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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> CPS v F (Rev 2) [2011] EWCA Crim 1844 (21 July 2011)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2011/1844.html
Cite as: [2012] 2 WLR 1038, [2012] Crim LR 282, [2011] EWCA Crim 1844, [2012] 1 All ER 565, [2011] 2 Cr App R 28, [2012] QB 703

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Reporting restrictions apply to this judgment under s.71 Criminal Justice Act 2003, therefore this judgment has been edited to enable its publication before the conclusion of the trial of the defendant. The judgment clarifies a point of law and it is in the interests of justice that it is published at this stage. Amendments to the full judgment handed down have been made to paragraphs 1, 3, 6 and 42 to remove any factual material which may lead to the identification of the defendant or may possibly prejudice the trial.

The full judgment will be published once the trial of the defendant has been concluded.

Neutral Citation Number: [2011] EWCA Crim 1844
Case No: 2011/01966/C5

COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT GUILDFORD
HER HONOUR JUDGE MATTHEWS QC
T20097289

Royal Courts of Justice
Strand, London, WC2A 2LL
21/07/2011

B e f o r e :

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
LORD JUSTICE HUGHES
LORD JUSTICE GOLDRING
MR JUSTICE OUSELEY
and
MRS JUSTICE DOBBS

____________________

Between:
CPS

- v -

F

____________________

Mr John Price QC and Miss Toyin Salako for the Applicant
Miss A Knight for the Respondent
Hearing dates : 16th June 2011

____________________

HTML VERSION OF JUDGMENT (FOR PUBLICATION)
____________________

Crown Copyright ©

    The Lord Chief Justice of England and Wales:

  1. […..] The defendant was charged with two counts of buggery, contrary to section 12(1) of the Sexual Offences Act 1956 and three counts of indecent assault on a male person, contrary to section 25(1) of the Sexual Offences Act 1956. The counts all related to the same complainant […].
  2. At the outset of the trial the defendant gave notice of an application for a stay of the proceedings on the ground conventionally described as "abuse of process" although there was no suggestion of prosecutorial bad faith or incompetence. The application was based on the complainant's delayed report of sexual abuse. The judge declined to rule on the application at the start of the trial which then proceeded. During the course of his evidence the complainant explained why the complaint was delayed, and he was cross-examined in detail about it. At the conclusion of the prosecution case the judge considered the application and acceded to it. It was a terminating ruling. The jury was discharged. With leave of this court, the prosecution appeals against the ruling under section 58 of the Criminal Justice Act 2003.
  3. The application to the judge was advanced as an application for a stay and granted in those terms. However the argument in support of the application ranged widely over what were submitted to be the weaknesses in the evidence as it stood at the close of the Crown's case. […..]
  4. The judge approached her decision on the basis of five propositions identified in R v TBF [2011] EWCA Crim 726, the then most recent relevant decision of this court. In the context of abuse of process applications on the basis of delayed complaints of sexual abuse, paragraph 37(5), quoted in full by the judge, reads:
  5. "That a complainant's delay in coming forward was unjustified, is relevant to the question whether it is fair to try the defendant so long after the events in issue. In determining whether the complainant's delay is unjustified, it must be firmly borne in mind that victims of sexual abuse are often unwilling to reveal or talk about their experiences for some time and for good reason"
  6. This passage suggests that at the conclusion of the case for the prosecution, but sometimes at the end of the evidence as a whole, in cases like the present, the judge is required to make a judgment about the evidence of the complainant, the explanations given for any delay, and whether it is or can be justified, and to apply her conclusions on this issue to the decision whether there has been an abuse of process. However it may be dressed up, this is a fact-finding decision by the judge during the course of the trial in relation to the issue which on the face of it is pre-eminently for the jury's decision, that is, the credibility of the complainant. Juries perfectly well understand the need for caution in their approach to a long delayed complaint. They also recognise that from time to time an individual complainant may for perfectly understandable reasons have been shy or reluctant or frightened to make the complaint. All these fact specific considerations normally appear to be part of the jury's evaluation of the evidence.
  7. In her ex tempore ruling, amplified by invitation afterwards, the Judge made clear that she had considered all the features of the case relied upon by the defendant. [……] Her ruling proceeded on the basis that no specific prejudice, other than the fact of potential prejudice inherent in any prolonged delay, had been established, [..…..] describing the absence of justification for the delay in coming forward as 'the crux of the argument'. In essence her principal concern, and the basis for her decision was the absence of any "real satisfactory explanation" for the complainant's failure to take advantage of a number of opportunities to report what had happened to him. Having examined the complainant's evidence, the explanation, although clear enough, did not seem to be "matters that would indicate that there has been a good reason for delay in making a complaint in this case".
  8. The judge had begun her ruling by reciting that,
  9. "The defence ask that this matter be stayed for abuse of process and withdrawn from the jury."
    She concluded it by holding that:
    "I have come to the conclusion that a jury properly fully directed could not safely return a verdict of guilty on the evidence before them and that, therefore, the matter should be stopped at this stage."
  10. In dealing with the application in this way the judge was reflecting the way it had been advanced. It is, however, apparent, that the argument, and perhaps in consequence the ruling, represented an amalgam of two distinct questions:
  11. i) should the prosecution be stayed for 'abuse of process' on the grounds that the defendant could not receive a fair trial? and

    ii) should the case be withdrawn from the jury on the grounds that the evidence was such that a conviction would be unsafe?

