Delay & Alleged Historic Offending

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It is now commonplace for us to be asked to deal with cases where a person is accused of a crime, most commonly of a sexual nature, which is said to have occurred many decades earlier.

Not surprisingly, those accused will wonder how they can be expected to properly defend themselves after such a passage of time, given the difficulties in recounting events, people and places.

There is no statute of limitation for most of these offences and no statement of principle that a trial after a particular number of years is unfair.

But when considering whether or not it is an abuse of process to bring these prosecutions, delay is one factor to consider.

The case of R v F [2011] EWCA Crim 1844 presented something of a sea change in the attitude of the courts when considering delay.

In Joynson [2008] EWCA Crim 3049, the court, when overturning a conviction for an offence committed some 35 years before trial observed:

“The courts have sadly become familiar with sex abuse cases going back many years, but, as the trial judge recognised, the period of delay in this case was by any standards exceptional. Moreover, it was delay in the complainants giving evidence about events which were alleged to have occurred during their childhood (in one instance as young as 8). The surprising apparent powers of recall of witnesses 35 years and more after the event impressed the judge, but did not lessen the importance of the absence of contemporaneous evidence by which to test the degree to which such apparent recall was true and reliable recall.

Having identified in summary the nature of the significant prejudice in this case, we must consider whether the case was so strong and/or whether there were sufficient safeguards that the convictions may nevertheless be regarded as safe, despite such prejudice. This is a fact-specific exercise and it calls for close scrutiny.

This court is always slow to allow an appeal against a conviction where the case has been handled with care by an experienced judge and the jury has reached its conclusions of fact after hearing all the witnesses. Nevertheless, we must stand back from the case and ask ourselves whether we regard the convictions as safe. The case as presented to us may be a little different from the way it was presented to the judge when he read the skeleton arguments which were before him, but we are troubled by the very great delay and its particular consequences in the context of the specific allegations in this case. We have reached the conclusion that we cannot regard these convictions as safe.”

In a later case, R. v RD [2013] EWCA Crim 1592 the Court of Appeal upheld convictions even though the delay between the crimes and trial was some 63 years.

The court held:

“The delay in this case is exceptionally long, between 39 and 63 years. The length of the period of itself proves nothing beyond that historical fact. What is of crucial importance is the effect of such delay on the fairness of the trial and the safety of any resultant convictions. In this case the appellant’s submissions have not proceeded by reference to generalities based on the substantial lapse of time.

Although this matter required careful scrutiny because of the very substantial delay in this case, we are entirely satisfied that the judge was correct in her assessment that the trial process could properly cope with the difficulties faced by this appellant and that there would be and indeed was no prejudice to him of a type which would mean that he could not and did not get a fair trial. On an analysis of the missing material and on an analysis of the evidence given at the trial and the issues before the jury, we are satisfied that this appellant received a fair trial, and was not disadvantaged in a way that could properly be described as amounting to serious prejudice to his ability to mount a proper defence to the allegations brought against him. Accordingly, our conclusion is that the convictions are safe and that the appeal against conviction must be dismissed.”

It is clear, therefore, that there is no simple answer to the issue of delay.

In all cases, we scrutinise the facts with extreme care to ensure any abuse of process application can be appropriately advanced before the court and given the strongest chance of success.

How can we help?

We ensure we keep up to date with any changes in legislation and case law so that we are always best placed to advise you properly. If you would like to discuss any aspect of your case, please contact any member of our vastly experienced Criminal Defence team, for assistance with any criminal law related matter.

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Mr John Stokes (John.Stokes@danielwoodman.co.uk),
Miss Sarah Turland (Sarah.Turland@danielwoodman.co.uk),
Mr Anthony Pearce (Anthony.Pearce@danielwoodman.co.uk) or
Mr Daniel Woodman (Daniel.Woodman@danielwoodman.co.uk).