EW, R v

A prosecution for historic sexual allegations should be stayed for delay only where, after considering all the circumstances, a fair trial is no longer possible. Delay alone is insufficient. The court must consider the available evidence, the ability to test it, and whether appropriate jury directions can address any forensic disadvantage.

The defendant must identify the alleged prejudice. It made no practical difference whether the Crown then bore a legal burden to show that the trial remained fair. An appellate court retains a cautious residual power to quash a conviction which is unsafe or unfair, despite an otherwise proper trial. Sentences for offences against different victims may run consecutively, but the total must remain proportionate.

The appellant was convicted at Plymouth Crown Court of historic sexual offences against S, the daughter of his former wife, and M, his step-grandson. The offences included buggery, indecent assault on S, and three indecent assaults on M. He received a total sentence of eight years’ imprisonment.

He appealed against conviction on grounds that the long delay made a fair trial impossible, that there was no case to answer on the counts concerning S, that the summing-up on one count was inadequate, and that the convictions should be set aside under the residual safety jurisdiction. He also appealed against sentence, principally on totality and personal mitigation.

The central issue was whether the delay and resulting loss of potential evidence prevented a fair trial or otherwise rendered the convictions unsafe.

1. The appeal against conviction was dismissed. The correct question on an application to stay historic allegations is whether a fair trial remains possible despite the delay. The passage of time does not itself justify a stay. The judge must assess all the circumstances, including the available evidence, the loss of potential evidence, the ability to challenge the allegations, and the directions available to the jury.

2. The defendant must raise the issue and identify the respects in which a fair trial is said to be impossible. The court accepted that the Crown may then be required to satisfy the court that a fair trial remains possible. It held, however, that this made no substantive difference to the approach in Attorney General’s Reference No 1 of 1990 [1992] QB 60.

3. The Recorder had been entitled to leave the issues to the jury. He had considered the death of Marianne, the absence of medical evidence, the difficulty of fixing dates, and the limited material available to the defence. His clear directions required the jury to allow for the effect of delay and to acquit unless sure of guilt. The appellant retained material means of challenge, including his own evidence, J’s evidence, character evidence and photographs.

4. The residual jurisdiction described in R v B [2003] EWCA Crim 319 was exceptional and did not apply. Unlike that case, this was a sharp conflict of evidence which the jury could fairly resolve. The acquittals on two counts demonstrated care in assessing the evidence. There was sufficient evidence to leave count 2 to the jury, and the summing-up adequately made clear that the Crown’s point depended on the incident having occurred in 1974.

5. The appeal against sentence was allowed. Consecutive terms for offences against different victims were appropriate. But, applying totality and taking account of age, good character, health and the nature of the offending, the terms were excessive. The eight-year sentence was quashed and replaced with six years: one year on count 2 and five years consecutive on count 4, with the concurrent sentences on counts 5 to 7 unchanged.

• Court of Appeal (Criminal Division): Dismissed the appeal against conviction and allowed the appeal against sentence, substituting a total sentence of six years’ imprisonment: [2004] EWCA Crim 2901.
• Crown Court at Plymouth: The appellant was convicted of buggery and indecent assaults and sentenced to a total of eight years’ imprisonment.