Joynson, R. v

In a delayed criminal prosecution, the safety of a conviction must be assessed by reference to the actual prejudice caused by the delay and the loss of material that could test the evidence. A careful trial, searching cross-examination and a proper jury warning will not necessarily cure that prejudice.

Where missing contemporaneous records may have provided objective evidence capable of challenging apparently credible complainants, and their credibility could reinforce other allegations, the court must examine the combined effect of the loss. If the absent material cannot practically be replaced by a general warning or other safeguard, the resulting convictions may be unsafe.

The appellant was convicted at Hereford Crown Court on 27 November 2007 of twelve counts of indecent assault and two counts of buggery, alleged to have been committed while he was a house parent at a boarding school between 1969 and 1972. He received thirteen years’ imprisonment and was disqualified from working with children.

He appealed against conviction, with leave of the single judge, principally on the ground that the exceptional delay made a fair trial impossible. The school, employment, social-services and some medical records had been lost. He contended that the missing records could have objectively tested the accounts of complainants whose evidence was also capable of supporting the allegations of others.

The central issue was whether, despite the trial judge’s warnings and the opportunity for cross-examination, the convictions were safe.

1. Appeal allowed; convictions quashed. The court could not regard the convictions as safe.

2. The delay of 35 to 38 years was exceptional. It concerned allegations of abuse said to have occurred when the complainants were children, in one case as young as eight. Apparent detailed recollection after such a period did not reduce the importance of contemporaneous evidence by which its accuracy and reliability could be tested.

3. The loss of records created a real potential prejudice. Social-services and employment records might have established whether a complainant had complained about another member of staff and whether another part of his account was chronologically possible. Medical records might have tested a separate complainant’s account of a doctor’s visit and treatment. Those matters could bear not only on the individual allegations but also on the value of one complainant’s evidence in supporting another.

4. The court accepted that cross-examination and judicial directions are important safeguards. Their effectiveness, however, depends on the material available for use. Here the missing documents could have supplied objective evidence resolving matters on which the jury was otherwise left with conflicting recollections. A warning about the risks of memory after delay could not substitute for that material.

5. Standing back and considering the delay and its particular consequences together, the court held that the convictions were unsafe. It did not determine the second ground of appeal.

• Court of Appeal (Criminal Division): Allowed the appeal against conviction and quashed the convictions.

• Hereford Crown Court: On 27 November 2007, the appellant was convicted by a judge and jury of twelve counts of indecent assault and two counts of buggery. He was sentenced to thirteen years’ imprisonment and disqualified from working with children.