    R v Galbraith [1981] 1WLR 1039

  12. Everyone in practice as an advocate in the Crown Court, and every judge, is familiar with the essential principles about the circumstances in which the judge is entitled to withdraw the case from the jury. Perhaps because the principles have been unquestioned for 30 years we take our knowledge of them for granted.
  13. In Galbraith the court was examining the then current uncertainty about how judges should approach a submission of "no case to answer". Lord Lane CJ identified conflicting approaches, observing that:
  14. "A balance has to be struck between on the one hand a usurpation by the judge of the jury's functions and on the other the danger of an unjust conviction. The practice had grown up of "inviting the judge at the close of the prosecution case to say that it would be unsafe…to convict on the prosecution evidence and on that ground to withdraw the case from the jury". This practice was based on the developing jurisdiction of the Court of Appeal Criminal Division to quash a conviction when, in the judgment of the court, the verdict should be set aside as "unsafe or unsatisfactory".

    This approach was rejected.

    "The fact that the Court of Appeal have power to quash a conviction on these grounds is a slender basis for giving the trial judge similar powers at the close of the prosecution case. There is however a more solid reason for doubting the wisdom of this test. If a judge is obliged to consider whether a conviction would be "unsafe" or "unsatisfactory", he can scarcely be blamed if he applied his views as to the weight given to the prosecution evidence and as to the truthfulness of their witnesses and so on."
  15. Lord Lane went on to reflect on the "danger inherent in the use of the word "unsafe": by its very nature it invites a judge to evaluate the weight and reliability of the evidence…and leads to the sort of confusion which now apparently exists". The court rejected the proposition that the judge could withdraw the case from the jury as "unsafe" because in his view the main prosecution witness "is not to be believed". The court endorsed the earlier decision in R v Barker [1975] 65 Cr App R 287:
  16. "It cannot be too clearly stated that the judge's obligation to stop the case is an obligation which is concerned primarily with those cases where the necessary minimum evidence to establish the facts of the crime has not been called. It is not the judge's job to weigh the evidence…to do that is to usurp the function of the jury."
  17. In essence the same principle was endorsed in R v Galbraith:
  18. "Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury"
  19. When the papers in the present appeal were examined it became apparent that to do full justice to the ruling, and indeed to the application, it would be necessary to analyse a very large number of authorities, decisions of this court, which have not always been consistent, and thereafter, if possible, to reconcile them. In any event a clear formulation of the relevant principles should make it unnecessary for trial judges, or this court, to trawl through a vast number of earlier decisions in an endeavour to discover them. Accordingly a five judge constitution was convened and within a very short time it became apparent that some of the jurisprudence about long delays in sexual complaints appeared to have become disconnected from Galbraith and to have elided the distinct concepts of abuse of process and withdrawal of the case from the jury on evidential grounds.
  20. Abuse of Process

  21. With Galbraith in mind, we have returned to first principles. It is nowadays regarded as elementary that a general inherent power to protect the citizen from prosecutorial abuse of its processes is vested in the court. After a huge increase in the number of applications for a stay on the grounds of delay, by 1992, just because it was no longer easy to reconcile the authorities on the issue, the problem was addressed in Attorney General's Reference (No 1 of 1990) [1992] 1QB 630. The points of law for the opinion of the court were:
  22. "1. …(i) whether the proceedings upon indictment may be stayed on the grounds of prejudice resulting from delay in the institution of those proceedings even though that delay has not been occasioned by any fault on the part of the prosecution;
    (ii) if the answer to (i) above is in the affirmative what is the degree of:
    (a) the likelihood and
    (b) the seriousness of any prejudice which is required to justify a stay of such proceedings."
  23. The allegations did not involve sexual crimes. The facts are irrelevant. Applying the observations of Sir Roger Ormerod in R v Derby Crown Court, ex parte Brooks (1985) 80 Crim App R 164 that "an abuse of process may arise either on manipulation or misuse of the process of the court by the prosecution (which does not arise here) or where the defendant has been, or will be prejudiced, in the preparation of conduct of his defence by a delay on the part of the prosecution which is unjustifiable", Lord Lane CJ stressed that:
  24. "The trial process itself is equipped to deal with the bulk of complaints which have in recent…cases founded application for a stay."

