Offenders Exploit Legal Loophole In Sex Offences Act To Escape Justice
Rapists and child abusers are escaping justice because the government left a loophole open when it passed the Sex Offences Act 2003 and repealed earlier legislation. The act came into force on May 1 2004 and covers crimes committed after that date. Offences committed before then can still be prosecuted under the earlier law, the Sex Offences Act 1956.
But prosecutors say the Home Office’s failure to bring in transitional provisions creates a gap in the law which means they cannot prosecute where there are doubts as to whether the crime was committed before or after May 1 2004.
The problem is particularly acute with child victims, who are less likely than adults to remember exact dates and who may not come forward until years after the event. Two cases have been thrown out by judges and other prosecutions are on hold.
The situation first came to light in 2005 when Judge Paul Glenn at Stoke-on-Trent crown court ruled that there was no case to answer against a man accused of raping a boy. The victim could not remember the exact date, but said the assault had happened “just before the bank holiday at the beginning of the month”. The bank holiday was on May 3 2004.
Prosecutors had charged two counts of rape, one under the 1956 act and one under the 2004 act, hoping the jury would choose one and convict. But the judge, who described the situation as “nonsensical” and “outrageous”, said the jury could not be sure which of the two counts had been made out. In another case a man accused of several sex offences against a girl under 13 was charged under the 1956 act but with dates spanning the periods of both acts. A judge held at a preliminary hearing that the counts could not be put before the jury. The crown appealed but the appeal was dismissed.
“The outcome of these two particular cases is worrying, and the problem will be exacerbated by the passage of time as allegations of offences committed in 2004 become ‘historical’,” wrote Kjersti Lehmann, of the Crown Prosecution Service policy directorate, in the latest New Law Journal.
The government has tried to plug the loophole by a provision in the Violent Crime Reduction Act (VCRA) 2006. This will allow offenders to be convicted under the 2003 act even when it cannot be proved when the offence took place, as long as what happened was also an offence under the old law.
But even since the 2003 act, there is still no date fixed for the VCRA to be implemented and prosecutions cannot go ahead. When it comes into force there are likely to be defence challenges arguing that it contravenes the ban on retrospective legislation, as defendants could be convicted under the 2003 act for an offence committed before the act came into force.
A CPS spokeswoman said: “Currently we’re aware of perhaps a handful of cases. However, there are likely to be more that we’re not aware of and possibly more coming to light.”
She acknowledged that the VCRA was likely to be challenged by defence lawyers but said challenges were not expected to succeed because “it was a crime at the time and it’s still a crime”.