30th Respondent) ... 1st to 29th Respondents ... Richard Salter QC ... Jonathan Davies-Jones ... (Instructed by Lawrence Graham LLP) ... Mark Howard QC ... Stephen Midwinter ... (Instructed by Hogan Lovells International LLP) ... ...
-
Attorney General's Reference No. 39 of 2003 (Michael Anthony Wheeler)
...correct. 42 He particularly referred us to the case Horobin with which we have already dealt. He next invited our attention to Jones [2003] 2 Cr. App. R. 8 at page 134. This was a case in which the court reduced a sentence of 4 years imprisonment to 3 years and 9 months for offences of inde......
- R (British Bankers Association) v Financial Services Authority