    After emphasising that stays on the grounds of delay "should only be employed in exceptional circumstances" Lord Lane continued that:

    "Even where the delay can be said to be unjustifiable, the imposition of a permanent stay should be the exception rather than the rule. Still more rare should be cases where a stay can properly imposed in the absence of any fault on the part of the complainant or prosecution. Delay due merely to the complexity of the case or contributed to by the actions of the defendant himself should never be the foundation of a stay…no stay should be imposed unless the defendant shows…that owing to the delay he will suffer serious prejudice to the extent that no fair trial can be held".
  25. These considerations underpinned the court's reluctant agreement with the affirmative answer to the first question referred to it for consideration. The agreement was based on the narrowest of grounds, the inability of the court "to anticipate in advance all the infinitely variable circumstances which may arise in the future". In short, it represented the practical application of the sensible rule that in the operation of the criminal justice system it is never wise to say "never". In reality the occasions when this situation will arise are likely to be almost vanishingly rare.
  26. As to the second question, the principle was clear:
  27. "No stay should be imposed unless the defendant shows on the balance of probabilities that owing to the delay he will suffer serious prejudice to the extent that no fair trial can be held. In other words, that the continuance of the prosecution amounts to a misuse of the process of the court. In assessing whether there is likely to be prejudice and if so whether it can properly be described as serious, the following matters should be borne in mind…the trial process itself, which should ensure that all relevant factual issues arising from delay will take place before the jury as part of the evidence for their consideration, together with the powers of the judge to give appropriate directions to the jury before they consider their verdict".
  28. Lord Lane expressed the hope that the judgment would significantly reduce the number of applications for proceedings to be stayed on the ground of delay. The exceptional nature of the jurisdiction was repeated and emphasised. It all proved to be something of a forlorn hope. In 2000, in a trial before the Crown Court, no less than 27 so called authorities (they were mainly fact specific decisions) were drawn to the attention of the trial judge in support of an application for a stay on the ground of delay : R v Mackreth [2009] EWCA Crim 1849. And so it has continued, the proliferation of decisions cited to the Crown Court, and then in this court, obscuring the principles and eliding the distinct questions whether the trial should be stopped as an abuse of process and whether the case should be withdrawn from the jury on Galbraith principles. Yet just as Galbraith unequivocally established that the question whether the verdict of the jury was "unsafe" was vested exclusively in this court after conviction, and that no corresponding jurisdiction to bring the trial to an end on some equivalent basis before conviction exists, so Attorney-General's Reference (No 1) of 1990 established the principles to be applied in the context of delay, whether in cases involving delayed complaints of sexual abuse, or delays arising for any other reason when the delays were alleged to constitute an abuse of process.
  29. The authorities

