Regina v. J (Appellant) (On appeal from the Court of Appeal (Criminal Division))
53. While Mr Perry was unaware of any particular instruction to Crown prosecutors in relation to prosecutions under section 14 after the expiry of the time-bar relating to section 6, it is clear that the Crown prosecutor's decision in this case was in line with decisions taken by the Crown in other cases in recent years. This can be seen from a series of cases, from R v Hinton (1994) 16 Cr App R (S) 523 to R v Figg  1 Cr App R (S) 409, in which the Court of Appeal has had to consider the proper approach to sentencing where defendants have been convicted following such prosecutions. In none of these cases did the Court of Appeal criticise the Crown's practice of prosecuting under section 14 when a prosecution under section 6 was barred by section 37 and Schedule 2. I therefore approach the matter, as counsel for the appellant did, on the footing that the decision to prosecute the appellant under section 14 was taken in all good faith, in the belief that it was something that the prosecutor was entitled to do. What matters, however, is not that the prosecutor acted in good faith but that he did so with the intention of avoiding or - to use other more or less loaded expressions - bypassing or circumventing or getting round the 12-month time-limit applying to section 6.
54. The law of England, like the law of Scotland, has no general rule of limitation or prescription of crimes. Provided that the defendant can have a fair trial, proceedings may be begun long after the alleged crime. And in recent years, especially in the area of sexual offences, there have been many prosecutions for offences that came to light only decades after they were committed when, for the first time, the victim or victims revealed what had happened. Such prosecutions are not without their difficulties but, in general, the stance of the law is that time does not run against iniquity.
55. It is all the more significant that in certain cases Parliament has indeed provided that prosecutions can be brought only within a limited time after the offence was committed. Most obviously, section 127(1) of the Magistrates' Courts Act 1980 sets a six-month time-limit for laying an information or making a complaint in the magistrates' court, while in Scotland, under section 136(2) of the Criminal Procedure (Scotland) Act 1995, there is a similar time-limit for commencing summary prosecutions - but only of statutory offences. In addition, it has long been the practice for individual statutes to say that any prosecution must begin within a certain time after the conduct complained of. Section 62(1) of the Coal Mines Regulation Act 1887, discussed in Macknight v MacCulloch 1910 SC(J) 29, and section 27 of the Food and Drugs (Adulteration) Act 1928, discussed in Robertson v Page 1943 JC 32, are old examples, while section 2(3) of the Theatres Act 1968, prescribing that proceedings on indictment for presenting or directing an obscene performance cannot be commenced more than two years after the commission of the offence, is an example from a statute that is currently in force outside the realm of sexual offences.
56. It is not always easy to discern the policy behind the provisions limiting the time for bringing proceedings. For instance, the bar on summary proceedings after six months in the Magistrates' Courts Act 1980 cannot be based on any notion that the evidence then becomes stale since this would apply equally to the evidence in prosecutions on indictment, which are permitted. Similarly, evidence does not go stale more quickly for statutory than for common law offences and yet the six-month limit in the Criminal Procedure (Scotland) Act 1995 applies only to statutory offences. In any event, the court will take notice of any difficulties with the evidence when making sure that the defendant can have a fair trial. It seems, therefore, that in these cases Parliament takes the rather broader view that, if the offences are worth prosecuting at all at summary level, they are only worth prosecuting if they come to light and can be dealt with soon after they are committed, in accordance with the prescribed time-limit. Similarly, in passing the Theatres Act 1968, Parliament must have taken the view that, if the prosecuting authorities could not decide within two years that the director of an obscene play was worth prosecuting on indictment, that should be an end of the matter. In enacting all these time-limits, Parliament has taken a conscious decision to depart from the general rule that proceedings can be taken at any time. Moreover, it has done so, having regard to the spectrum of offending to which the time-limit in question applies. Inevitably, in particular cases the time-limits may seem to work capriciously and to give immunity to someone who deserves to be prosecuted. Especially after so many years of enacting and re-enacting time-limits, Parliament must be taken to have been well aware of this risk, but to have decided none the less that the overall benefits of the limits outweigh their disadvantages. It follows that, even in "hard" cases, the policy of Parliament must be applied and effect given to the time-limits it has prescribed. If problems emerge, Parliament can, at any time, legislate to remedy them.
