JS v Regina

In a trial of historic sexual allegations, a conviction is safe only if the jury receives rigorous, case-specific directions on the effect of delay. The directions must address delay’s effect on the cogency of the evidence, the defendant’s ability to answer the allegations, and the prosecution’s continuing burden to make the jury sure of guilt.

An understandable delay in complaint does not remove the need to consider any real disadvantage caused to the defence. Directions on good character, uncharged misconduct, mutual support, collusion and alleged lies must also be tailored to the evidence and to the effects of the delay. Material deficiencies may make the trial unfair and the verdicts unsafe.

The appellant was convicted at Norwich Crown Court of 16 historic sexual offences, including indecent assaults and rape, alleged by three complainants between 1969 and 1988. He received a total sentence of 13 years’ imprisonment.

The single judge refused leave to appeal conviction and sentence. The Full Court refused leave to appeal sentence but granted leave to appeal conviction. The appeal challenged, among other matters, the absence of an abuse-of-process application, alleged deficiencies in the defence, and the trial judge’s summing up.

The central issue was whether directions given in a trial involving delays of 18 to 37 years sufficiently protected against the resulting forensic prejudice and permitted the verdicts to be regarded as safe.

1. Appeal allowed; convictions quashed. The court held that the summing up was so defective in its guidance and directions that the trial was unfair and the verdicts were unsafe.

2. In historic sexual-offence cases, delay must be an operative part of the jury’s reasoning. The jury must be directed, in terms tailored to the evidence, to consider delay’s effect upon the cogency of the prosecution evidence and upon the defendant’s capacity to formulate and present a defence. Above all, the directions must make clear that the prosecution retains the burden of making the jury sure of guilt despite those effects.

3. The directions given did not meet that standard. They did not connect delay with the burden and standard of proof. They risked treating discrepancies in the prosecution evidence as material only if no reasonable explanation existed, focused largely on the complainants’ recollection difficulties, and understated the possible prejudice to the appellant and his witnesses. They also omitted relevant features, including that there were no ongoing threats maintaining silence and that contemporaneous medical records had disproved the complainant’s allegation that the appellant caused her pregnancy.

4. The court identified further shortcomings which reinforced that conclusion. The appellant was entitled to a proper two-limb good-character direction. The direction on alleged uncharged misconduct did not adequately identify the misconduct or provide a sufficient statutory framework. General directions on mutual support, complaints and collusion were not tied to the relevant evidence. The direction on alleged lies did not account for the delay and the later correction of the appellant’s police account.

5. The court made no further ruling on abuse of process or alleged professional incompetence, so as not to constrain any application for a retrial or the discretion of a new trial judge.

• Court of Appeal (Criminal Division) — The Full Court granted leave to appeal conviction, having refused leave to appeal sentence. It allowed the conviction appeal and quashed the convictions: [2008] EWCA Crim 2788.
• Norwich Crown Court — A jury convicted the appellant on 16 counts on 3 October 2006. Judge Downes imposed a total sentence of 13 years’ imprisonment.