The defendant was to have been accused of having unlawful sexual intercourse with a girl under 16. Proceedings could not be brought, because the allegation was more than a year old, and he was instead accused of indecent assault, but on the same facts. He appealed against his conviction, saying this was an abuse of process.
Held: The substance of the complaint was that, Parliament having stated that this particular offence should not be prosecuted after one year, the prosecution had done just that. Even though the Act might be anomolous, the courts were obliged to give it effect. A simple assumed freedom to prosecute would render the words of the Act ineffective. The prosecution was an abuse. Any such offence would necessarily also include other acts of indecent assault which could have been charged. (Baroness Hale Dissenting)
Lord Rodger of Earlsferry said: ‘The notion of a fraud upon an Act, acting in fraudem legis, is ancient. Although the outer limits of the doctrine remain notoriously difficult to define, this case at least falls squarely within its scope.’
Judges:
Lord Bingham of Cornhill, Lord Steyn, Lord Clyde, Lord Rodger of Earlsferry, Baroness Hale of Richmond
Citations:
[2004] UKHL 42, (2005) 1 AC 562, [2004] 3 WLR 1019, [2005] 1 Cr App R 19, [2005] 1 All ER 1
Links:
Statutes:
Jurisdiction:
England and Wales
Citing:
Cited – Faulkner v Talbot CACD 1981
An indecent assault includes an intentional touching of one person by another in circumstances of indecency, whether or not (where the person touched is a girl under 16) she consents. . .
Cited – Regina v Derby Crown Court, ex parte Brooks QBD 1985
The court set out the characteristics of abuse of process in criminal matters. It may be an abuse of process if: ‘the prosecution have manipulated or misused the process of the court so as to deprive the defendant of a protection provided by the law . .
Cited – Regina v Horseferry Road Magistrates’ Court, ex Parte Bennett (No 1) HL 24-Jun-1993
The defendant had been brought to the UK in a manner which was in breach of extradition law. He had, in effect, been kidnapped by the authorities.
Held: The High Court may look at how an accused person was brought within the jurisdiction when . .
Appeal from – Regina v Jones CACD 20-Dec-2002
The defendant might have been chaged with an offence under section 6 of the Act, of unlawful intercourse with a girl under 16, but the prosecution would have been outside the time limit of twelve months. Instead he was prosecuted for an offence . .
Cited – Regina v K HL 25-Jul-2001
In a prosecution for an offence of indecent assault on a girl under 16 under the section, it was necessary for the prosecution to prove the absence of a positive belief in the defendant’s mind that the victim was 16 or over. The legislation history . .
Cited – Regina v Cotton 1896
The Act provided that on a trial for rape the jury, if not satisfied that the defendant was guilty of rape but satisfied that he was guilty of having intercourse with a girl aged between 13 and 16, contrary to section 5(1) of the Act, might convict . .
Cited – Regina v Blight 1903
(New Zealand) The Criminal Code in force at the time, reflecting the English, included an offence of sexual intercourse with a girl under 16, to which a one month time limit applied, and also an offence of indecent assault to which no time limit . .
Cited – Regina v Saraswati 1989
(Criminal Court of Appeal – New South Wales) The defendant appealed convictions on counts of indecency with a child, the only evidence relied on, in relation to some counts, being evidence of full sexual intercourse. Statutory time limits precluded . .
Cited – Regina v Hibberd 22-Feb-2001
(Court of Appeal, New Zealand) The defendant was charged with offences of indecent assault against children. Certain Acts would have constituted more serious assaults, but were cot charged as such being time barred. . .
Cited – Regina v Quayle 1992
The court considered the practice of prosecuting for indecent assault rather than unlawful sexual intercourse because of the higher sentence available. . .
Cited – Regina v Hinton CACD 1995
The defendant had pleaded guilty to indecent assault on his 15 year old stepdaughter. The reason for the charge being under section 14 was that the time limit for prosecution under section 6 had expired. The sentence exceeded the maximum for the . .
