MacKreth (Deceased), R v

A prosecution for historic sexual offences should be stayed for delay only where the delay or loss of material causes concrete prejudice such that a fair trial cannot be held. Missing documents do not suffice merely because they might have assisted the defence. Their absence must be specifically linked to a real issue on which they could materially affect the fairness or safety of the trial.

Careful judicial directions, disclosure, and the surviving evidence may adequately protect a defendant. The possibility that a complainant hopes for compensation does not itself make the evidence unreliable. Non-disclosure or inaccurate evidence about compensation makes a conviction unsafe only where it creates material unfairness.

The appellant was convicted at Liverpool Crown Court in July 2000 of 23 counts of indecent assault and 10 counts of rape. The offences were alleged to have been committed between 1972 and 1977 while he worked at a residential care home for young persons.

More than six and a half years after conviction, and after the appellant’s death, his personal representative pursued an out-of-time application for leave to appeal. She contended that delay, the destruction or loss of records from earlier investigations and the home, and defects in disclosure concerning complainants’ compensation claims rendered the convictions unsafe.

The central issues were whether the missing material caused irremediable prejudice and whether the compensation evidence and disclosure failures undermined the safety of the convictions.

1. The application for an extension of time was refused. The court nevertheless considered the proposed appeal on its merits and held that the convictions were safe.

2. The governing principles for a stay for abuse of process based on delay remained those stated in Attorney-General’s Reference (No 1 of 1990) [1992] QB 630. A stay is exceptional. The decisive question is whether the defendant has suffered prejudice so serious that a fair trial cannot be held. Later authorities had not introduced a new jurisprudence for historic-abuse cases.

3. The cases in which convictions had been quashed because records were missing involved documents bearing directly and potentially decisively on a live issue, such as whether the accused could have committed a particular offence or whether a complainant had previously made a materially different allegation. In this case, the suggested uses of the missing records were speculative. The 2000 complainants were not shown to have been involved in the earlier proceedings, and substantial contemporaneous material had survived.

4. The trial judge had carefully considered the application to stay and had given full directions about delay, missing documents, independence between complainants, and the prosecution’s burden of proof. The defence had been free to investigate the earlier proceedings outside the jury’s presence, but chose not to do so. The court found no basis to conclude that the trial had been unfair.

5. There were faults concerning evidence and disclosure about compensation claims. However, the jury knew that the two sisters had approached solicitors and could assess whether compensation affected their reliability. The prospect of compensation did not itself make their evidence untrue or unreliable, and the faults did not materially undermine the convictions.

6. The application was lodged over six and a half years late. The explanation did not justify the substantial delay, and no ground existed to extend time.

• Court of Appeal (Criminal Division): Refused the deceased appellant’s personal representative an extension of time to pursue an application for leave to appeal, having considered and rejected the proposed grounds on their merits.
• Liverpool Crown Court: On 5 July 2000, the appellant was convicted of 23 counts of indecent assault and 10 counts of rape and sentenced to five years’ imprisonment.