SR, R. v

An indictment should be stayed for abuse of process only where delay, missing material or investigative shortcomings cause serious prejudice such that a fair trial cannot be held. A trial judge may address real disadvantage through evidential rulings, appropriate jury directions and a careful summing up.

A conviction is not unsafe merely because material has been lost or a direction could have been fuller. The appellate court must assess the whole trial, including what evidence the jury heard, the directions given, the parties’ trial positions and whether the alleged prejudice is speculative or concerns inadmissible material.

The appellant was convicted at Bristol Crown Court of sexual offences against his half-sister, committed in Brighton and Bristol. He appealed against conviction.

The original Brighton investigation had ended without action. By the trial, the investigating officer would not assist, parts of the police material were missing or unreliable, and recordings of a police interview and possibly an earlier ABE interview were unavailable. The trial judge refused applications to stay the indictment and directed the jury on delay and missing material.

The appeal raised whether those deficiencies made a fair trial impossible or rendered the convictions unsafe.

1. Appeal dismissed. The trial judge correctly refused to stay the indictment. Applying the test stated in R v S [2006] 2 Cr App R 23, the appellant had to establish serious prejudice such that no fair trial could be held. Although the investigation had serious shortcomings, the judge could regulate admissibility and ensure that the jury considered delay, missing material and police conduct under suitable directions.

2. The absence of the former investigating officer created difficulties for both parties. The evidence ultimately admitted included the former officer’s and the social worker’s doubts about the complainant’s credibility, although their reasons were unknown. The directions should have expressly referred to the social worker’s absence. That omission did not undermine the convictions: her independent view had been admitted and repeated in the factual summing up, and the jury had seen and heard the complainant.

3. The complaint about a missing earlier ABE interview failed. At trial the defence position had been that no such interview occurred. The jury heard the competing evidence on that issue and were directed on the consequences if an interview had occurred but was unavailable. The appellant could not fairly establish an unsafe conviction by advancing, on appeal, a position inconsistent with the case presented at trial.

4. The loss of the appellant’s 2010 interview caused some prejudice, but the admissions recorded his consistent denial and the former officer’s view that his account was plausible. The jury knew that the recording was missing and had been adequately directed on the resulting disadvantage.

5. The suggested contents of the complainant’s phone were speculative. Evidence of sexual contacts or activity with other males would have contravened section 41 of the Youth Justice and Criminal Evidence Act 1999 and would not have been admissible. Considering the totality of the evidence, rulings, directions and summing up, the court could not conclude that the convictions were unsafe.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction in [2019] EWCA Crim 887.

• Bristol Crown Court: convicted the appellant of counts 2 and 4 to 10 on 5 February 2018, after refusing applications to stay the indictment for abuse of process.