Evans, R v

A conviction for historic sexual offending is not unsafe merely because the defendant faces delay, lacks contemporaneous records, or can do little more than deny the allegation. The appellate court must assess whether the delay actually made an effective defence impossible, including by preventing meaningful cross-examination or investigation.

Juries remain responsible for assessing credibility and making proper allowance for delay. A conviction may safely stand where there is some supporting evidence and substantial material with which to test the complainant’s reliability. If a conviction is unsafe, however, the court must set it aside; that conclusion does not depend on a residual discretion.

The appellant was convicted at Swansea Crown Court of four counts of buggery with a boy under 16, alleged to have occurred between 1978 and 1989. He was sentenced to seven years’ imprisonment.

He appealed against conviction. His principal remaining ground relied on the age of the allegations, the absence of contemporaneous material, and the asserted absence of supporting evidence. He contended that these matters had made an effective defence impossible and rendered the convictions unsafe.

The central issue was whether the delay and evidential limitations meant that the convictions could not safely stand.

1. Appeal dismissed. The convictions were safe. The court accepted that delay in prosecuting historic allegations may create serious forensic disadvantages, but it does not itself make a trial or conviction unsafe.
2. The court clarified its approach to B [2003] 2 Cr.App.R 13. If a conviction is unsafe it must be quashed. The appellate task is therefore not the exercise of a residual discretion distinct from the statutory safety inquiry.
3. The decisive question was whether delay had left the appellant unable to mount an effective challenge to the complainant’s case. The court stressed that juries must be trusted to assess credibility and to allow for delay. Parliament’s removal, by the Criminal Justice and Public Order Act 1994, of the former corroboration warning requirement also meant that the court should not recreate a corroboration requirement for such allegations.
4. This case differed materially from B. There was some supporting evidence: the complainant’s mother described opportunities for the appellant to take him out alone, and the appellant’s knowledge of the reputation of the Haverfordwest toilet gave limited support to part of the account. Further, the defence had ample material for cross-examination, including differences from the police account, inconsistencies in the complainant’s evidence, later-disclosed incidents, and the delayed disclosure.
5. Although the appellant’s direct answer was largely a denial, counsel could still mount a forceful challenge to reliability. The lapse of time had not put him in an impossible position. No recovery of defence costs order was made.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction and held that the convictions were safe.
• Swansea Crown Court: convicted the appellant on four counts of buggery with a boy under 16 and imposed a total sentence of seven years’ imprisonment.