Practice and Procedure


PUBLISHED February 11, 2003

Where complaints of indecent assault were made many years after the incident, any possible prejudice caused by the delay could be dealt with within the trial process, however, any possible injustice to the defendant outweighed justice for the complainant, on the present facts the delay meant that the defendant had no defence other than denial and his conviction was unsafe.Appeal against conviction with leave of the single judge. On 17 January 2002 at Merthyr Tydfil Crown Court before HH Judge Gareth Davies the defendant ('B') was convicted of ten counts of indecent assault on a female under sixteen years old. He was sentenced to a total of four years imprisonment. The assaults had taken place between September 1968 and September 1972 The victim ('V') was B's step-daughter, who was aged between seven and eleven when the assaults took place. It was V's case that she had been assaulted on a regular basis. She had been made to undress and climb into bed with B and made to masturbate him. B simulated intercourse until ejaculation and had sometimes inserted his fingers into her vagina. B denied all the allegations. Before the start of the trial B made an application for a stay for abuse of process based on the delay of 30 years between the alleged incidents and the complaint being made. The judge rejected the application but recognised that the delay could cause difficulties for B in that it would be hard to gather witnesses or evidence so long after the incidents had happened. The judge considered that any possible unfairness to B could be dealt with within the trial process. B appealed on the ground that the conviction was unsafe as the evidence relied on was unreliable and unsupported by any independent evidence, and relied on Attorney-General's Reference (No.1 of 1990) 1992 95 Cr App 296, R v Dutton (1994) CLR 910 and R v Jenkins 1998 CLR 411.HELD: (1) The appeal raised points of general interest regarding complainants of sexual offences alleged to have happened many years before trial. Unlike civil matters there was no statutory limitation in criminal cases and Parliament had removed the common law requirement of corroboration. (2) Distinctions could be drawn between the present case and that of R v Dutton (supra) and the Attorney-General's Reference (supra) as in R v Dutton the judge gave no reasons for refusing the application for a stay. Further, no criticism could be made in the present case of the judge's summing up and directions given to the jury regarding the possible prejudice of delay. (3) The passage of time has never been a reason to stop a prosecution. Who to believe was a matter for the jury with the appropriate directions from the judge. The same was true in the way the court would not 'shut the door' on a case where new evidence was discovered many years after a trial, which showed a person was innocent. (4) The judge gave a clear summing up but one matter not dealt with was corroboration. Under s.33Criminal Justice and Public Order Act 1994 corroboration was no longer needed for sexual offences. Parliament made the decision as to the balance between the prosecution and defence on the issue of corroboration and the court could not go behind that. (5) The trial system was dependant on confidence in the jury system. The jury had seen the witnesses and heard the evidence. The judge clearly warned the jury on delay and the reason the jury convicted B was that they believed V was telling the truth and B was not. (6) The Court of Appeal had a residual power in cases where a conviction was unsafe. The court's power should only be exercised in limited circumstances. If V was telling the truth then she had been treated in a despicable way and deserved justice, however, justice also had to be done for B. (7) It was most important that an injustice was not done to a defendant. That result might mean some guilty go unpunished but that was better than an innocent person being punished. B was put into an impossible position to defend himself. Given the effect of delay all he could do was to say he had not done anything. Saying that to a jury amounted to no defence at all. (8) In all the circumstances this was a residual case where in the interests of justice the court had to interfere and set aside the conviction. That could mean that an injustice was done to V and also to the public because a man who was possibly guilty had been let free. However, it was the court's duty to allow the appeal.Appeal allowed.

[2003] EWCA Crim 319