Simpson, R. v

A long delay and the resulting loss of potential evidence do not require a criminal prosecution to be stayed where the defence can test the resulting disadvantage at trial and the remaining prosecution evidence is not tainted. A later conviction of a complainant will not be admitted as bad-character evidence under Criminal Justice Act 2003 section 101 unless it is capable of supporting a proper application.

A sentencing judge must fix the appropriate sentence without working backwards from parole or release arrangements. On appeal, a severe sentence will stand unless it is wrong in principle or manifestly excessive.

R v Simpson concerned an appeal from the Crown Court at Sheffield, where the appellant was convicted of rape and sentenced to eight years’ imprisonment. The offence had occurred in 1989. The prosecution was later reopened after DNA recovered from vaginal swabs matched the appellant.

The appellant had initially sought to challenge his conviction on the basis of delay and lost evidence. A further point concerned a 1991 conviction of the complainant. He was granted leave to appeal against sentence, initially on the effect of changed release arrangements, and then pursued an argument that eight years was excessive. The court considered whether the conviction should stand and whether the sentence was wrong in principle or manifestly excessive.

1. The court dismissed the appeal. It declined to permit withdrawal of the renewed application for leave to appeal against conviction because of the appellant’s disability and the limited nature of counsel’s instructions. It nevertheless rejected the challenge substantively.
2. The long delay and loss or destruction of material had caused some forensic disadvantage. However, the complainant’s DVD interview and the HO Lab 3 report contained a clear allegation of rape. The defence had been able to explore discrepancies and credibility at trial. The lost material did not taint the evidence relied upon by the prosecution. The court therefore agreed with the trial judge’s refusal to stay the proceedings as an abuse of process.
3. The complainant’s 1991 conviction, arising from an unrelated confrontation during her boyfriend’s arrest, could not have been admitted as bad-character evidence under section 101 of the Criminal Justice Act 2003. It consequently provided no basis for suggesting that the trial might have taken a different course.
4. The court reaffirmed that sentencing is not to be adjusted by working backwards from the period likely to be served under release arrangements. Round and others [2009] EWCA Crim 2667 had resolved that point, consistently with Bright [2008] EWCA Crim 462.
5. The eight-year sentence was severe, but the judge had considered the appellant’s mental condition, the absence of other sexual offending, the absence of dangerousness, and the lack of substantial pre-planning. He had also identified serious aggravating features, including the complainant’s vulnerability, violence, threats and isolation. The sentence was neither manifestly excessive nor wrong in principle.

• Court of Appeal (Criminal Division): [2010] EWCA Crim 2266. The court rejected the renewed challenge to conviction and dismissed the appeal against sentence.
• Crown Court at Sheffield: The appellant was convicted of rape and sentenced to eight years’ imprisonment. No citation for that decision is stated in the judgment.