The ‘Neck or Nothing’: Alternative Verdicts in Sexual Offences
| DOI | 10.1350/jcla.2008.72.4.298 |
| Date | 01 August 2008 |
| Published date | 01 August 2008 |
| Author | Andrew Beetham |
| Subject Matter | Comment |
COMMENT
The ‘Neck or Nothing’: Alternative Verdicts
in Sexual Offences*
Andrew Beetham†
Keywords Sexual offences; Alternative verdicts; Rv J(2004); Change of
law cases; Prosecution of alternative charges
In R v Cottrell,1the Court of Appeal again considered the broad issue of
alternative verdicts in relation to sexual offences. This is the most recent
episode in a series of cases in which this matter arose before the Court of
Appeal.2
The issue of alternative verdicts in relation to sexual offences which
were committed whilst the Sexual Offences Act 1956 was still in force is
very much a live one.3The criminal courts continue to deal with cases
governed by the 1956 Act4because sexual offences are rarely reported
promptly, if at all, and indeed it is sometimes years before complainants
make allegations of sexual offences.5
The catalyst for this series of cases was the judgment of the House of
Lords in R v J.
The judgment in Rv J
In R v J,6the House of Lords was asked to consider whether it was an
abuse of process for the Crown to prosecute a charge of indecent assault
in circumstances where the conduct was based upon an act of unlawful
sexual intercourse.7Their Lordships did not consider the issue of altern-
ative verdicts as such, but rather the narrow question of statutory
construction.
Early authorities, such as R vNeale8and R vButton,9held, obiter, that
the prosecution could bring such a charge. More recent authorities have
* ‘There . . . are certainly many cases where the interests of justice are not met unless
it is pointed out to the jury that they may convict of a lesser offence, or, thinking it
a case of “neck or nothing”, they may acquit altogether’: R v Parrott (1913) 8 Cr
App R 186 at 193, per Phillimore J).
† LLB MPhil Caseworker, Michael Purdon Solicitors, Newcastle-upon-Tyne. I would
like to thank Professor Alan Reed and John Turner for reading and commenting
upon the earlier drafts of this comment.
1 [2007] EWCA Crim 2016, [2007] 1 WLR 3262.
2 See R v WR [2005] EWCA Crim 1907, Rv Timmins [2005] EWCA Crim 2909,
[2006] 1 WLR 756 and R v Phillips [2007] EWCA Crim 485.
3 The Sexual Offences Act 1956 ceased to have effect on 1 May 2004 (Sexual
Offences Act 2003 (Commencement) Order 2004 (SI 2004/874)).
4R v Timmins [2005] EWCA Crim 2909, [2006] 1 WLR 756 at [3], per Calvert-
Smith J.
5R v J[2004] UKHL 42, [2005] 1 AC 562 at [54], per Lord Rodger of Earlsferry.
6 [2004] UKHL 42, [2005] 1 AC 562.
7 Ibid. at [1], per Lord Bingham of Cornhill.
8 (1844) 1 C & K 591.
9 (1848) 11 QB 929.
298 The Journal of Criminal Law (2008) 72 JCL 298–304
doi:1350/jcla.2008.72.4.511
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