Leslie B, R. v

In a prosecution for historic offending, delay alone does not justify a stay for abuse of process. Where there has been no prosecutorial misconduct, the defence must show serious prejudice, or a real possibility of serious prejudice, such that a fair trial is no longer possible. The case must be exceptional.

The assessment is practical. It must consider the accused’s actual ability to challenge the allegations, advance a positive case and call available evidence, and the real materiality of lost records. Careful jury directions can address prejudice caused by delay.

Uncharged misconduct may be admitted as bad-character evidence if it falls within a statutory gateway and its admission would not adversely affect the fairness of proceedings.

The appellant was convicted at a retrial in Norwich Crown Court of eight counts of rape and three counts of cruelty to a person under 16. The allegations concerned sexual and physical abuse of his daughter during her childhood, more than 30 years before her complaint to the police. He received a total sentence of 11 years’ imprisonment.

The trial judge refused a renewed application to stay the proceedings for abuse of process despite missing employment, bank, police, medical and other records. He also admitted evidence from the appellant’s second wife of domestic violence, as bad-character evidence relevant to propensity and to correct a false impression. The appeal challenged the refusal of a stay, the directions on delay, the admission of that evidence, and the safety of the convictions.

1. Appeal dismissed. The convictions were safe. The trial judges were entitled to refuse a stay for abuse of process.

2. Where there has been no misconduct by the prosecution, the decisive question is whether delay and the circumstances of the allegations mean that the accused can no longer receive a fair trial. The defence bears the burden of showing serious prejudice, or a real possibility of it, and that the case is exceptional. There is no general limitation period for such criminal offences, and even a delay of several decades is insufficient by itself.

3. The appellant could receive a fair trial. He was able to challenge substantial parts of the prosecution evidence, give his own account and call family witnesses who denied abuse. His Merchant Seaman’s Log assisted his case on his periods at sea. The missing records were peripheral to the principal dispute or could be used by the defence to support an alternative inference. The difficulties caused by delay were therefore not insuperable.

4. The directions on delay were adequate. They identified the specific disadvantages said to affect the defence and correctly directed the jury to allow for fading memories and the defendant’s difficulty in answering old allegations. The judge was not required to ignore the effect of delay on prosecution witnesses when giving an otherwise tailored and balanced direction.

5. The evidence of the second wife was properly admitted under Criminal Justice Act 2003. A previous conviction is not required for evidence of misconduct to amount to bad-character evidence. The evidence was admissible through the statutory gateways and the appellant had sufficient information and ability to meet it. Its admission did not adversely affect the fairness of the proceedings.

• Court of Appeal (Criminal Division): Dismissed the appeal against conviction: [2006] EWCA Crim 2150.
• Norwich Crown Court (retrial): Convicted the appellant of eight counts of rape and three counts of cruelty to a person under 16, and imposed a total sentence of 11 years’ imprisonment.