57. The time-bar relating to prosecutions under section 6 of the 1956 Act is to be considered in this light. It originated in section 5 of the Criminal Law Amendment Act 1885 which required prosecutions to be brought within three months. That time-bar was, of course, applied by the courts, as can be seen not only from R v Cotton (1896) 60 JP 824 but, for instance, from M'Arthur v Lord Advocate (1902) 10 SLT 310. The period was progressively extended until it was fixed at 12 months by section 1 of the Criminal Law Amendment Act 1928. To modern eyes at least, in a case like the present that 12-month time-bar is likely to seem arbitrary, cutting off the otherwise legitimate prosecution of a man who, when in his mid-thirties, knowingly indulged in a prolonged sexual relationship with a girl between 13 and 15 years of age. Presumably, it is because of this perception that, in recent years, the Crown has sought to get round the time-bar by bringing proceedings under section 14 of the 1956 Act. In their written case counsel for the Crown referred to the passage in the judgment of Edwards J in R v Blight (1903) 22 NZLR 837, 851 - 853 where he sought to explain the thinking behind the one-month time-limit in the equivalent New Zealand legislation of 1893. His Honour's observations were very much of their time and, even assuming that they were valid then, they would not justify the time-limit in the different social conditions of today. Mr Perry therefore felt able to denounce the time-limit for prosecuting section 6 offences as being insupportable at the beginning of the twenty-first century. He urged the House in effect to hold that it is out of date and can properly be ignored, at least in cases with aggravating features. It is fair to say that he had some difficulty in identifying either the principled basis for such an approach or the class of cases where it would be appropriate.
58. None the less, if one concentrates exclusively on cases like the present, Mr Perry's argument may seem powerful, if bold. But, although all too common, cases of this kind form only one part of a wider picture. Section 6 also applied to boys of roughly the same age who had sexual relations with girls under 16. If surveys of the sexual habits of teenagers are to be believed, or even half believed, there must be many thousands of boys and young men who would be exposed to the risk of prosecution under section 6 if their under-age partners or their partners' parents were to inform the police of the sexual relations in which they had agreed to indulge. Without the time-limit, this would remain a risk even many years later, when the boys were grown up, perhaps with a family and a successful career. In such cases, at least, there is something to be said for a provision that draws a line 12 months after the incident.
59. In this regard it is not without interest that, when the law relating to homosexual offences in Scotland was modernised in 1980, Parliament provided that no prosecution for committing or procuring unlawful homosexual acts is to be commenced more than 12 months after the date on which the offence was committed: section 13(5), (6) and (11) of the Criminal Law (Consolidation) (Scotland) Act 1995. And, under section 5(3) and (4) of the same Act, in the case of prosecutions for sexual intercourse with a girl over the age of 13 but under 16, the time-limit of one year remains in place, even though the offence now attracts a maximum sentence of 10 years' imprisonment. On the other side of the world, the New Zealand legislature modernised the law relating to homosexual relationships by enacting the Homosexual Law Reform Act 1986 so as to amend the Crimes Act 1961. Section 3 of the 1986 Act introduced a new section 140A which created an offence relating to various kinds of indecent conduct with a boy between 12 and 16. There is no time-limit for prosecutions for indecent assault but, in the case of any act of indecency with or upon such a boy, section 140A(6) provides that the prosecution has to be commenced within 12 months.
60. These modern enactments for Scotland and New Zealand suggest that, on one view, in the sensitive area of prosecutions for sexual offences there is still room for time-limits. In any event, the question is one for the legislature, having regard to the offences in question. In England and Wales Parliament has introduced an entirely new scheme in the Sexual Offences Act 2003 and has taken the view that under that Act there should be no time-limit for bringing prosecutions. That is how things are to be for the future, but it is no warrant for the courts to disregard the time-bar relating to prosecutions under section 6 of the 1956 Act, as it applies to offences committed before 1 May of this year.
61. In the courts below, and again in this House, Mr Meeke QC argued that bringing the prosecution under section 14, in order to avoid the time-bar applying to section 6, amounted to an abuse of process on the part of the Crown. The argument was rejected in the courts below. It seems to me that if, on a proper construction of section 14 in the context of the 1956 Act as a whole, it was open to the Crown to prosecute the appellant under section 14, then there can have been no abuse of process. But, equally, if on a proper construction of the legislation, it was not open to the Crown to prosecute the appellant under section 14, the appeal must succeed. The critical question is one of the construction of the Act. It appears that counsel for the appellant veered away from that approach because of the rag-bag nature of the 1956 Act as described by my noble and learned friend, Lord Bingham of Cornhill, in R v K  1 AC 462, 467, para 4. Counsel considered that, since the 1956 Act disclosed no single, coherent legislative scheme, one could not argue that section 14 must be construed and applied in a way that respected the time-bar applying to section 6 offences. The fact that the 1956 Act is not by any means entirely coherent is not, however, a reason for the courts to abandon their usual approach to interpretation and to construe its provisions in isolation, as if they had no bearing on one another.