  30. The list of decisions of this court examined for the purposes of this judgment was R v Derby Crown Court, ex parte Brooks (1985) 80 Cr. App. R.164; Attorney General's Reference (No 1) of 1990 [1992] 1 QB 630; (1992) 95 Cr App R 296, R v JAK [1992] Crim LR 30, R v Dutton [1994] Crim LR 910, R v Jenkins [1998] Crim LR 411, R v Turner, 27th March 2000, R v MJT 27th July 2000, R v O'Dell 10 November 2000, Attorney General's Reference No 2 of 2001 [2001] EWCA Crim 1568, R v Bell [2003] 2 Cr App R 13, R v Brian SB [2003] EWCA Crim 319, R v Hooper [2003] EWCA Crim 2427, R v E(T) [2004] 2 Cr App R 36, R v Boyd [2004] RTR 7, R v Smolinski [2004] 2 Cr App R 40, R v Maybery [2003] EWCA Crim 782, R v Burke [2005] EWCA Crim 29, R v Hereworth [2006] EWCA Crim 75, R v Stephen Paul S [2006] EWCA Crim 756, R v Coghlan [2006] EWCA Crim 1542, R v Sheikh [2006] EWCA Crim 2625, R v Wilson and Robson [2006] EWCA Crim 2754, R v B [2008] EWCA Crim 114, R v Joynson [2008] EWCA Crim 3049, R v Edwards, R v King I [2008] EWCA Crim 3301, R v MacKreth [2009] EWCA Crim 1849, R v Miller [2010] EWCA Crim 1578, R v G [2010] EWCA Crim 2134, R v Lamont [2010] EWCA Crim 2144 and R v TBF [2011] EWCA Crim 726. We must deal specifically with a number of them.
  31. In R v Bell [2003] 2 Cr App R 13, the trial judge rejected an abuse of process application made to him at the start of the case. The appeal was allowed on the basis of the exercise of the 'residual discretion' vested in the Court of Appeal to set aside a conviction considered to be unsafe when the trial process itself could not be criticised. Although Lord Woolf CJ noted that the delay meant that the appellant had been put into "an impossible position" for the purposes of defending himself, the judge's decision was not criticised. In the "interests of justice" the conviction was set aside as "unsafe". Nevertheless it was perhaps this observation which spurred on some of the developing jurisprudence.
  32. In R v Hooper [2003] EWCA Crim 2427, this court was presided over by Rose LJ, the Vice President. The only relevant ground of appeal for present purposes was criticism of the trial judge's failure to accept a defence submission that the proceedings should be stayed as an abuse of process on the ground of delay. This ground of appeal was rejected. Commenting on the then recent decision in Bell, Rose LJ noted that the many authorities established that the length of delay was but one factor to be considered in the exercise of the trial's discretion whether to grant a stay or not, and that in Bell itself Lord Woolf had reflected that the jury would make appropriate allowance for delay. The court endorsed the principle that the decision in Attorney General's Reference No 1 of 1990 was "still the law", and indeed observed that this had been made plain by Lord Woolf CJ in his judgment in Attorney-General's Reference No 2 of 2001 [2001] EWCA Crim 1568.
  33. In R v Smolinski [2004] 2 Cr App R 40 the trial judge rejected an application for the proceedings to be stayed on the grounds of delay. This court, presided over by Lord Woolf CJ, upheld this decision. The application had been dealt with "in a perfectly appropriate manner". However the conviction was quashed because the jury's decisions were inconsistent. The Crown case had been that the defendant had indecently assaulted two girls for whom he was babysitting, and had done so simultaneously on the same occasion. He denied that anything of the kind had occurred. The jury convicted of the assault on the first but was unable to agree about the second: that demonstrated an unsafe conviction. It seems often to be supposed that in this case this court held that applications to stay on grounds of abuse ought to be determined at the close of the evidence. It did not, as we show later in this judgment (see paragraph 43). Rather, it discouraged such applications altogether. Secondly, it seems often to be supposed that this case involved providing some kind of gloss on the second principle identified in Galbraith when the judgment itself made no such suggestion.
  34. In the following month, this court considered R v E (T) [2004] 2 Cr App R 36. The hearing was concluded and the appeal dismissed before the decision in Smolinski became available, although by the time the reasons for the decision were given, Smolinski had been promulgated. The court's attention in argument was focussed on Bell and Hooper. As to Bell, the court discerned "a degree of tension" within the judgment itself, and questioned whether the judge would have been right to conclude at the close of the evidence that it would "not have been unsafe for the jury to convict the defendant" if it had become impossible for the defendant to defend himself; secondly it reminded itself that irrespective of any residual discretion, this court must quash the conviction if it concludes that it is unsafe. Turning to Hooper, this court endorsed the judge's approach but added that for as long as juries were vested with responsibility for deciding the verdict, "we must have confidence that they will make allowances for the difficulties faced by a defendant who can only say "I didn't do it" as well as delay". The appeal was dismissed. The judgment ended by noting the possible:
  35. "irony in a conviction being safe when there are, for example, inconsistencies in the complainant's evidence which provide material for cross-examination, but unsafe when the complainant's evidence is so consistent that it does not provide material for cross-examination. But if the rationale of B is the inability of a defendant to mount an effective challenge to the complainant's case, that is the logical consequence of it."
  36. In R v Stephen Paul S [2006] EWCA Crim 756 in this court Rose LJ, returned to these issues. In the context of a submission that the well known passages in the judgment in Attorney-General's Reference No 1 of 1990 were no longer authoritative, the court concluded that none of the decisions since Attorney-General's Reference No1 of 1990 represented any departure from the approach adopted in that case. In particular he referred to Attorney-General's Reference No 2 of 2001 [2001] EWCA Crim 1668, Hooper, Bell, and Smolinski. Trial judges faced with applications for stay on the ground of delay were asked to bear in mind the following principles:
  37. "(i) even where delay is unjustifiable, a permanent stay should be the exception rather than the rule;
    (ii) where there is no fault on the part of the complainant or the prosecution, it will be very rare for a stay to be granted;
    (iii) no stay should be granted in the absence of serious prejudice to the defence so that no fair trial can be held;
    (iv) when assessing possible serious prejudice, the judge should bear in mind his or her power to regulate the admissibility of the evidence and the trial process itself should ensure that all relevant factual issues arising from delay will be placed before the jury for their considerations in accordance with appropriate direction from the judge;
    (v) if, having considered all these factors, a judge's assessment is that a fair trial will be possible, a stay should not be granted."
  38. In the present context we attach particular importance to the reference in (iv) above that it is for the trial process to ensure that "all relevant factual issues will be placed before the jury for their consideration". This approach is entirely consistent with Attorney-General's Reference No 1 of 1990 and Galbraith, and maintains the clear distinction between the issues which each was addressing.
  39. Yet, a few months later, in R v Wilson and Robson [2006] EWCA Crim 2754, without reference to Stephen Paul S or Hooper or Galbraith, the court offered some general observations in the context of trials of sexual offences where the complaints were long delayed. Such cases plainly and naturally give rise to great concern. The judgment continued:
  40. "They require special consideration, not only as to whether they should be stayed on the grounds of a fair trial would be impossible, but also, if they are not stayed, whether any verdicts based upon so distant a recollection are unsafe. As this court has repeatedly emphasised, the dangers inherent in such cases require the judge carefully to scrutinise the evidence himself in order to see whether it is safe to leave the case to the jury (see in particular R v Smolinski…). This scrutiny requires the judge to consider not only the nature and quality of the evidence but also inconsistencies, either within the evidence of one witness or between a number of witnesses. It is not sufficient for a judge merely to remark that inconsistencies are a matter for the jury. So they may be in many cases. But in cases where the complaints are of events many years ago, it is the responsibility of the judge to consider whether the inconsistencies are such that no jury, even when properly directed as to the significance of such inconsistencies, could safely convict. "
