S, R. v

A permanent stay for abuse of process arising from delay is exceptional. The judge must assess whether, in all the circumstances, a fair trial remains possible. Serious prejudice to the defence is required before a stay can be justified, and the judge should take account of evidential controls and appropriate jury directions. The inquiry is an exercise of judicial assessment rather than evidence-based fact-finding, so language of legal burden and standard of proof may mislead.

Under section 98 of the Criminal Justice Act 2003, a police caution may constitute evidence of bad character because misconduct is not confined to conduct resulting in a conviction or caution.

The appellant was tried at Plymouth Crown Court for historic sexual offences alleged by his two younger sisters. He was acquitted of offences concerning one sister, but convicted of rape and two specimen counts of indecent assault concerning the other sister. The allegations related to conduct in the late 1970s and were first reported in 2004.

He appealed against conviction after the trial judge refused a stay for delay and admitted evidence of a 2004 caution. He also appealed against sentence. The central question was whether the delay and its consequences meant that a fair trial was no longer possible.

1. Sentence varied. The court quashed the four-year sentences imposed for each indecent-assault count. The maximum lawful sentence when those offences were committed was two years. It substituted concurrent sentences of two years on each count, concurrent with the unchanged seven-year sentence for rape.
2. Bad character. The renewed challenge to the admission of the 2004 caution was unarguable. Section 98 of the Criminal Justice Act 2003 defines bad character as evidence of, or of a disposition towards, misconduct. Misconduct is not confined to conduct leading to a conviction or caution. A caution can therefore fall within the statutory definition.
3. Delay and abuse of process. A stay application based on delay requires a judicial assessment, rather than a finding of fact governed by an orthodox legal burden and standard of proof. The ultimate question is whether a fair trial remains possible despite the delay. A permanent stay is exceptional, especially where neither the complainant nor the prosecution is at fault. It should not be granted unless serious prejudice means that no fair trial can take place. The judge must also consider evidential powers and whether the trial process and directions can fairly address the effects of delay.
4. The trial judge had considered the asserted prejudice, including the lapse of time, deaths of potential witnesses, unavailable records, the former home, and lack of precise dates. The directions on delay were adequate. The court was satisfied that a fair trial remained possible and that the conviction was not unsafe. The appeal against conviction was dismissed.

• Court of Appeal (Criminal Division): In this judgment, [2006] EWCA Crim 756, the court dismissed the appeal against conviction but varied the sentences for indecent assault.
• Plymouth Crown Court: On 1 April 2005, following trial before His Honour Judge Gilbert QC, the appellant was convicted of rape and two counts of indecent assault. He received seven years' imprisonment for rape and concurrent four-year sentences for the indecent assaults.