Following a trial before HHJ S Wright at Inner London Crown Court, the appellant was convicted by verdicts delivered over 23 and 24 March 2017 of 9 counts of indecent assault on males (some of whom were children at the time) and two counts of rape. The rape charges were counts 9 and 10, and it is in relation to them that this appeal proceeds, in the main.
The fresh ground was that counts 9 and 10 should have been charged as buggery pursuant to section 12(1) of the Sexual Offences Act 1956, whereas they were in fact charged as rape pursuant to s 1(1) of the Sexual Offences Act 1956; it was said that this was an error because the offence of rape did not include anal penetration until the law was amended by s 142 of the Criminal Justice and Public Order Act 1994, which came into effect on 3 November 1994, which post-dated the offences in counts 9 and 10. Accordingly, it was said, the convictions on counts 9 and 10 were unsafe and should be quashed.
In our judgment, this is not a case where a conviction under s 12(1) for buggery can be substituted for a conviction under s 1(1) for rape. Rape of a woman by a man does not "ordinarily involve" an allegation of buggery by a man of another man (or boy). The two offences are different, indeed mutually exclusive. It cannot therefore be said, by reference to the charges on the indictment for rape, that the jury must have been satisfied of the facts necessary to support a conviction for buggery.