The defendants appealed against their convictions for sexual offences committed more than thirtyy years before the trial. They alleged abuse of process.
Held: The appeals succeeded. There had been no good reason for the long delay. The complainants’ mother had confronted the appellant 27 years previously but had not reported him to the police. The delay had provided an opportunity for collusion between complainants and other witnesses, a witness for the defendant had died and much of the other documentary evidence on which the defendant would have relied was no longer available.
After reviewing the case law, the Court laid down 5 propositions: ‘i. the court should stay proceedings on some or all counts of the indictment if and only if it is satisfied on the balance of probabilities that by reason of delay a fair trial is not possible on those counts;
ii. usually the proper time for the defence to make such an application and for the judge to rule upon it is at trial, after all the evidence is called;
iii. in assessing what prejudice has been caused to the defendant on any particular count by reason of delay, the court should consider what evidence directly relevant to the defence case has been lost through the passage of time. Vague speculation that the lost documents or deceased witnesses might have assisted the defendant is not helpful. The court should also consider what evidence has survived the passage of time. The court should then examine critically how important the missing evidence is in the context of the case as a whole;
iv. having identified the prejudice caused to the defence by reason of the delay, it is then necessary to consider to what extent the judge can compensate for that prejudice by emphasising guidance given in standard directions or formulating special directions to the jury. Where important independent evidence has been lost over time, it may not be known which party that evidence would have supported. There may be cases in which no direction to the jury can dispel the resultant prejudice which one or other of the parties much suffer, but this depends on the facts of the case;
v. if the complainant’s delay in coming forward is unjustified, that is relevant to the question whether it is fair to try the defendant so long after the events in issue. In determining whether the complainant’s delay is unjustified, it must be firmly borne in mind that victims of sexual abuse are often unwilling to reveal or talk about their experiences for some time and for good reason.
Judges:
Jackson LJ, Silber J, HH Barker QC CS
Citations:
[2011] EWCA Crim 2812, [2011] 2 Cr App R 13
Links:
Jurisdiction:
England and Wales
Criminal Practice
Updated: 04 October 2022; Ref: scu.450300