RD, R. v

A stay for delay in prosecuting historic offences is exceptional. It is justified only where delay has caused prejudice which the trial process cannot fairly address, so that a fair trial is no longer possible.

The court must distinguish speculation about lost evidence from a significant and demonstrable prospect that it would have provided decisive or strongly supportive evidence on a specific issue. It must assess that evidence in the context of the case as a whole and decide whether clear directions can cure any resulting prejudice.

Issues such as inconsistencies, alleged collusion and delayed reporting ordinarily go to the jury’s assessment of guilt. They do not, without demonstrable prejudice caused by delay, require a stay.

The appellant was convicted at Kingston upon Thames Crown Court of historic sexual offences against four complainants. The allegations spanned 1949 to 1973. He received an effective sentence of 11 years’ imprisonment.

Before trial, and again after the complainants had given evidence, the trial judge refused applications to stay the proceedings for abuse of process. The defence relied on the exceptional delay and the loss of military, employment, school, medical and family evidence. The appellant appealed against conviction and pursued an application concerning sentence.

The central issue was whether the missing evidence caused serious prejudice which made a fair trial impossible, or rendered the convictions unsafe.

1. The court dismissed the appeal against conviction and the application concerning sentence. The convictions were safe and the effective sentence of 11 years’ imprisonment was not excessive.

2. Following the approach stated in R v F (S) [2011] 2 Cr.App.R 28, a stay for delay is exceptional. It is available only where prejudice caused by delay cannot fairly be addressed at trial and means that a fair trial is no longer possible. The court must distinguish speculation about absent material from a significant and demonstrable prospect that it would have yielded decisive or strongly supportive evidence on a specific issue.

3. The trial judge correctly applied that approach. The alleged collusion, inconsistencies and delayed reporting concerned the jury’s assessment of guilt, rather than prejudice caused by delay. The broad and non-date-specific allegations also meant that the case did not raise an alibi in the true sense. The material issue was whether the jury could be sure that the appellant had used acknowledged opportunities to commit the offences.

4. Although delay caused some detriment, the absent records and witnesses were either speculative, of limited value, or unlikely materially to advance the defence. There were significant opportunities for the alleged offending, and the judge gave proper directions about delay and missing evidence. The trial process could therefore deal fairly with the evidential difficulties.

5. The court endorsed the caution in R v Pope [2013] 1 Cr.App.R 14 that “lurking doubt” should be used very sparingly and never as an unreasoned subjective impression. No such concept was needed after a reasoned analysis of the evidence.

6. On sentence, the judge’s 16-year starting point and five-year reduction for age, health, separation from his wife and lack of later offending properly reflected the seriousness of the offending and the available mitigation.

• Court of Appeal (Criminal Division): Appeal against conviction dismissed and application concerning sentence dismissed: [2013] EWCA Crim 1592.

• Crown Court at Kingston upon Thames: The appellant was convicted on 24 October 2012 of historic sexual offences and received an effective sentence of 11 years’ imprisonment. Applications to stay the proceedings for delay were refused before trial and after the complainants’ evidence.