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13 Nov 2013

Court of Appeal judgment on delayed sex case

This judgment of the Court of Appeal is the latest of a long string of appeals concerned with historic sex cases where the appellant invites the Court to hold that owing to the extreme delay between the alleged offence and the trial, he (and it invariably is a he) was not tried fairly.

In this case the delay was between 39 and 63 years. The first counts on the indictment spanned the years 1949-1956. The most recent alleged offence occurred in 1973. The first time the appellant was confronted about his alleged offending was in 2008 and since then he had always denied any improper conduct.

Prior to the trial the appellant sought to stay his trial on the ground of abuse of process due to delay. Arguments familiar to this type of submission were ventilated; his arguments were concentrated on the prejudice caused owing to the absence (mainly through death from old age) of potential material witnesses and as a result of the loss of documents (school, medical and employment records) which could undermine the allegations. So in framing his submission the appellant was careful to guard against making a generalised claim of prejudice based on the fact of lapse of time and he sought to demonstrate how the missing evidence was likely to have significantly assisted his defence.

The trial judge who took six weeks to deliberate upon this application, ultimately ruled that the problems caused by the passage of time did not inhibit a proper defence or create a substantial risk of an unfair trial. The trial ensued ending in the appellant’s conviction on all 16 counts and aged 78 he was sentenced to eleven years imprisonment.

The Court considered that the trial judge’s assessment had been vindicated. Firstly it noted the evident care which this judge had given to his ruling; secondly that no error of law in it could be identified and thirdly that the summing up was fair in that all the issues concerning delay were adequately explained to the jury.

When the Court approaches its task of deciding whether a conviction is unsafe by making these findings, it is normally but a short and easy step for the appeal to be dismissed. In other words, the Court decides to adopt a narrow procedural-based approach and eschews looking at the case in the round to determine whether the trial was fair despite the loss of every conceivable potentially exculpatory witness and document because the complainant(s) hesitated so long in making their allegations. Whilst the Court did in this judgment analyse the evidence in some detail, its underlying conception was that the trial was one family member’s word against another and thus even if this evidence had been available it would have made little difference. The length of the delay, short or long, thus becomes immaterial. When a case is seen in this vein the loss of evidence and massive delay does of course pale into insignificance.

RD must of course be treated as manifesting the Court’s approach. On the strength of it, what next time can an appellant convicted in similar circumstances submit which will stand any chance of success?

The ramification of RD is that the vaguer the allegation as to the circumstances of the offence the more difficult it is to persuade a court to stay it. So in the original indictment against RD there were two counts of rape allegedly committed against his daughter during the early 1960’s. The daughter said the venue was a house she then inhabited with RD. Fortunately for RD the Crown withdrew both counts when it transpired that the surviving electoral roll showed that RD had not lived at the address until the mid-1960’s. Had the daughter recalled being attacked a little later in time or been unsure as to when this happened during that era, these counts would have remained with the others. Other than in respect of this issue RD was unable to positively attack the Crown’s case.

So it seems that only abuse submission with a good chance of gaining traction with the Court is one where the specificity of the allegation allows for the mounting of either a quasi-alibi defence or one where the absence of a witness or document can demonstrably be shown to have caused prejudice. Bearing in mind that the vast majority of historic sex cases are alleged instances of inter-family abuse, neither of these possibilities are likely to arise. So where the defence can only be one of denial RD holds that justice delayed will never amount to justice denied.

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