West v R

In a criminal trial, directions must make clear that the prosecution bears the burden of proof and that the jury may convict only if sure of guilt. A direction which frames the issue merely as choosing whether to believe the complainant or the defendant risks substituting a balance-of-probabilities exercise for the criminal standard.

Where historic allegations create a risk that delay has prejudiced the defence, the summing up must connect that prejudice to the prosecution’s obligation to prove guilt. The jury should not be invited to speculate whether lost evidence would have assisted one side or the other.

The appellant was convicted at the Crown Court at Bolton of ten specimen counts of indecent assault and four specimen counts of indecency with a child. The complainant alleged repeated sexual abuse by her stepfather from early childhood over almost ten years. There was no forensic or medical evidence. The appellant, a man of good character, denied the allegations.

He appealed against conviction. The central issue was whether defects in the summing up, particularly the directions on the burden and standard of proof and on the effect of delay in reporting historic allegations, rendered the convictions unsafe.

1. Appeal allowed. The court quashed all convictions because the summing up was defective and it could not say that the jury would necessarily have returned the same verdicts after proper directions.

2. The trial judge’s early references to deciding who was telling the truth could have conveyed that the jury needed simply to choose between the complainant and the appellant. In a criminal trial, the jury must instead be directed that it can convict only if sure that the defendant is guilty. That required it to be sure that the complainant was telling the truth. If it was not sure, it had to acquit. The eventual direction came too late and did not adequately correct the earlier impression, particularly as it again asked only whether the complainant was telling the truth.

3. In a historic sexual-abuse case, delay may impair memory and lead to the loss of potentially relevant evidence. Although some effects of delay can affect both sides, the summing up must make clear that any prejudice to the defendant bears on whether the prosecution has proved guilt to the criminal standard. The jury should not be invited to speculate whether unavailable evidence would have supported the prosecution or the defence.

4. The defects were reinforced by omissions in the treatment of the absence of threats to secure silence, the appellant’s good character and lack of later offending, and defence features including the absence of witnesses to repeated alleged abuse in a small house and the complainant’s continuing contact with him. In a case turning wholly on the complainant’s credibility and lacking independent support, those matters should have been brought together so that a conviction could be reached only with a full understanding of the factors capable of undermining the prosecution case.

• Court of Appeal (Criminal Division): Allowed the appeal against conviction and quashed all convictions: [2014] EWCA Crim 1392.
• Crown Court at Bolton: The appellant was convicted before HH Judge Davies of ten counts of indecent assault and four counts of indecency with a child, and received a total sentence of 12 years.