CPS v F (Rev 2)

An application to stay criminal proceedings for delay-based abuse of process is distinct from a submission of no case to answer. A stay is exceptional. It requires serious prejudice caused by delay such that a fair trial is no longer possible and the ordinary trial process cannot address the prejudice.

The reasons for a delayed sexual complaint will usually concern the complainant’s credibility and are therefore for the jury. They do not independently justify a stay. A no-case submission remains governed by R v Galbraith [1981] 1WLR 1039. The judge must not assess witness reliability or usurp the jury’s role where a properly directed jury could convict. The same test applies to historic sexual allegations. A stay application should normally be determined before evidence is called.

The defendant faced allegations of historic sexual offending. At the close of the prosecution case, the Crown Court judge granted an application to stay the proceedings for abuse of process. She treated the absence of a satisfactory explanation for the complainant’s delayed report as decisive. The ruling terminated the trial and the jury was discharged.

The prosecution appealed, with leave, under section 58 of the Criminal Justice Act 2003. The central issue was whether delay and an allegedly unjustified complaint permitted a judge to stay the prosecution, or to remove the case from the jury because a conviction would be unsafe.

1. Appeal allowed. The judge applied the wrong test. No prejudice to the fairness of the trial had been identified. The matters relied on were capable of being explored through evidence and cross-examination, and were matters for the jury when assessing the complainant’s credibility.

2. An abuse-of-process stay for delay and a submission of no case to answer are separate questions. Under Attorney General’s Reference (No 1 of 1990) [1992] 1 QB 630, a stay is exceptional. The defendant must show serious prejudice caused by delay, so that no fair trial can be held. The trial process, including directions and evidential rulings, will ordinarily address difficulties created by delay.

3. The presence or absence of a satisfactory explanation for a delayed sexual complaint does not itself determine whether a stay should be granted. Such evidence will ordinarily bear on the complainant’s credibility and is for the jury. It is relevant to a stay only where it bears on proof of prejudice and the possibility of a fair trial.

4. A no-case submission is governed by R v Galbraith [1981] 1WLR 1039. A judge must direct an acquittal where the prosecution evidence is so deficient, contradictory or transparently unreliable that no properly directed jury could convict. But the judge must not weigh evidence or decide witness reliability where a jury could properly convict. Asking whether a conviction would be safe invites an impermissible intrusion into the jury’s function.

5. There is no separate or enhanced Galbraith test for historic allegations or sexual offences. Long delay may require particular care, but it does not transfer the normal evaluation of credibility from the jury to the judge. The court disapproved the contrary approach in R v Wilson and Robson [2006] EWCA Crim 2754.

6. An abuse-of-process application based on delay is ordinarily preliminary and should be heard at the outset. Deferral may be justified where the significance of unavailable evidence can only be assessed later. Otherwise, deferral risks conflating abuse of process with a no-case submission and causing unnecessary unfairness to both parties.

• Court of Appeal (Criminal Division): The prosecution’s appeal under section 58 of the Criminal Justice Act 2003 was allowed. The terminating stay for abuse of process was held to have been made by applying the wrong test.
• Crown Court at Guildford: At the close of the prosecution case, the judge stayed the proceedings for abuse of process on the basis of the delayed complaint. The jury was discharged.