E, R v

A stay of an indictment for abuse of process because of delay is exceptional. It requires the defendant to show that delay has caused prejudice which makes a fair trial no longer possible and which cannot fairly be addressed through the ordinary trial process.

Speculation about the contents of missing records, or about assistance a deceased witness might have given, will not establish such prejudice. The court must identify evidence directly relevant to the defence which has been lost, consider the evidence that remains, and assess the significance of any loss in the case as a whole. Appropriate jury directions may address the ordinary difficulties of historic allegations.

The appellant was convicted at Truro Crown Court on 14 counts concerning sexual abuse alleged by four complainants. Counts 1 to 12 concerned three members of his family and allegations dating from 1975 to 2000. Counts 13 and 14 concerned a fourth complainant and more recent allegations.

Before trial, the appellant sought a stay of the family counts for abuse of process. He relied on historic police involvement, the absence of further police records, the long delay, and the death of his former wife, whom he said might have assisted the defence. The trial judge refused the application and the appellant was convicted on all counts.

On appeal, the central issue was whether those matters had caused incurable prejudice so that a fair trial was no longer possible. A separate ground concerned whether counts 5 and 6 alleged an offence under the statutory age limit applicable at the time.

1. The appeal was dismissed on the abuse-of-process ground. The governing principle was that a stay for delay is available only exceptionally, where delay has caused prejudice which makes a fair trial impossible and which ordinary trial safeguards cannot fairly cure. The burden lies on the defendant. The justification for delay matters only insofar as it illuminates prejudice.

2. The court followed Attorney-General’s Reference (No 1 of 1990) [1990] 1 QB 630, as restated in CPS v. F [2011] EWCA Crim 1844. The judge had been entitled to conclude that the appellant could receive a fair trial. There was no identified error of principle and no exceptional feature creating incurable prejudice.

3. The alleged loss of police material was speculative. It was uncertain whether any further material records had existed, what they would have contained, or how they could have assisted the defence. The appellant could in any event rely on the fact that the earlier allegations had not led to a complaint or further police action.

4. The death of the appellant’s former wife did not justify a stay. There was no basis for assuming that her evidence would have assisted him; the available circumstances suggested the contrary. The court also noted the established use of careful jury directions to address the difficulties of historic abuse cases.

5. The appeal was allowed in part on the formal statutory ground. At the time alleged in counts 5 and 6, section 1(1) of the Indecency with Children Act 1960 required proof that the child was under 14, not under 16. It could not be established with the necessary assurance that the complainant was under 14. Those convictions and their concurrent sentences were quashed, but the remaining convictions and total sentence of seven years’ imprisonment were unaffected.

• Court of Appeal (Criminal Division): Allowed the appeal only to quash convictions on counts 5 and 6; dismissed the challenge to the refusal of a stay for abuse of process.

• Crown Court at Truro: On 14 October 2011, His Honour Judge Elwen QC convicted the appellant on all 14 counts and imposed a total sentence of seven years’ imprisonment.