E, R. v

A special warning about delay or a special need for caution in allegations of sexual abuse is not mandatory merely because the complainant was young when the alleged abuse occurred or because time has passed. The need for, and terms of, any warning remain matters for the trial judge’s discretion, informed by the evidence and any identified forensic prejudice.

Expert memory evidence which assesses the plausibility, detail or truthfulness of a child’s account will be admissible only exceptionally. In the absence of a relevant disability or other particular difficulty, reliability remains a matter for the jury, subject to the prosecution’s burden to make it sure of guilt.

Following a retrial at Stoke-on-Trent Crown Court, the appellant was convicted of five counts of rape and one count of indecent assault, contrary to the Sexual Offences Act 1956. The complainants were his daughter, stepdaughter and wife. He received a total sentence of 12 years’ imprisonment.

With leave, he appealed against conviction, alleging inadequacies in the summing-up. He contended that the judge should have given additional directions on delay, caution, good character, distress and recent complaint. He also sought to adduce fresh expert evidence concerning memory of early childhood events. The central question was whether any of those matters rendered the convictions unsafe.

1. Appeal dismissed. The trial was fair and nothing advanced on appeal cast doubt on the safety of the verdicts.
2. A warning about delay or a special need for caution was not required. Under R v Makanjuola [1995] 2 Cr App R 469, the question is one for the trial judge’s discretion in light of the evidence and issues. The defence had identified no specific difficulty caused by delay. The jury was well aware of the time elapsed, and the delay was capable of assisting the defence because the girls had made no earlier complaint and had continued contact with the appellant. R v Percival was not a general blueprint for directions in delay cases; its effect was fact-specific, as explained in R v M [2000] 1 Cr App R 49.
3. The standard two-limbed good-character direction was sufficient. The jury knew that no allegation had been made against the appellant outside the family before these proceedings. There was no conceivable prejudice from the absence of further emphasis. Nor did the evidence of distress after disclosure, or the inconsistency about whether the girls had discussed events, require directions on independent support or recent complaint. That evidence was not deployed as proof that the abuse had occurred.
4. The court refused to receive Professor Conway’s report or evidence. The exceptional circumstances in R v JH and TG [2006] 1 Cr App R 10 were absent. Applying R v JCWS and R v W [2006] EWCA Crim 1404, memory research evidence should be scrutinised with great care and should not usurp the jury’s function of deciding whether a complainant is truthful and accurate. There was no evidence of mental disability, learning difficulties or another particular basis for expert assistance.

1. Court of Appeal (Criminal Division) — Dismissed the appeal against conviction: [2009] EWCA Crim 1370.
2. Stoke-on-Trent Crown Court — Following a retrial, convicted the appellant on 24 October 2003 of five counts of rape and one count of indecent assault, and imposed a total sentence of 12 years’ imprisonment on 18 December 2003. No citation was stated.