Convictions for indecent assault were unsafe as the judge, in his summing up, had introduced an alternate basis for conviction, namely that the victim was over 16 years old and had not consented, which the defendant had not been charged with.Appeal, with leave of the single judge, against conviction on four counts of indecent assault imposed at Preston Crown Court on 8 May 2003 before HH Judge Baker. The defendant (D) was sentenced to a total of three years' imprisonment. The victim (V), who was aged 13 or 14 at the time of the offences, used to babysit for D and it was during that time the offences occurred. V complained when she was 25 years old, two of the offences involved sexual intercourse. D admitted having sex with V but said it was after she was 16 years old and she had consented. The issue at trial was when the offences had occurred. When summing up the judge had stated that there were two separate basis on which the jury could convict: (i) V was under 16 at the time of the offences and was not capable of consent; or (ii) V was over 16 but did not consent. D appealed conviction on the ground that the judge had misdirected the jury and had introduced an alternate basis on which the jury could convict which had not been raised at trial.HELD: (1) It was clear that the alternate basis put forward by the judge amounted to rape. If the jury were to decide that issue then it should have been charged and run on those terms. D had not been charged with rape of V and there should have been no question of the issue of non consent being left to the jury. (2) These were serious matters and it was wrong to allow a case of rape in fact to be run as indecent assault. Once the prosecution had decided it was only running one issue, namely the timing, then it was quite impermissible to allow consent to run without amending the indictment. (3) The conviction could not be regarded as safe. The court could not be sure how the jury reached its verdict and if it was on the basis that V was over 16 and had not consented no attempt had been made to lay the charge before D.Appeal allowed, retrial refused.

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