Paul A, R. v

In historic-abuse prosecutions, substantial delay does not by itself make a conviction unsafe. The appellate court must nevertheless scrutinise the case with particular care where the complainant was young and the delay has caused identifiable prejudice to the defence.

The effect of inadmissible evidence, lost records, unavailable witnesses and other consequences of delay must be assessed cumulatively. A direction to disregard inadmissible material may not cure the prejudice where it could affect the jury’s assessment of an important defence witness. Directions on delay should address the case-specific effects on the defence, without applying a fixed formula.

The appellant was convicted at the Crown Court at Ipswich of three counts of indecent assault alleged to have been committed on his stepdaughter between 1975 and 1985. He was acquitted of two rape counts and received concurrent sentences of two years’ imprisonment.

The prosecution depended substantially on the complainant’s evidence. The appellant denied all offending. At trial, the jury heard inadmissible allegations that he had repeatedly used violence towards his wife, who later gave evidence for the defence. The appellant appealed against conviction, relying on the long delay, lost medical, social-services and police records, unavailable potential witnesses, the inadmissible evidence, and alleged deficiencies in the directions.

The central issue was whether the convictions were safe when those matters were considered cumulatively.

1. Appeal allowed. The convictions for indecent assault were unsafe and were quashed.

2. Historic-abuse cases, like all criminal appeals, depend on their particular facts. The court drew from R v B [2003] 2 Cr App R 197, R v Smolinsky [2004] 2 Cr App R 661 and R v Terence E [2004] 2 Cr App R 621 the principle that, where there has been lengthy delay and the complainant was young at the relevant time, the court must scrutinise the safety of the conviction with particular care. Delay, however extensive, does not itself cast doubt on safety.

3. The jury had heard inadmissible evidence that the appellant had repeatedly been violent towards his wife. Although the judge directed the jury to disregard it, the court could not be confident that the direction removed its effect. The wife was an important defence witness. The evidence could improperly have affected the jury’s assessment of her reliability and of whether she had been influenced by the appellant. Given that the evidence emerged at the beginning of the trial, the jury should have been discharged and a fresh jury empanelled.

4. That error had to be assessed with the specific prejudice caused by the lapse of time. Medical and social-services records were unavailable. Police records of the first complaints were inadequate. The appellant’s mother had died, and potential witnesses from the Samaritans could not be traced to test an account material to an alleged offence. Taken together with the inadmissible evidence, those matters prevented the court from regarding the convictions as safe.

5. As additional guidance, a judge in an appropriately delayed case should address the identified effects of delay on the conduct of the defence, as contemplated in R v Percival The Times Law Reports July 20th 1998. There is no universal template for such directions: see R v M [2000] 1 Cr App R 49. The absence of a direction that earlier complaints were not independent confirmation, and the differing verdicts on separate counts, would not alone have made the convictions unsafe.

• Court of Appeal (Criminal Division): Allowed the appeal and quashed the convictions: [2005] EWCA Crim 2941.
• Crown Court at Ipswich: On 30 November 2004, convicted the appellant of three counts of indecent assault and acquitted him of two rape counts.