62. Sections 6 and 37 and Schedule 2 disclose a clear intention on the part of Parliament that a man who has sexual intercourse with a girl over 13 and under 16 is not to be prosecuted for doing so unless the prosecution is begun within 12 months of the intercourse. Section 14 must be construed and applied in a way that respects and does not defeat that intention. This is enjoined by more than one principle of statutory construction.
63. Where Parliament has specifically provided a régime for the commencement of proceedings for the offence of having sexual intercourse with an under-age girl, no other more general words, such as are to be found in section 14, are to derogate from that special provision: generalia specialibus non derogant. That was the approach favoured by the majority of the High Court of Australia in Saraswati v The Queen (1991) 172 CLR 1, 17-18 and 23-24, per Gaudron and McHugh JJ respectively. To put the point another way, the Crown cannot do indirectly what it is forbidden to do directly.
64. Another approach, which may be particularly apt in a case such as the present, is to say that section 14 must not be construed and applied in such a way as would amount to a fraud upon section 37 as it affects section 6. 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. It would be wrong to construe section 14 in such a (literal) way as to permit the prosecutor, however well-intentioned, to use it in order to evade the time-bar applying to prosecutions for sexual intercourse with an under-age girl. To use the expression of Lord Eldon when proposing the question for the judges in Fox v Bishop of Chester (1829) 1 Dow & Cl 416, 429; 6 ER 581, 586, it would be "an insult" to Parliament's intention in enacting section 37, since "in substance, if this could be done, you could always evade the statutory limit of time": R v Cotton (1896) 60 JP 824, 825 per Pollock B. As Williams J said in R v Blight (1903) 22 NZLR 837, 847, section 37 and the relevant provision in Schedule 2 "would be practically expunged from the Act, and the protection given by the time limit would be quite illusory." An interpretation of section 14 that has such a result must be rejected. I accordingly hold that section 14 of the 1956 Act does not permit a prosecutor to raise proceedings for indecent assault where the act in question was simply sexual intercourse with an under-age girl and a prosecution under section 6 would be barred by section 37 and paragraph 10 of Part I of Schedule 2. This interpretation is in line with the approach to time-limits for sexual offences envisaged by the High Court of Justiciary in Webster v Dominick 2003 SLT 975, 985, para 60 per Lord Justice Clerk Gill.
65. Deploying his learning and experience, Mr Perry held up the prospect of all kinds of difficulties that would, he said, arise if your Lordships were to interpret the Act in this way. I am prepared to accept that there may indeed be some initial difficulties. But your Lordships would merely be adopting the same approach as has applied in the case of the equivalent legislation in New Zealand for over a century, following the decision in R v Blight 22 NZLR 837. Significantly, Mr Perry was unable to point to any insuperable problems which the prosecutors or courts had encountered there. On the contrary, when, in R v Hibberd  2 NZLR 211, the Court of Appeal came to interpret the Crimes Act 1961 as amended to cover homosexual offences, in the light of their experience they deliberately adopted the same approach to the time-bar as had been laid down in R v Blight.
66. For these reasons, as well as those given by your Lordships, I would allow the appeal and make the order proposed by Lord Bingham of Cornhill.