  41. Indeed, although it was not necessary for the decision in the appeal, the court suggested that the judge had adopted an incorrect approach to the issue which might arise where there were discrepancies between the evidence of the witnesses. The trial judge ruled "that the jury will be able to consider what they make of those discrepancies and how it affects their view of those accounts". That ruling was said to be insufficient: "It is for the judge to assess the significance of the discrepancies and to rule whether their impact upon the quality of the evidence is such that no jury could safely convict on the counts to which they relate". It is in Wilson and Robson that the proposition that the judge should interfere and stop a trial, not only if a fair trial would be impossible, but also when guilty verdicts would be dependent on distant recollections, is most clearly enunciated.
  42. Expressed in this way, the judge is vested with a fact-finding responsibility which in "many cases" is the responsibility of the jury. This special exception to ordinary principle was said to be derived from the decision in Smolinski. However the judge in Wilson and Robson might reasonably have thought that his approach had been entirely consistent with the summary of the principles in Stephen Paul S, based on the Attorney-General's Reference No 1 of 1990, and consistent with Galbraith.
  43. In R v MacKreth [2009] EWCA Crim 1849 the court was considering an appeal against conviction returned in 2000. When the case came to appeal 9 years later the argument was not that the judge had erred in his application of the jurisprudence in 2000, but that the jurisprudence had undergone such a fundamental change that it should be recognised that the trial was unfair.
  44. In the argument before this court, the judge's ruling was examined in detail in the light of six decisions of the court, of which B (that is, Bell) was the only reported case. The others were Turner (27 March 2000), O'Dell (10 November 2000), Maybery [2003] EWCA Crim 782, Sheikh [2006] EWCA Crim 2625 and Joynson [2008] EWCA Crim 3049. As the court was to observe in the judgment, each of these cases represented a fact specific decision. On the basis of these decisions the court attempted a summary of principles of general application. Yet its attention was not drawn to Attorney General's Reference No 1 of 1990 or Hooper or Smolinski or Stephen Paul S nor Wilson and Robson, nor, by now perhaps inevitably, to Galbraith.
  45. On the basis of the six cases drawn to its attention, the court made the following observations:
  46. "(1) There is no sign that the relevant principles, those of Attorney General's Reference No 1 of 1990, have changed. On the contrary, in the most recent of those cases, Joynson, Lord Judge referred to the trial judge as having applied the "general principles in this area which are well known". And in Maybery Latham LJ said that the techniques (or "control mechanisms") which the law had developed to deal with the problems of historic allegations were familiar "over the years". (2) Principles have not changed, but the courts have for some considerable time, going back at least to 2000 as Turner and O'Dell demonstrate, been astute to pay real and not mere lip service to a concern to do justice in such cases. (3) These six cases have on the whole been sparing of citation of authority: they all emphasise how much they each turn on their own special facts. (4) The special feature in Turner was that one of the two complainants had been a complainant in the earlier prosecution (and, because of the linkage between the two complainants, the question mark over her evidence contaminated the evidence of the second complainant). Thus the complaints could not be examined without access to the papers of the earlier investigations and prosecution. (5) The same point, of complainants at trial having been complainants in the earlier proceedings whose papers had been lost, arose in O'Dell. (6) B turned on a "residual discretion", and a single complainant whose evidence in all the circumstances of that case was clearly regarded as not safely surmounting the dangers of huge delay and the prejudice of the all but total absence of any documentary material. (7) In Maybery the attempt to challenge the abuse ruling failed to get off the ground. (8) In Sheikh the critical factor was that the Crown's case could be boiled down to a narrow issue on which there was evidence (albeit only from the defendant) that he could not have been involved because he was on leave and where evidence from the (missing) contemporaneous documentation would have been decisive. (9) In Joynson the position was somewhat more complicated, but in essence the same: there were real conflicts of evidence on which the missing contemporaneous evidence would have been decisive. (10) In our judgment, these specific examples indicate the possible significance of missing documentation: but they do not justify Mr Barlow's broader submissions to the effect that mere speculation about what missing documentation might show necessitates the staying of such trials or the conclusion on appeal that convictions must be recognised as unsafe. (11) Mr Barlow's submission was that the high-water mark of the new jurisprudence was to be found in Sheikh and Joynson, but on investigation it appeared, and Mr Barlow accepted, that these cases turned on their particular facts and that there was no discussion of new principles or new jurisprudence in them."
  47. This year, in R v Hereworth [2011] EWCA Crim 74 the question was re-stated: whether as a result of prejudice caused to the defendant a fair trial was not possible. "Problems created by substantial delay may be alleviated by the judge's direction to the jury and by the way he puts the defendant's case to the jury (with clarity and fairness), and that delay may be due to the understandable reluctance of the alleged victim to recount an allegation. So long as a fair trial is possible it is in the public interest that cases should be tried". Reference was made to Attorney-General's Reference No 1 of 1990, and to Maybery, Sheikh, and the summary in MacKreth. No reference was made to Smolinski or Wilson and Robson. The appeal was dismissed on the basis that a fair trial was indeed possible and that "any suggestion that the absence of documents or witnesses due to the passage of time was a disadvantage to the defendant is mere speculation".
  48. As we have indicated, the judge's conclusion in the present case that the non-reporting of these complaints before 2008 was unjustified, and that the trial should therefore be stayed, derived from a passage in the judgment of this court in R v TBF [2011] EWCA Crim 726. In the course of a review of the principles to be gathered from the authorities, at paragraph 37, the court began with the proposition derived directly from Attorney-General's Reference No 1 of 1990 that a stay should be granted "if and only if it is satisfied…that by reason of delay a fair trial is not possible". After setting out some of the considerations relevant to those issues, the last sub-paragraph reads, and for convenience we shall repeat the citation:
  49. "(v) If the complainant's delay in coming forward is unjustified, that is relevant to the question whether it is fair to try the defendants so long after the events in issue. In determining whether the complainant's delay is unjustified it must be borne in mind that victims of sexual abuse are often unwilling to reveal or talk about their experiences for some time and for good reason".
  50. During the course of the argument we sought the assistance of counsel for the source in the decided cases for the first sentence of this proposition. The only case cited in TBF itself referring to "justification" was MacKreth, where the judgment of Rix LJ is referred to for, inter alia, the proposition that:
  51. "Fifthly, where a delay results from the reticence of an alleged victim in reporting an allegation of sexual abuse, one is entitled to adopt an understanding attitude towards the difficulties that can be encountered by such witnesses in making complaints."
  52. In fact, that proposition does not derive from the reasoning of this court in MacKreth but rather from a recital of the trial judge's ruling (see paragraph 30 of MacKreth) which was generally approved, although with some limited adjustment. But in any event, to say, as is undoubtedly true, that understanding should be afforded to the reluctance of witnesses to speak openly of such matters, advances a wholly different proposition from the suggestion that the presence or absence of justification for delay is a test of whether a stay should or should not be granted.
  53. Discussion

