Practice and Procedure


PUBLISHED July 29, 2003

There was no principle to be found in R v B (2003) that a period of delay of 30 years, or any other period, was determinative on an application for a stay for abuse of process. There was no reason for the judge to order severance of the counts.Appeal against conviction on 21 September 2000 at Exeter Crown Court before HH Judge Cottle for 28 counts of indecent assault on males, seven counts of attempted buggery, three counts of buggery and two counts of incitement to commit buggery. Following conviction the defendant ('H') was granted permission to appeal the sentence of 18 years' imprisonment by the single judge but refused permission to appeal conviction. H renewed the application to appeal conviction and on 21 March 2003, at a directions hearing, the full court granted the defendant ('H') leave to appeal conviction on the issue of abuse of process and delay and the issue of severance. Appeal against sentence and other matters in relation to the conviction appeal, the subject of investigation on behalf of H, were not the subject of the present appeal. The offences occurred during the 60's and 70's against 15 male victims aged between 10 and 15 who, all but one, were pupils at an approved school. H was initially involved with the school on a voluntary basis and then employed as a gardener between 1971 and 1973. Some of the victims were involved in a support group set up to co-ordinate civil actions arising from the alleged abuse. The first complaints were made to police in 1997 and H was first interviewed in 1999. At trial it was the prosecution's case that H had, in a variety of ways, sexually assaulted the victims and used his contact with the school as a means of gaining access to boys to abuse with little chance of detection. The victims felt there was little purpose in complaining to the school at the time and those that did complain were not believed. H contended that the victims were lying and had colluded for the purpose of obtaining compensation. They had had every opportunity to complain at the time. The Head teacher of the school died in 1997 and other potential witnesses were either dead or unfit to give evidence at the time of trial. H made an application for a stay for abuse of process by reason of delay, which was refused. The judge also refused to sever the indictment in order to render the trial more manageable. Those two points were the subject of the present appeal. H contended that in R v B 2003 EWCA Crim 319 the conviction was quashed where there was a delay of 30 years. Further, the judge should have severed the counts as there was a danger that the jury could approach the case in a "broad brush" way because of the multiplicity of counts. The prosecution contended that the judge was entirely correct in the exercise of his discretion and there was no reason for the court to interfere.HELD: (1) No statement of principle could be found in R v B (supra) that a period of 30 years, or any other period, should be regarded as determinative on an application for a stay for abuse of process. The length of delay was but one consideration for the judge when exercising his discretion. Further, in R v B (supra) there was a single victim and the defence was that she was confused and may have been mistaken. In the present case there were 15 victims and the defence was lies not confusion. There was no reason for a stay to have been ordered. (2) It was clear that the jury did not approach the case in a "broad brush" way, they did not convict across the board but acquitted D of one offence and convicted him of the lesser offence of attempted buggery where buggery had been charged. The trial was manageable, there was no compelling reason for severance and no ground to conclude the judge was wrong.Appeal dismissed.