B, R v

A criminal prosecution for historic sexual offending is not barred merely by lapse of time. A stay for abuse of process is exceptional. The defendant must prove, on the balance of probabilities, that a fair trial is impossible after allowing for evidential rulings, jury directions and the ordinary trial process.

Even where the trial was properly conducted, an appellate court retains a cautious residual discretion to quash a conviction that is unsafe or unfair. Extreme delay may justify that course where it leaves the defendant with no practical means of testing the allegation or advancing an effective defence. The repeal of corroboration requirements by the Criminal Justice and Public Order Act 1994 does not remove the need to warn a jury about forensic prejudice caused by delay.

The appellant was convicted at Merthyr Tydfil Crown Court of ten counts of indecent assault on his stepdaughter. The offences were alleged to have occurred between 1969 and 1972, when she was aged between seven and 11. He denied all wrongdoing and was sentenced to four years’ imprisonment.

A pre-trial application to stay the indictment for abuse of process was refused. The judge held that the appellant had not proved that a fair trial was impossible despite the long delay, lost records and unavailable witnesses. On appeal, the appellant challenged the effect of the delay and his ability to defend the allegations. The central issue was whether the conviction should stand despite a fair summing-up and the absence of procedural error at trial.

1. Appeal allowed; conviction quashed. Although the trial judge correctly refused a pre-trial stay and the summing-up was fair, the court concluded that the conviction was unsafe or unfair because the delay had made an effective defence impossible.

2. There is no criminal limitation period. Delay alone does not justify staying a prosecution. Following Attorney General's Reference No 1 of 1990 (1992) 95 Cr App R 296, a stay is exceptional and requires the defendant to establish, on the balance of probabilities, that a fair trial cannot be held. The court must consider whether evidential rulings, directions and the jury’s assessment of the factual consequences of delay can secure fairness. The trial judge was entitled to leave the case to the jury.

3. The court distinguished R v Dutton [1994] Crim LR 910. Unlike that case, the complainant had explained the delay and the trial judge had given adequate reasons and a proper warning about the forensic difficulties caused by delay. There was no misdirection in the summing-up.

4. Section 33 of the Criminal Justice and Public Order Act 1994 had removed the former corroboration requirement for this trial. The court could not reintroduce that requirement contrary to Parliament’s chosen balance. However, the appellant’s inability to obtain material for cross-examination, identify demonstrably incorrect accounts, or rely on contemporaneous records meant that his bare denial was not an effective practical defence. Exercising its residual discretion cautiously, the court held that justice required the conviction to be set aside.

• Court of Appeal (Criminal Division): Allowed the appeal against conviction and quashed the convictions.

• Crown Court at Merthyr Tydfil: Convicted the appellant of ten counts of indecent assault and imposed a total sentence of four years’ imprisonment.