BH, R. v

A lengthy delay in reporting an historic sexual allegation does not of itself require a stay for abuse of process. The applicant must identify specific prejudice showing that a fair trial is not possible. Where the trial judge is entitled to conclude that a fair trial remains possible, a clear direction requiring the jury to allow for the effect of delay on memory and the defendant’s ability to answer the allegation may provide an appropriate safeguard.

The applicant, aged 72, was convicted by a majority at Derby Crown Court on 28 April 2011 of raping his stepdaughter between 1969 and 1971, when she was aged 11 or 12. The allegation was first made in 1997. He denied it.

The conviction followed a retrial after this court had quashed earlier convictions for two counts of rape and ordered a retrial. At the retrial, the judge refused an application to stay the indictment for abuse of process based on delay. On renewal of his application for leave to appeal against conviction, the applicant contended that the delay, absence of corroboration, and limits on exploring possible collusion prevented a fair trial.

1. The renewed application for leave to appeal against conviction was dismissed. The proposed grounds had no prospect of success.
2. The substantial period between the alleged offences and trial did not establish an abuse of process. Although the delay was lengthy, the applicant had identified no specific prejudice caused by it that prevented a fair trial.
3. The trial judge was entitled, in the exercise of discretion, to conclude that a fair trial remained possible. The judge had carefully considered and rejected the stay application, as had occurred at the first trial.
4. The summing-up supplied proper safeguards. The jury were clearly directed to take account of the effect of delay on memory and of the additional difficulty the defendant might face in answering an allegation concerning events long past.
5. There was no basis on which the court could regard the conviction as unsafe.

• Court of Appeal (Criminal Division): Renewed application for leave to appeal against the retrial conviction dismissed.
• Crown Court at Derby: On retrial, the applicant was convicted by a majority verdict of rape on 28 April 2011.
• Court of Appeal (Criminal Division): On 15 December 2010, the applicant’s earlier convictions on two counts of rape were quashed and a retrial was ordered.