AT v R.

A concluded ruling of the Court of Appeal cannot ordinarily be reopened by a later constitution merely because a subsequent decision is said to have changed the law. A stay for delay in a historic sexual-abuse prosecution remains exceptional. The trial process can address real prejudice where a fair trial remains possible.

A summing-up on delay should distinguish the reasons for late complaint from prejudice to the accused. It should address the particular prejudice relied upon, but an omission does not automatically render convictions unsafe. Siblings who have discussed allegations may nevertheless give mutually supportive evidence. The decisive question is whether their evidence may be tainted or unreliable.

The appellant was convicted at Northampton Crown Court of specimen counts of indecency with a child, indecent assault and rape arising from allegations by his two daughters of repeated sexual abuse between about 1975 and 1983. He received a total sentence of nine years and nine months’ imprisonment.

An earlier judge had stayed the proceedings for delay, but the prosecution successfully appealed that ruling: [2010] EWCA Crim 630. At the subsequent trial no renewed application for a stay was made. The appellant challenged his convictions by seeking to reopen the earlier appellate ruling, adduce fresh evidence, and criticise the summing-up on delay, cross-admissibility and collusion.

The central question was whether any of those matters, individually or cumulatively, rendered the convictions unsafe.

1. Appeal dismissed. The court held that the convictions were safe after considering all grounds separately and cumulatively.

2. The earlier Court of Appeal ruling setting aside the stay could not properly be revisited by a later constitution of the same court. No English authority supported the proposed reopening, and no exceptional basis had been shown. In any event, F(S) [2011] 2 CAR 28 did not assist the appellant. It was not prescriptive about timing and recognised that the significance of absent records may best be assessed after the Crown’s case.

3. A delay-based stay remains exceptional even where serious prejudice is established. Here, despite real potential prejudice from the lapse of time, the trial process could fairly address the difficulties. A renewed stay application would not have succeeded, and it would have been improper to make one merely to obtain directions for the summing-up.

4. The proposed fresh evidence was either inconclusive, available with reasonable diligence at trial, unsigned and without evidential status, or immaterial. Applying section 23 of the Criminal Appeal Act 1968, the court refused to admit the handwriting evidence. It also refused the other evidence, including the unsigned statement which could not properly be admitted through section 114 of the Criminal Justice Act 2003.

5. A direction on delay should distinguish why a complainant delayed from the prejudice caused to the accused. The judge adequately addressed the material disadvantage caused by fading memories and lost evidence, and the burden and standard of proof. It would have been better to identify the particular lost records and other evidential disadvantages, as indicated in PS [2013] EWCA Crim 992, but the omission did not render the convictions unsafe.

6. The absence of a full cross-admissibility direction did not assist the appellant. Evidence from siblings who have discussed allegations is not automatically incapable of mutual support: the question depends on the circumstances. On the evidence, the real issue was deliberate joint fabrication, not innocent contamination. The judge’s final direction sufficiently required the jury to consider whether the daughters had colluded or were otherwise unreliable, while preserving the prosecution burden of proof.

1. Court of Appeal (Criminal Division) — the appellant’s appeal against conviction was dismissed: [2013] EWCA Crim 1850.
2. Court of Appeal (Criminal Division) — on the prosecution’s earlier appeal, the court set aside a pre-trial stay ordered on grounds of delay and held that the application had been premature: [2010] EWCA Crim 630.
3. Crown Court at Northampton — following the earlier appeal, the appellant was convicted after trial of historic sexual offences against his daughters and sentenced to nine years and nine months’ imprisonment.