  54. The authority of Galbraith, with its emphasis on the responsibilities of the jury as the fact-finding body responsible for delivering the verdicts, is undiminished. The principles have neither been modified nor extended for the purposes of addressing trials which involve historic unreported sexual crimes. In accordance with the second limb of Galbraith there will continue to be cases where the state of the evidence called by the prosecution, and taken as a whole, is so unsatisfactory, contradictory, or so transparently unreliable, that no jury, properly directed, could convict. In cases like these it is the judge's duty to direct the jury that there is no case to answer and to return a 'not guilty' verdict. But in making this judgement, the judge must bear in mind the constitutional primacy of the jury, and not usurp its function.
  55. It is no doubt true that cases of long delayed allegations, whether in the field of sexual offences or otherwise, impose the requirement for special care if this question arises for consideration. Judges will find it easier to ensure that submissions of 'no case' concentrate on correct principles if expressions such as "safe to convict" or "safely left to the jury" are avoided. The test enunciated in Galbraith is clear. If the jury does convict, and the conviction may be unsafe, it must be dealt with in this court.
  56. When, by contrast with a submission of 'no case to answer', the court is considering an application to stay proceedings on the grounds of prejudice resulting from delay in the institution of proceedings, the appropriate test was directly addressed and answered in Attorney-General's Reference No 1 of 1990. It continues to provide the benchmark. In particular, although the contrary may sometimes be urged on trial judges, there is nothing in either Bell or Smolinski which alters the test. This court so decided in Stephen Paul S, where the principles were re-emphasised in the judgment of Rose LJ at paragraph 21, and again in MacKreth, per Rix LJ at paragraph 39. In both Bell and Smolinski the trial judges rejected applications for a stay on the grounds of delay and neither decision was criticised in this court. In Bell the court said at paragraph 15 that the judge had been entitled to reject the application for a stay. The decision was put squarely on the "residual discretion" of this court to quash a conviction which it regards as unsafe (at paragraphs 27 and 29). In Smolinski this court expressly held that the case had rightly been left to the jury, from which it necessarily follows that rejection of the application to stay the proceedings was not open to criticism. As we have seen, the decision to quash the conviction was founded on the unsatisfactory nature of the jury's verdict. Wilson and Robson was based on a misunderstanding of the effect of Bell and Smolinski, and without the benefit of the later summary of the principles in Stephen Paul S, where Bell and Smolinski were analysed in the light of the Attorney-General's Reference No 1 of 1990.
  57. Accordingly in our judgment any suggestion that, on the basis of delay, the judge may be responsible for assessing whether in advance of a conviction, the conviction would be unsafe, is based on a misunderstanding of the principles in both Galbraith and Attorney-General's Reference No 1 of 1990. The judge, of course, is responsible for the conduct of the trial. That responsibility extends to deciding whether the trial should be stayed because it would constitute an abuse of process, applying the principles relevant to that question, and the distinct, separate question, whether at the end of the prosecution case, the jury should be directed to return a "not guilty" verdict or verdicts on Galbraith principles. These are distinct features of the trial process and neither of these separate responsibilities of the judge should be elided with each other, or with the equally distinct responsibilities of the jury.
  58. In the overwhelming majority of historic sex allegations the reasons for the delayed complaint, and whether and how the delay is explained or justified, bear directly on the credibility of the complainant. They therefore form an essential part of the factual matrix on which the jury must make its decision. That is the principal, and in the over-whelming majority of cases, the only relevance of the evidence on these issues. When, in the authorities to which we have referred, it is clearly stated than an abuse of process argument cannot succeed unless prejudice has been caused to the defendant, the principles do not normally encompass the explanation for the delay, nor do they extend to the explanation or explanations which the judge himself or herself may regard as inadequate or unsatisfactory or inconsistent. Indeed features like these are revealed by and become apparent through the ordinary processes of trial, and these questions remain pre-eminently for the jury. Although therefore they may be relevant to submissions that there is no case to answer (carefully considered in the context of the limitations imposed by Galbraith) it is difficult to conceive of circumstances in which they have any relevance to an abuse of process argument, unless in some manner they impact on the question whether there can be a fair trial. The explanations for delay are relevant to an application to stay only if they bear on how readily the fact of prejudice may be shown. Unjustified delay in the making of the complaint, and even more so institutional prosecutor misconduct leading to delay (which is what the court was considering in AG Reference No 1 of 1990) may make the judge more certain of prejudice, which may even have been the aim of the delay. That is the import of the references in the cases to the reasons for the delay. That is, however, a long way from the proposition that unjustified delay is by itself a sufficient reason for a stay. It is not.
  59. Indeed on analysis, inquiry into the complaint where a sexual allegation is made, and the circumstances in which the complaint came to be made, is likely to be relevant to the credibility of the complainant, whether the allegations fall within the wide ambit of what are described as historic allegation, or allegations made at the time when the alleged offences occurred, or shortly afterwards. We cannot see any justification for the creation of a differential evidential test to be applied at the close of the prosecution case when the allegation is of long past sexual offending from that which applies at the end of the prosecution case in any other criminal allegation, and in particular, in relation to an allegation of recent sexual offending, whether reported immediately, or virtually so. There is no reason, and it would be virtually impossible, to identify the lapse of time which has the consequence that the proper examination of these questions should, in effect, be removed from the jury.
  60. Conclusion