Cited – Regina v McCormack CACD 1969
The defendant was charged with unlawful sexual intercourse and it was held to have been correct to leave to the jury as an alternative verdict a verdict of indecent assault. It was held as ‘plain beyond argument’ that if a man inserted his finger . .
Cited – Regina v Figg CACD 2003
The defendant had been convicted of indecent assault on facts which would have led to his prosecution for unlawful sexual intercourse if the time limit for that offence had not expired. The court considered the proper basis for sentence. . .
Cited – Regina v Latif; Regina v Shahzad HL 23-Jan-1996
The defendant had been lured into the UK by the unlawful acts of customs officers. He claimed abuse of process.
Held: The category of cases in which the abuse of process principles can be applied is not closed. A customs officer committing an . .
Cited – Fox v Bishop of Chester 1829
It would be ‘an insult’ to Parliament’s intention to prosecute for one offence when the more proper alternative would be barred by statute, since ‘in substance, if this could be done, you could always evade the statutory limit of time.’ . .
Cited – Procurator Fiscal, Dunoon v Allan Dominick HCJ 22-Jul-2003
. .
Cited – Procurator Fiscal, Dunoon v Allan Dominick HCJ 22-Jul-2003
. .
Cited – Fairclough v Whipp CCA 1951
The defendant was charged with indecent assault on a girl aged nine. At the man’s invitation the girl had committed an indecent act on the man.
Held: An invitation to another person to touch the invitor could not amount to an assault on the . .
Cited – Director of Public Prosecutions v Rogers 1953
It was not an assault on a girl, for a man to invite an eleven year old girl to touch him (in this case her father) indecently. . .
Doubted – Regina v Cotton 1896
The Act provided that on a trial for rape the jury, if not satisfied that the defendant was guilty of rape but satisfied that he was guilty of having intercourse with a girl aged between 13 and 16, contrary to section 5(1) of the Act, might convict . .
Cited by:
Cited – Regina v Rimmington; Regina v Goldstein HL 21-Jul-2005
Common Law – Public Nuisance – Extent
The House considered the elements of the common law offence of public nuisance. One defendant faced accusations of having sent racially offensive materials to individuals. The second was accused of sending an envelope including salt to a friend as a . .
Cited – Regina v WR CACD 11-Jul-2005
The court considered the addition of a charge of indecent assault to cover an allegation amounting to rape: ‘Historically, when the issue had been one of consent in a rape charge, it had always been accepted that if a girl were under the age of . .
Cited – Timmins, Regina v CACD 15-Nov-2005
The defendant appealed conviction for indecent assault. The charge alleged assault by intercourse per vaginam with a 13 year old girl. He had been 14 years old at the time. The verdict indicated consent by the complainant.
Held: The appeal . .
Cited – Department for Work and Pensions v Courts Admn 3-May-2006
The appellant challenged stays of proceedings by the respondent magistrates court for abuse of process infringing the defendants’ human right to a fair trial. The magistrates had fund that being faced with dismissal of a summary case through delay, . .
Cited – British Bankers Association, Regina (on The Application of) v The Financial Services Authority and Another Admn 20-Apr-2011
The claimant sought relief by way of judicial review from a policy statement issued by the defendants regarding the alleged widespread misselling of payment protection insurance policies, and the steps to be taken to compensate the purchasers. They . .
Cited – Belmont Park Investments Pty Ltd v BNY Corporate Trustee Services Ltd and Another SC 27-Jul-2011
Complex financial instruments insured the indebtedness of Lehman Brothers. On that company’s insolvency a claim was made. It was said that provisions in the documents offended the rule against the anti-deprivation rule. The courts below had upheld . .
Cited – Brown, Regina v (Northern Ireland) SC 26-Jun-2013
The complainaint, a 13 year old girl had first said that the defendant had had intercourse with her againt her consent. After his arrest, she accepted that this was untrue. On being recharged with unlawful intercourse, he admitted guilt believing he . .
Lists of cited by and citing cases may be incomplete.
Crime
Updated: 23 June 2022; Ref: scu.216463