THE BARONESS HALE OF RICHMOND
67. The appellant was born on 16 August 1960. He is thus 18 years older than the complainant who was born on 28 September 1982. They lived in the same village and their families were friends. The appellant began a business making horse boxes and trailers in premises rented from the complainant's father. The complainant, then aged 13, began working for him on Saturdays and in the school holidays. She complained that the appellant had regularly had vaginal sexual intercourse with her between July 1996, when she was 13, and September 1997, when she reached 15. She also complained of oral sexual intercourse when she was 13. However, she did not make these complaints until March 2000, when she was 17. As this was more than 12 months after the acts concerned, the appellant could not be charged with the offence of unlawful sexual intercourse with a girl under 16, contrary to section 6(1) of the Sexual Offences Act 1956, because by virtue of section 37(2) and paragraph 10 of Schedule 2 to the Act, a prosecution for that offence (or for an attempt to commit that offence) may not be commenced more than 12 months after the offence charged. However, it is now clear that the act of vaginal sexual intercourse also constitutes an indecent assault, to which no such time limit applies. Accordingly, the appellant was charged with and convicted of three specimen counts of indecent assault. He was sentenced to concurrent terms of 18 months' imprisonment on the first two and a further consecutive term of 18 months imprisonment on the third. It is against those three convictions that he appeals. He was also charged with one specimen count of indecency with a child, contrary to section 1(1) of the Indecency with Children Act 1960, in respect of the oral sexual intercourse. Again, no time restriction applies. He was convicted and sentenced to a term of 12 months' imprisonment, consecutive to the other terms, but reduced to nine months on appeal so as to reduce the total sentence below four years. This was because "the overall picture was not such that it was necessary to render the appellant a long term prisoner"  1 WLR 1590, 1605, para 44. One can only speculate about what the Court of Appeal might have thought of the "overall picture" had the oral sexual intercourse been the only criminal conduct with which the appellant could be charged. There is no appeal against his conviction on that count.
68. The point of law certified by the Court of Appeal for this House under section 33(2) of the Criminal Appeal Act 1968 is:
69. The parties' statement of facts and issues puts the matter in the same way. I have no difficulty in answering "no" to that question. Moreover, unlike your Lordships, I do not see this as a "problem" to which other solutions have to be found so that the appeal may be allowed. In my view, the appellant was guilty of conduct which constituted the offences with which he was charged at the time when he committed them; there is no good reason why he should not have been charged with and convicted of them; and the only unfairness will be that done to his victim, and the many others in her situation, by your Lordships' decision.
Abuse of process
70. There are two broad categories of abuse of the criminal justice process. The first is where the defendant cannot receive a fair trial, for example because of delay: see R v Derby Crown Court, Ex p Brooks (1984) 80 Cr App R 164. There are cases where, because of the lapse of time since the alleged events, it will be so difficult for the defendant to rebut apparently credible accusations made against him or so difficult for the jury to assess the accuracy or reliability of competing accounts that he could not have a fair trial. But no-one has suggested that in this case. It is acknowledged that the appellant could have and did have a fair trial.
71. The second category of abuse is where it would be unfair for the defendant to be tried at all. The guiding principle was stated thus by my noble and learned friend, Lord Steyn, in R v Latif  1 WLR 104, 112, a case of entrapment involving illegal conduct on the part of the customs officers concerned:
72. What are the "countervailing considerations of policy and justice" in this case? On the one hand there is the need to protect the young from sexual exploitation and abuse, which we now know can cause very considerable physical, social and psychological harm. The law has for centuries taken a serious view of sexual intercourse with a girl who has in all probability not yet reached puberty. Ravishing a "maiden within age" (ie under 12), with or without her consent, was an offence under the first Statute of Westminster, 3 Edw 1 stat 1 cap 13, (1275). The "abominable wickedness" of carnally knowing and abusing a woman-child under the age of 10 was made a felony by 18 Eliz 1 cap 7 in 1576. Blackstone reports that Sir Matthew Hale (later to be so much maligned by feminists) was "of the opinion that such profligate actions committed on an infant under the age of 12 years, the age of female discretion by the common law, either with or without consent, amount to rape and felony: as well since as before the statute of queen Elizabeth"; but in general that law had been held to extend only to children under 10, although girls of 11 and 12 were still protected by the Statute of Westminster (Blackstone's Commentaries on the Laws of England, vol IV, p 212). The same distinction was drawn in their 19th century statutory replacements, first by 9 Geo IV cap 31, sections 16 and 17, in 1828; and second by the Offences against the Person Act 1861 (24 & 25 Vict c 100) sections 50 and 51. The respective age limits were raised from 10 to 12 and from 12 to 13 by the Offences against the Person Act 1875 (38 & 39 Vict c 94) sections 3 and 4.
73. Section 52 of the 1861 Act also introduced, for the first time, the offence of indecent assault upon "any female". There was no statutory age of consent, but it may very well be that the common law approach to the age of discretion would have applied, so that a girl under 12 would have been deemed incapable of consenting. At this stage, neither common law nor statute laid down a minimum age for marriage, but "it seems that the Common Law applied a presumption that a boy under 14 and a girl under 12 were not capable of marriage" (S M Cretney, Family Law in the Twentieth Century: A History, (2003), pp 57-58), although if they married before that age and cohabited after it, they were deemed to have ratified the union.
