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 into the vagina of a girl under 16 that would be an indecent assault in view of her age, however willing and co-operative she might be.
‘Cases vary so infinitely that one can well envisage a case where the possibility of conviction of some lesser offence has been completely ignored by both prosecution and defence – it may be that the accused has never had occasion to deal with the matter, has lost a chance of giving some evidence himself about it or calling some evidence to cover or guard against the possibility of conviction of that lesser offence – and in such a case, where there might well be prejudice to an accused, it seems to this court there must be a discretion in the trial judge whether or not to leave the lesser offence to the jury.’
Fenton Atkinson LJ: ‘It is said that the prosecution had not specifically run indecent assault as a possible verdict for the jury to consider and, therefore, that the deputy chairman had a discretion whether or not to leave that matter to the jury, and there was some discussion about that and Miss Harper [for the Crown] was submitting to the deputy chairman that it was his duty to put all the alternatives. The deputy chairman said: ‘I would like to know whether I have a discretion not to do it. Frankly, I would exercise that discretion’. In fact, he went on to decide that he had no discretion in the matter, he left the alternative of indecent assault to the jury, and the jury convicted. Indeed, on our view as to what constitutes an indecent assault on a girl under 16, and in face of the defendant’s own evidence, there was no possible answer to such a lesser charge.
The view this court has formed is that the learned Deputy Chairman did have a discretion in the matter. Cases vary so infinitely that one can well envisage a case where the possibility of conviction of some lesser offence had been completely ignored by both prosecution and defence – it may be that the defendant has never had occasion to deal with the matter, has lost a chance of calling some evidence to cover or guard against the possibility of conviction of that lesser offence – and in such case, where there might well be prejudice to a defendant, it seems to this Court there must be a discretion in the trial judge whether or not to leave the lesser offence to the jury.
But that was not the situation here, and on the facts of this case we think plainly it would have been a wrong exercise of discretion not to leave this question of indecent assault to the jury, because this was a case where the defendant himself had given evidence and had said on oath ‘True I did not have intercourse, but I did do that which amounts to an indecent assault’. In view of that perfectly plain evidence which he had given, we think the only right course for the deputy chairman to take was to do what he did and to leave that matter to the jury.’
Judges:
Fenton Atkinson LJ
Citations:
[1969] 2 QB 442, [1969] 53 Cr App R 514
Statutes:
Sexual Offences Act 1956 14(1)
Jurisdiction:
England and Wales
Cited by:
Cited – Regina v J HL 14-Oct-2004
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 . .
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 – Regina v Coutts HL 19-Jul-2006
The defendant was convicted of murder. Evidence during the trial suggested a possibility of manslaughter, but neither the defence nor prosecution proposed the alternate verdict. The defendant now appealed saying that the judge had an independent . .
Lists of cited by and citing cases may be incomplete.
Crime
Updated: 06 May 2022; Ref: scu.216528