Smolinski, R. v

A substantial delay between the alleged offence and complaint does not itself make a resulting conviction unsafe, even where the complainants were children. The trial judge and appellate court must nevertheless scrutinise the evidence with particular care where the delay is long and recollection may be affected.

An abuse-of-process stay for delay requires proof that a fair trial is impossible. Applications made before the complainants have given evidence will ordinarily be inappropriate unless the case is exceptional. A conviction may be unsafe where, viewed cumulatively, discrepancies and the jury’s differing treatment of materially identical allegations undermine confidence in the verdict.

The appellant was convicted at Swindon Crown Court, by a majority of 10:2, of indecently assaulting one of two sisters when they were aged six and seven. The alleged events occurred between 1981 and 1983 but were not reported until 2002. The jury could not reach verdicts on the other counts, including the corresponding allegation concerning the second sister.

The appellant had unsuccessfully sought a stay for abuse of process on the ground that the delay prevented a fair trial. He appealed against conviction with leave of the single judge. The central issues were whether the proceedings should have been stayed and whether the conviction was safe in light of the delayed allegations, discrepancies, and the jury’s verdicts.

1. Appeal allowed. The conviction was unsafe and could not stand.

2. The Recorder correctly refused to stay the proceedings for abuse of process. Applying Attorney General's Reference No 1 of 1990 (1992) 95 Cr App R 296, the appellant had not shown on the balance of probabilities that a fair trial was impossible. The case was properly left to the jury and the summing-up was proper.

3. The court discouraged pre-evidence abuse-of-process applications in delayed cases of this kind. Once the prosecution has carefully assessed the evidence and decided to proceed, such an application will ordinarily fail unless exceptional. The preferable course is generally to hear the evidence and then decide whether it remains safe to leave the case to the jury. This guidance was consistent with R v B [2003] EWCA Crim 319.

4. A delay of 20 years does not inevitably make a conviction unsafe where a complainant has explained the delay. It may be difficult for children to disclose sexual allegations. However, both trial and appellate courts must scrutinise the evidence particularly carefully where allegations concern events when the complainants were very young.

5. Here, the sisters agreed that the appellant had behaved in the same way towards each of them in respect of counts 1 and 2. Yet the jury convicted on one count and could not reach a verdict on the corresponding count. Taken with the discrepancies in the evidence and the elder sister’s recalled account, that incongruity made the conviction unsafe.

• Court of Appeal (Criminal Division): Allowed the appeal against conviction and held the conviction unsafe: [2004] EWCA Crim 1270.

• Crown Court at Swindon: On 27 June 2003, convicted the appellant by a 10:2 majority of indecent assault upon one complainant. The jury could not reach verdicts on the remaining counts.