  61. We can now return to the present appeal. In this case the judge appears to have been led into thinking that the crux of her decision was the presence or absence of justification for the delayed complaint. Accordingly she applied the wrong test. [.….] there was no prejudice to the fairness of a trial which could justify a stay and she was right not to identify any. All the other matters urged on her went to whether the offences alleged were proved or not. They may or may not have provided powerful arguments which undermined the Crown's case, and would have justified submissions to the jury that they could not be sure of the truthfulness of the complainant. But all these matters were capable of exploration at the trial and indeed had been explored. Their emergence was an illustration of the trial process working properly, in accordance with the principles laid down in Attorney-General's Reference (No 1) of 1990. While they underline the value of the trial process as a way of enabling the defendant to advance sensible arguments to undermine the jury's confidence in the credibility of the complainant, they do not provide any reason on abuse of process grounds for preventing the trial from taking place, or continuing to its normal end.
  62. When to rule on an application to stay

  63. Since Smolinski the practice appears to have developed that a ruling on an application to stay should be deferred until the evidence is complete. On close examination, this is not what the court suggested, at any rate in the context of an abuse of process rather than a Galbraith submission.
  64. "…having regard to the period of time which elapsed, the court expects that careful consideration has been given by the prosecution as to whether it is right to bring the prosecution at all. If having considered the evidence to be called and the witnesses having been interviewed on behalf of the prosecution, a decision is reached that the case should proceed, then in the normal way we would suggest that it is better not to make an application based on abuse of process. It will take up the court's time unnecessarily. Unless the case is exceptional, the application would be unsuccessful…it seems to us that on the whole it is preferable for the evidence to be called and for the judge then to make his decision as to whether the trial should proceed or whether the evidence is such that it would not be safe for a jury to convict".
  65. For the reasons we have given we take that last expression to be a reference to a Galbraith decision.
  66. Where there are genuine grounds for an application to stay on the basis that a fair trial will be impossible because of incurable prejudice to the defendant caused by delay, that application is, by its nature, preliminary to rather than part of the trial process. The contention is that the trial should not take place at all. If it is to be made, notice should be given before the trial begins. In the end of course the time when it should be dealt with by argument and ruling is a matter for the trial judge. Although we can envisage cases in which, for example, the application is based on prejudice resulting from the absence of long-lost evidence, such as institutional records, and where the evaluation of the significance of the absence of such evidence may best be undertaken at the close of the Crown's case, in general the question whether the trial should proceed at all should take place before evidence is called. If the ruling is deferred, there is, as this case demonstrates and as Lord Lane envisaged, a significant danger that the submissions to the judge would conflate Galbraith principles with the issue of abuse of process. If the application succeeds, it will almost inevitably appear that the judge has usurped the function of the jury. Moreover if the issue is not dealt with before the evidence is heard, the complainant, whose account may, notwithstanding the long delay, be a truthful one, will have been through the ordeal of giving evidence within and as part of a trial process which, afterwards, will then be held to have been an abuse of that very process. That is hardly fair. We do not propose to be prescriptive. However, unless there is a specific reason for deferment, an application to stay on abuse of process grounds is preliminary to the trial, and ought normally to be dealt with at the outset. But perhaps most important of all, as all the authorities underline, it is only in the exceptional cases where a fair trial is not possible that these applications are justified on the grounds of delay, even when the pre-condition to a successful application, serious prejudice, may have occurred, The best safeguard against unfairness to either side in such cases is the trial process itself, and an evaluation by the jury of the evidence.
  67. The appeal by the prosecution will be allowed. We shall invite counsel's submissions about the consequential order.
  68. Postscript

