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 sixteen, and a jury were to find not guilty of rape on the issue of consent, it was open to a jury – if it accepted that the intercourse had taken place, to find on an alternative verdict a defendant guilty of indecent assault. The issue now is whether that remains still open to the jury. Until the case of R v J,  3 WLR 1019 – until the decision of the House of Lords in the case, no-one had considered that there might be a problem. But, it is submitted by Mr Hoare – to whom I am grateful for his skeleton argument and for his oral submissions – it is submitted that there had been a complete sea change as a result of the case of J. Such a sea change, which he submitted, might be thought to have resulted in irrational and incoherent decisions which might bring the law into disrepute, and adopting the view of Baroness Hale in that case the position might well be undeserved, But nonetheless technically correct, and his submission is this.
That when the matters, which are now admitted by the defendant, consist of unlawful sexual intercourse, provided that the case was brought outside the time limit for a proper prosecution for that offence, it is no longer open to the jury on the facts of unlawful sexual intercourse to convict of indecent assault. J, he says, now will affect a sea change, both procedurally and substantively, in the time honoured way in which these matters have been dealt with.
The facts of J were effectively these. That there had had been consensual sexual intercourse between a seventeen year old girl. Sorry, a seventeen year old complainant alleged that between the ages of thirteen and fifteen, she had had consensual sexual intercourse with the defendant. He had denied that but was convicted. But, submitted – at various stages both before the trial judge and at various stages of appeal – that because the prosecution had been out of time for bringing the charges of unlawful sexual intercourse, that had deliberately chosen to charge on the basis of indecent assault, it was an abuse of process for the matter to be allowed to continue. The abuse of process argument went before the trial judge and the Court of Appeal, but no doubt at the prodding of the House of Lords, the matter was slightly altered in the sense that what their lordships really considered was whether the wording of the statute allowed what had in fact happened. So, reflecting again, what had happened was this. The prosecution would have been for unlawful sexual intercourse had it been done timeously. It was too late, and quite openly the prosecution then sought to proceed by way of charges of indecent assault and made it quite clear that that was what they were going to do. And indeed, it followed a line of cases which had come before the Appeal Court, not on that point, but on the question of the sentencing which was appropriate.
The House of Lords found that where the statutory provision as here, in relation to time limits, was clear and unambiguous, the court could not decline to give effect to it on the grounds that the rationale here of the time limits might have been anachronistic, discredited or unconvincing. That Parliament must have decided there was a reason for a time limit, Parliament had not altered it and that accordingly, when the only evidence of sexual intercourse with a girl under sixteen was relied upon, the defendant could not be prosecuted for indecent assault after twelve months had elapsed. And in effect, Mr Hoare now says well that’s the situation on the facts. The prosecution on this charge of rape could not have put an alternative matter of unlawful sexual intercourse, and therefore it follows from that indecent assault cannot follow. It is really an attractive argument, but one which I do not accept.
J was concerned with specific facts as to the basis upon which the prosecution was launched. This is a case of rape. It’s a case of rape and where the issue – in terms of the time when the girl was under sixteen – the issue is one of consent in matters where the jury finds that matter occur below the age of sixteen, the issue is one of consent. It is not a case where a procedural device has been adopted to get round a time limit. There is no time limit in relation to rape and it is my judgment that the Crown is still entitled to ask the jury to consider alternative verdicts of indecent assault.’
 EWCA Crim 1907
England and Wales
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.234979