Sex conviction good despite time lapse
21 Oct 05
Appeal court allows statutory alternative to rape charge despite time bar provision
The criminal appeal court has upheld a conviction for unlawful sexual intercourse with girls under the age of 16, charged as an alternative to common law rape, even though a charge under the relevant legislation standing alone would have been time barred.
The court refused on this ground an appeal by Neil McNeil, convicted in 2001 at the High Court in Glasgow of offences committed between 1977 and 1997. The accused had been charged with rape but at trial the Crown invited the jury to convict of the statutory offence instead, as permitted by section 14 of the Criminal Law Consolidation (Scotland) Act 1995. After the trial judge repelled a defence objection, the jury did so.
On appeal, counsel for McNeil argued that as the statutory offence could not be prosecuted more than a year after the commission of the offence, it would thwart the intention of Parliament if the Crown could get round the restriction by bringing a charge of rape on which it did not intend to seek a verdict.
The court however ruled that, while attractive on the face of it, the argument failed to recognise the separate functions of the two provisions, or the actual language used in the Act. When the statutory alternative was proposed, the accused was liable to be punished "as if" he had been convicted of the statutory offence - the charge was not converted into an actual one under the section. So to hold did not frustrate the intention of Parliament and it had to be assumed that the Crown had before it information to support the charge brought.
The opinion of the court can be read at http://www.scotcourts.gov.uk/opinions/2005HCJAC113.html .