Pipe, R. v

A criminal trial may fairly continue where a vulnerable complainant cannot complete cross-examination because of acute distress. The decisive question is whether the defendant can nevertheless receive a fair trial. Relevant matters include whether the essential defence and challenges to credibility have been put, whether unfinished issues can fairly be placed before the jury by other means, and whether there is other material evidence capable of testing the allegation.

Where a sentencing guideline range starts from a single offence, repeated offending may properly justify a sentence towards the top of that range. The court must avoid double counting, but repeated sexual abuse over an extended period is a distinct and important aggravating feature.

The appellant was convicted at the Crown Court at Bradford of three specimen counts of sexual activity with a 15-year-old complainant and was sentenced to nine years’ imprisonment.

During cross-examination by live link, the complainant became extremely distressed and was medically unable to continue. The trial judge discharged her from further evidence but ruled that the trial could continue fairly. The appellant contended that the incomplete cross-examination rendered his conviction unsafe. He also submitted that the sentence was manifestly excessive.

The central issues were whether continuation of the trial was fair despite the curtailed cross-examination, and whether the sentence properly reflected repeated offending within the applicable sentencing category.

1. Both appeals were dismissed. The trial judge was entitled to conclude that the complainant could not continue her cross-examination and that a retrial was unrealistic.

2. The governing issue was whether the appellant could still have a fair trial. His central case, that the allegations were fabricated, had been fully put to the complainant. Her mental health and its possible effect on her reliability had also been explored. The only unfinished area concerned possible inconsistencies in medical records.

3. The judge fairly addressed that remaining issue by reducing the relevant records to agreed facts and placing them before the jury. The cessation of cross-examination did not prevent the appellant from relying on any inconsistency. It also meant that the complainant lost any opportunity to explain it. There was further evidence capable of bearing on the allegations, including evidence of admissions, text messages and the appellant’s own account of the relationship. The trial could therefore continue without unfairness.

4. The court applied the approach illustrated by R v Stretton and McCallion (1988) 86 Cr App R 7 and R v PM [2008] EWCA Crim 2787: inability to complete cross-examination does not automatically bar continuation, and the trial judge’s assessment of fairness should not be displaced unless outside the range of reasonable conclusions.

5. On sentence, the offences properly fell within category 1A. Planning, grooming, alcohol, abuse of trust, threats and the extended, repeated nature of the abuse justified a term near the top of the guideline range. The guideline started from a single offence, whereas the specimen counts represented numerous offences. The nine-year total was neither wrong in principle nor manifestly excessive.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction and the appeal against sentence: [2014] EWCA Crim 2570.
• Crown Court at Bradford: on 23 May 2014, convicted the appellant of three specimen counts of sexual activity with a child and imposed a total sentence of nine years’ imprisonment.