74. The law was slower to recognise that even consensual sexual activity with children who might well have reached the age of puberty was both harmful and abusive. The offence of "unlawful carnal knowledge" of a girl of 13 but under 16 was introduced by the Criminal Law Amendment Act 1885 in response to a campaign against child brothels and trafficking in young girls, famously championed by W T Stead in The Maiden Tribute of Modern Babylon - the Report of the Pall Mall Gazette's Secret Commission. Dr Cretney reports, at p 59, footnote 147, that "the Act was strongly opposed, much of the opposition based on fears that no man with young sons would be able safely to employ girls under 16 as domestic servants", though he does not say whether this was because of fear that the normal activities to be expected of the young men of the house would now land them in trouble or because of a fear of unjust accusations.
75. No doubt it was a bit of both. No prosecution could be brought for this new offence more than three months after its commission, although no such time limit applied to the equivalent offence with a girl under 13 or to an indecent assault. The time limit under the equivalent offence in New Zealand was one month. In R v Blight (1903) 22 NZLR 837, 848, Denniston J made the obvious point that this offence might lead to pregnancy: it was thought then that a girl who fell pregnant, and thus was unquestionably the victim of an offence, was so likely to name the wrong man that the accused needed the exceptional protection of a very short time limit, one which elapsed before her pregnancy had become obvious or even known. Edwards J made the additional point, at p 852, that "the fact that the girl has consented to such an act is in itself strong evidence that her moral perceptions are not of a high character . There is no vice more prevalent among persons of low moral perceptions than the vice of lying". Thus were the victims blamed for the very abuse against which the law was supposed to protect them.
76. Whatever the original rationale in England, it cannot long have been the supposed need to identify a perpetrator before a pregnancy became apparent, because the time limit was soon raised, first to six months by the Prevention of Cruelty to Children Act 1904, then to nine months by the Criminal Law Amendment Act 1922, and finally to 12 months by the Criminal Law Amendment Act 1928. It was precisely because a pregnancy or childbirth might reveal the offence that the limit was raised. The reasons given for having any limit at all - loss of witnesses and the difficulties of proof - might equally apply to many other offences. But complainants in sexual offences were then still regarded with much more suspicion than other complainants, and so abolition may have been thought too radical to contemplate. However, it is hard to discern any coherent rationale after 1922, because the 1922 Act also provided that consent would no longer be a defence to an indecent assault upon a child or young person under the age of 16. Thus most forms of sexual activity with a girl under 16 became a criminal offence whether or not she consented, but no time limit was prescribed.
77. Carnal knowledge was not "unlawful" if the couple were married to one another, but the law of marriage was aligned with the criminal law by the Age of Marriage Act 1929, which made void any marriage either party to which was under 16. Among the reasons given was consistency with the 1885 Act: a girl could not consent to a single act of intercourse outside marriage but could give the perpetual and irrevocable consent involved in marriage (under the law as it was then understood to be, on the strength of a statement of Sir Matthew Hale). Girls might also be persuaded to leave their homes and families by the false promise of marriage, thus frustrating the object of combating trafficking in girls and the "white slave trade".
78. The girl's age of consent has remained at 16 since then, although policy makers have seriously contemplated change: see, for example, the Policy Advisory Committee on Sexual Offences, Report on the Age of Consent in relation to Sexual Offences, (1981) (Cmnd 8216). It is recognised that they need protection from two rather different sorts of harm. One is from premature sexual activity. It is entirely natural for young people to be interested in sex and to desire one another. But it is important for everyone to proceed at their own pace and when they feel ready. Girls must be free to say "no" if that is how they think and feel. The possibility of pregnancy is, or should be, an important factor in how they think and feel. The physical and psychological consequences of premature intercourse may be so much greater for them than they are for boys. Whether the age of consent is an important component in giving them some protection has been the subject of debate, but the conclusion so far has favoured its retention. The other sort of harm is sexual abuse of the sort shown by the facts of this case: a much older man in a position of trust who takes advantage of her youth and vulnerability. There is no debate at all that girls require protection from this sort of behaviour: it can cause untold damage to their self-esteem, their capacity to form ordinary intimate relationships in the future, and their perceptions of how to live in families, all of which are so crucial to their own ability to be effective partners and parents in their turn. Those with professional experience of trying to pick up the pieces, sometimes many years after the event, are in no doubt of the gravity of the risks involved. Such considerations of policy clearly favour prosecution for any offences committed, provided that a fair trial is possible.