Brizzalari v R

A criminal investigation that has been closed is not thereby put on hold. Where a later investigation is a distinct investigation to which the new statutory disclosure regime applies, it is the later investigation that determines the applicable committal procedure.

A stay for delay is exceptional. The defendant must show, on the balance of probabilities, that a fair trial cannot be held or that it would be unfair to try him. Directions on delay must be tailored to the case and assessed by reading the summing-up as a whole.

In a false-allegation case, independent similar accusations may mutually support one another where their common features have probative force beyond mere propensity. A prosecutor should invoke adverse-inference provisions only where the individual case merits it.

The appellant, a former residential care worker at Scawby Grove, was convicted after a six-week trial of multiple offences of indecent assault, rape and buggery against former residents and a junior member of staff. The allegations concerned conduct said to have occurred between the mid-1980s and early 1990s. He received a total sentence of 15 years’ imprisonment.

He appealed against conviction on grounds including the committal procedure, abuse of process caused by delay and missing records, severance, mutually supporting evidence, adverse inferences under section 34, and late disclosure. He also appealed against sentence. The central issues were whether the convictions were unsafe and whether the total sentence was manifestly excessive or wrong in principle.

1. Both appeals were dismissed. The convictions were safe and the total sentence of 15 years’ imprisonment was severe but not manifestly excessive or wrong in principle.
2. The court held that the relevant prosecution resulted from Operation Juno. The earlier 1991–1992 investigations had been completely closed, rather than put on hold. Accordingly, no relevant criminal investigation had begun before the appointed day for the purposes of Criminal Procedure and Investigations Act 1996, Part I, and the new committal regime applied ([1999] 164 JP 209 followed).
3. In any event, a defect in committal proceedings would not have vitiated the Crown Court proceedings absent injustice. The appellant had not sought the attendance of any complainant at committal, and there was no demonstrated unfairness.
4. The judge was entitled to refuse a stay. Although delay and missing material created potential prejudice, substantial records remained available and the defence could test the allegations. The summing-up gave a clear warning about faded memory, missing documents and the possible difficulties for the defence. Read as a whole, it fairly addressed those matters.
5. The refusal to sever the staff member’s allegations was proper. In a case where the defence alleged that all complainants were lying, independent accusations could have probative mutual support if their similarities went beyond coincidence and mere propensity. The judge correctly identified the possible similarities, required separate consideration of every count, and warned against reasoning from propensity.
6. The judge was entitled to leave the two matters raised at trial under section 34 to the jury. They were capable of being facts relied on in the defence which the appellant could reasonably have mentioned when questioned. The court nevertheless cautioned prosecutors against routinely invoking section 34 outside cases which warrant it, particularly the no-comment or ambush-defence mischief.
7. The late-disclosed material concerning one complainant was, at most, marginal. Even treating it as material that should have been disclosed, it did not render any conviction unsafe.

• Court of Appeal (Criminal Division): dismissed the appeals against conviction and sentence: [2004] EWCA Crim 310 .
• Crown Court: His Honour Judge Heppel QC presided over the trial, at which the appellant was convicted on multiple sexual counts and sentenced to 15 years’ imprisonment.