Hereworth v R.

A criminal trial should be stayed for abuse of process because evidence has been lost only where the resulting prejudice is so serious that a fair trial is impossible. The assessment is fact-specific. A stay remains rare where the complainant is not at fault for the delay, and prejudice may be addressed by fair directions and presentation of the defence case.

Mere speculation that missing records or witnesses might have assisted the defence does not establish unfairness. Where surviving material enables the defence to advance its case and permits the jury to assess its significance, the public interest favours trial.

The appellant was convicted at the Crown Court at Leicester of historical sexual offences against M, the daughter of his former partner, and of indecent assaults against M’s sister, E. The alleged offences occurred in 1983 and 1984, but the first complaint was made in 2006.

On appeal, the principal contention was that the loss of school, police and other contemporaneous records made a fair trial impossible and required a stay for abuse of process. The appellant also sought to raise complaints about the conduct of the trial and to adduce fresh psychiatric material concerning M. He appealed separately against a total sentence of 15 years’ imprisonment.

Decision

1. The court dismissed the appeal against conviction. The judge had been entitled to refuse a stay for abuse of process. A stay is justified only where missing evidence causes such serious prejudice that a fair trial is impossible.

2. The governing assessment is fact-sensitive. It must take account of the rarity of a stay where the complainant is not at fault, the capacity of fair directions to alleviate prejudice, the understandable reasons why an alleged victim may delay reporting, and the public interest in trying a case that can fairly be tried. The court drew those principles from Attorney General’s Reference No. 1 of 1990 [1992] QB 630, R v Maybury [2003] EWCA Crim 782, R v Sheikh [2006] EWCA Crim 2625, and R v Mackreth [2009] EWCA Crim 1849.

3. The surviving social-services records provided some support for the defence account of M’s whereabouts. The appellant could also give evidence. The possible content of lost school, police or other records was speculative. Unlike the records considered in R v Sheikh, the missing material was not shown likely to be decisive of the appellant’s opportunity to commit the offences. The jury could assess whether the surviving records undermined M’s account. The trial was therefore fair.

4. The summing-up fairly identified the absence of records and the surviving notes. The complaints about the treatment of inconsistencies and the judge’s conduct disclosed no unfairness. The proposed fresh evidence was ambiguous, did not cast doubt on M’s account, and had not been used at trial when there had been an opportunity to seek her recall. It did not affect the safety of the convictions. Leave to argue the remaining conviction grounds was refused.

5. The sentence appeal was also dismissed. Although severe, the 15-year sentence was not manifestly excessive given the appellant’s position of trust, repeated abuse, violence and fear, and the consequences for the family.

• Court of Appeal (Criminal Division) — dismissed the appeals against conviction and sentence in [2011] EWCA Crim 74.
• Crown Court at Leicester — on 12 November 2009, convicted the appellant of sexual offences and imposed a total sentence of 15 years’ imprisonment.