Ahmed, R. v

In a prosecution brought after substantial delay, any jury direction on delay must be tailored to the evidence and real issues at trial. Where delay has caused, or may have caused, material forensic prejudice to the defendant, the jury should consider that prejudice when deciding whether the prosecution has proved guilt.

A separate and focused direction on the defendant’s disadvantage will often be preferable. However, a conviction is not unsafe if the summing-up, viewed as a whole, identifies the relevant prejudice and links it to the burden and standard of proof. A judge need not leave a merely theoretical defence which the parties did not pursue.

The appellant was convicted at Isleworth Crown Court of four counts of indecent assault contrary to the Sexual Offences Act 1956, alleged to have occurred at a Buddhist temple in 1978 when the complainant was a child. He was acquitted of rape and of counts concerning a second complainant.

He was sentenced to seven years’ imprisonment. His conviction appeal concerned the 34-year delay before trial and the adequacy of the jury direction on its consequences, particularly for identification. His sentence appeal challenged the total term and protective orders. The central issue was whether the delay direction rendered the convictions unsafe.

1. Convictions. The appeal against conviction was dismissed. The trial was conducted on the real issue, namely whether the complainant correctly identified the appellant as her attacker, except on count 5. Although his earlier account had suggested fabrication, that defence was not pursued at trial. The judge was not required to construct or leave a theoretical defence that the assaults had not occurred.
2. Delay. A direction in a substantially delayed case should address the material disadvantage which delay may cause the defendant, including fading memory, lost evidence and uncertain lines of enquiry. It should connect that prejudice to the prosecution’s burden and the criminal standard of proof. A short, self-contained direction focused on the defendant will often avoid diluting its protective force by interweaving other consequences of delay.
3. Here, the summing-up was not ideally structured, but it was not a misdirection. Taken globally, it identified the relevant prejudice, including unavailable witnesses, medical material and photographs, and required the jury to bear it in mind when deciding whether guilt had been proved. The evidence identifying the appellant was compelling, and the jury’s acquittals on other counts demonstrated careful consideration.
4. Sentence. The protective orders were necessary and proportionate. The total of seven years was, however, somewhat excessive. The consecutive sentence on count 5 was reduced from four years to three, producing a total of six years.

• Court of Appeal (Criminal Division). Conviction appeal dismissed; sentence appeal allowed to the limited extent of reducing the total sentence to six years.
• Isleworth Crown Court. The appellant was convicted of four counts of indecent assault and sentenced to seven years’ imprisonment. He was acquitted of rape and of counts relating to a second complainant.