PS, R. v

In a prosecution brought after substantial delay, the jury direction must be tailored to the real issues at trial. It should identify any material disadvantage to the defendant caused by fading memories, unavailable evidence or lost lines of inquiry, and require that prejudice to be borne in mind when applying the burden and standard of proof.

No prescribed form of words is required. A self-contained direction focused on the defendant will often be preferable, since combining it with reasons for a complainant’s delay may dilute its protective force. A judge need not leave a theoretical defence which was not pursued and does not reflect the parties’ conduct of the trial. An appellate court must assess the direction as a whole and the safety of the conviction.

The appellant was convicted at Isleworth Crown Court of four counts of indecent assault contrary to the Sexual Offences Act 1956. The allegations concerned assaults on V, aged about nine, at a Buddhist temple in 1978. He was acquitted of rape and of counts concerning a second complainant.

Thirty-four years elapsed before V reported the allegations to the police. The defence at trial focused on whether V had correctly identified the appellant, rather than on whether the assaults had occurred. The appellant challenged both the adequacy of the jury’s direction on delay and his seven-year sentence, including protective orders.

1. The court dismissed the appeal against conviction. The judge was entitled to treat identity as the decisive issue on counts 1 to 3. The parties had not advanced a defence that V had invented the assaults, and the judge was not required to construct or leave a purely theoretical defence. This reflected the duty under Criminal Procedure Rules, Part 3.2, to identify the real issues at an early stage.

2. In a case of this age, an appropriate direction should explain that delay can materially disadvantage a defendant, particularly where the allegation is simply denied. It should identify the increasing difficulty caused by fading memories and unavailable evidence, direct the jury to bear resulting prejudice in mind when deciding whether guilt is proved, and summarise the particular prejudice raised at trial.

3. The direction would preferably have been short and self-contained. Interweaving the defendant’s prejudice with reasons for a complainant’s delay risks diluting the direction. Nonetheless, read as a whole, the summing up identified the essential matters, including lost evidence, unavailable witnesses, memory and the ultimate burden and standard of proof. It was not a misdirection. The evidence identifying the appellant was compelling, and the jury’s acquittals on other allegations demonstrated a careful assessment of the evidence. The convictions were safe.

4. The court rejected the complaint that the likely release date should affect sentence structure. It upheld the sexual offences prevention order as necessary and proportionate despite the lapse of time, given the seriousness of the abuse of trust and the continuing risk to children. It also upheld the order under section 28 of the Criminal Justice and Court Services Act 2000.

5. The court allowed the sentence appeal to a limited extent. Consecutive sentences were justified, but a total of seven years was excessive in light of the age of the offending, the absence of later offending, the appellant’s age and his positive community role. The consecutive sentence on count 5 was reduced from four to three years, producing a total sentence of six years’ imprisonment.

• Court of Appeal (Criminal Division). The appeal against conviction was dismissed. The sentence appeal was allowed to the limited extent of reducing the total sentence from seven to six years: [2013] EWCA Crim 992.
• Isleworth Crown Court. The appellant was convicted by a majority of four counts of indecent assault and sentenced to seven years’ imprisonment. He was acquitted of rape and of counts concerning a second complainant.