Hewitt, R.

A stay for abuse of process based on delay is exceptional. It requires the defendant to show serious prejudice such that a fair trial cannot be held. Missing records must be assessed by their likely relevance to a specific issue, rather than by speculation about what they might have contained.

Disclosure failures and lost material do not automatically make a trial unfair. The trial process, effective cross-examination and clear directions may remedy resulting prejudice. Where the date is not a material averment of an historic offence, uncertainty about timing ordinarily bears on the complainant’s credibility rather than creating an alibi.

The appellant was convicted at the Crown Court at King’s Lynn of one historic rape of JE, a former resident of a children’s home where he had been officer in charge. The jury acquitted him of a multiple-incident rape count concerning JE and another count, and did not reach verdicts on further counts.

He appealed against the conviction on the basis that the indictment should have been stayed for abuse of process. He relied on serious disclosure failures, missing local-authority records, delay and the alleged inadequacy of the judge’s directions about resulting prejudice. The central issue was whether those matters prevented a fair trial or rendered the conviction unsafe.

1. Appeal dismissed. Although the disclosure process contained serious and regrettable shortcomings, the appellant had not shown, on the balance of probabilities, serious prejudice such that a fair trial was impossible. The trial judge was entitled to refuse a stay for abuse of process.
2. The judge properly deferred the stay application until the end of the prosecution case. That enabled him to assess the actual effect of delay, unavailable material and late disclosure on the defence’s ability to test the evidence. The defence cross-examined JE robustly and effectively, including after her recall on the newly disclosed material.
3. The court applied the approach in R v RD [2013] EWCA Crim 1592. The missing records did not create a significant and demonstrable chance of decisive or strongly supportive evidence on a specific issue. JE’s dating of the initial incident by reference to Easter was uncertain. The appellant and JE were indisputably at the home together for at least six months, and the missing rotas could not have conclusively disproved the allegation.
4. The case differed materially from R v Burke [2005] EWCA Crim 29. It was not a single incident tied to a date which surviving records could have identified. The real issue on count 5 was whether the jury were sure that rape occurred, not whether it occurred on a particular date. The date was not a material averment.
5. The judge’s general directions adequately explained that delay, faded memories and missing material could place the appellant at a disadvantage, which the jury had to take into account when deciding whether the prosecution had proved guilt. A more tailored reference to timing could have been useful, but was not required. The evidence and available dates had been fully placed before the jury.
6. The disclosure failures did not require a stay to protect the integrity of the criminal justice system. They were explored before the jury, remedied as far as possible, and were not in bad faith. The conviction on count 5 was safe.

• Court of Appeal (Criminal Division): In [2020] EWCA Crim 1247, the court dismissed the appeal against conviction.
• Crown Court at King’s Lynn: On 30 May 2019, before His Honour Judge Shaw, the appellant was convicted of the single rape count concerning JE.