  69. When abuse of process submissions on the grounds of delay are advanced, provided the principles articulated in Galbraith and Attorney-General's Reference (No 1) of 1990 are clearly understood, it will no longer be necessary or appropriate for reference to be made to any of the decisions of this court except Stephen Paul S and the present decision. These four authorities contain all the necessary discussion about the applicable principles. Their application, whether in the Crown Court, or in this Court is fact specific, and is to be regarded, unless this court in any subsequent judgment expressly indicates the contrary, as a fact specific decision rather than an elaboration of or amendment to the governing principles. In this court, but not the Crown Court, the separate question of the safety of the conviction, if there is one, may also arise for decision. Again, however, the issues which may arise are illustrated by Bell and Smolinski. No further citation of authority is needed.
  70. We draw together the headlines to our principal conclusions. Reference must nevertheless be made to the full terms of our judgment.
  71. (i) An application to stay for abuse of process on grounds of delay and a submission of 'no case to answer' are two distinct matters. They must receive distinct and separate consideration. See paragraphs 39-40.
  72. (ii) An application to stay for abuse of process on the grounds of delay must be determined in accordance with Attorney-General's Reference (No 1) of 1990. It cannot succeed unless, exceptionally, a fair trial is no longer possible owing to prejudice to the defendant occasioned by the delay which cannot fairly be addressed in the normal trial process. The presence or absence of explanation or justification for the delay is relevant only insofar as it bears on that question. See paragraphs 38-40.

    (iii) An application to stop the case on the grounds that there is no case to answer must be determined in accordance with R v Galbraith. For the reasons there explained, it is dangerous to ask the question in terms of whether a conviction would be safe, or the jury can safely convict, because that invites the judge to evaluate the weight and reliability of the evidence, which is the task of the jury. The question is whether the evidence, viewed overall, is such that the jury could properly convict. See paragraphs 36-37.

    (iv) There is no different Galbraith test for offences which are alleged to have been committed some years ago, whether or not they are sexual offences. See paragraph 41.

    (v) An application to stay for abuse of process ought ordinarily to be heard and determined at the outset of the case, and before the evidence is heard, unless there is a specific reason to defer it because the question of prejudice and fair trial can better be determined at a later stage. See paragraphs 43-45.

    Reporting restrictions apply to this judgment under s.71 Criminal Justice Act 2003, therefore this judgment has been edited to enable its publication before the conclusion of the trial of the defendant. The judgment clarifies a point of law and it is in the interests of justice that it is published at this stage. Amendments to the full judgment handed down have been made to paragraphs 1, 3, 6 and 42 to remove any factual material which may lead to the identification of the defendant or may possibly prejudice the trial.

    The full judgment will be published once the trial of the defendant has been concluded.


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URL: http://www.bailii.org/ew/cases/EWCA/Crim/2011/1844.html