F, R v

A criminal prosecution brought after a long delay must be stayed for abuse of process if, and only if, the court is satisfied on the balance of probabilities that the delay makes a fair trial impossible. The court must identify evidence directly relevant to the defence which has been lost, consider surviving evidence, and assess the practical importance of the loss. Speculation about unavailable material is insufficient.

Jury directions may sometimes address prejudice caused by delay, but they cannot cure a case in which important independent evidence and meaningful material for cross-examination have disappeared. Unjustified delay by a complainant is relevant, while recognising the genuine reasons why victims of sexual abuse may delay disclosure.

The appellant was convicted at Woolwich Crown Court of 13 historic sexual offences against his step-daughter and daughter, alleged to have been committed between the 1970s and early 1980s. He denied every allegation and contended that the passage of time had deprived him of potentially important evidence, including the testimony of a deceased grandmother, records of her hospital admissions, evidence about the layout of her home, and his work records.

At the end of the evidence, the trial judge refused an application to stay the indictment for abuse of process. The jury returned unanimous guilty verdicts on all counts and the appellant received 14 years’ imprisonment. On appeal, the central issue was whether the delay had made a fair trial impossible despite directions available to the trial judge.

1. Appeal allowed. The court quashed all 13 convictions. The trial judge had been wrong to conclude that appropriate jury directions could secure a fair trial.

2. The governing question in a delayed criminal prosecution is whether, on the balance of probabilities, the delay means that a fair trial is impossible. The assessment requires close attention to evidence directly relevant to the defence that has been lost, evidence which remains available, and the real importance of the missing material in the case as a whole.

3. The delay here was exceptionally long. It impaired the recollection of all principal witnesses and deprived the appellant of potentially significant independent evidence concerning his whereabouts, the grandmother’s house and hospital admissions. The complainant’s failure to report the allegation made in 1984 was not justified on the evidence before the court.

4. Although the prosecution relied on the mother’s evidence concerning one count, that evidence did not remove the unfairness. The defence alleged collusion, there were material inconsistencies, and the appellant lacked independent material with which to test the allegations. As in R v B [2003] EWCA (Crim) 319 and R v Joynson [2008] EWCA Crim 3049, no jury direction could compensate for that prejudice.

5. It was therefore unnecessary to determine the subsidiary complaints about the summing up.

• Court of Appeal (Criminal Division): allowed the appeal and quashed the convictions: [2011] EWCA Crim 726.
• Woolwich Crown Court: the appellant was convicted unanimously on 13 counts of historic sexual offending and sentenced to 14 years’ imprisonment.