R v B (Brian S)
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 11 February 2003 |
| Neutral Citation | [2003] EWCA Crim 319 |
| Docket Number | No. 2002/00540/Y4 |
| Court | Court of Appeal (Criminal Division) |
| Date | 11 February 2003 |
[2003] EWCA Crim 319
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand London WC2A 2LL
The Lord Chief Justice Of England And Wales
(the Lord Woolf Of Barnes)
Mr Justice Jackson And
Mr Justice Elias
No. 2002/00540/Y4
MR J JENKINS appeared on behalf of THE APPELLANT
MR R A JONES appeared on behalf of THE CROWN
Tuesday 11 February 2003
This appeal raises a worrying point of general interest, difficulty and sensitivity in relation to complaints arising out of sexual offences alleged to have been committed many years prior to the trial. The problem arises because in criminal law, unlike civil law, there is no statute of limitation. Furthermore, in relation to sexual offences Parliament has removed the common law protection which was provided by the requirement of corroboration in the case of allegations of sexual offences.
The facts of this case are, however, far from unique. The appellant, who is now 60 years of age, was convicted in the Crown Court at Merthyr Tydfil, before His Honour Judge Gareth Davies and a jury, of ten counts of indecent assault on the same complainant who was under 16 years of age and was his stepdaughter. On counts 1–3 he was sentenced to 12 months' imprisonment on each count; on counts 4–6 he was sentenced to 15 months' imprisonment concurrent on each count, but consecutive to counts 1–3; and on counts 7–10 he was sentenced to 21 months' imprisonment on each, but consecutive to the earlier counts. This made a total sentence of four years' imprisonment. The appellant now appeals against conviction by leave of the single judge.
The counts in the indictment alleged indecent assault between 7 September 1969 and 9 September 1972. At that time the complainant was between the ages of 7 and 11. She alleged that the assaults took place about three or four times a month on a regular basis throughout the period. They involved the appellant making her climb into bed with him undressed, forcing her to masturbate him, the appellant climbing on to her, putting his penis on her vagina and simulating intercourse until ejaculation. Occasionally he would put his finger onto or into her vagina and masturbate her.
The appellant's defence throughout was a complete denial that any of the alleged acts had taken place. The only explanation that he could give for the invention was that the complainant blamed him for the death of her mother, his former wife.
The stepdaughter attended psychiatrists between 1983 and 1989 for depression resulting from her fears of losing her job and of losing her boyfriend. Mention of abuse arose in those consultations. Because of the passage of time, limited evidence was available as to what had happened during the period that the complainant received treatment from the psychiatrists. There was reference to her taking overdoses and that she was emotionally disturbed. In addition, dates were given by her for a complaint of abuse which, while wider than the allegations made in the proceedings, covered the period which was the subject of her complaint. A note which was preserved read:
"Abused by step-father from age of 5 to 12, mostly touching."
There was also a suggestion by the complainant that on one occasion she and the appellant were disturbed by her brother. In addition she said that the window cleaner had made a remark to which she attached significance to the effect, "I know what is going on. I know what you do."
The window cleaner gave evidence for the prosecution that he remembered an occasion when the complainant came out of the lounge very quickly. He thought that she was going to fall, so he grabbed her by the arm and asked her if she was all right. She replied that she was and went to do something in the kitchen. She was 11 or 12 at the time. She was wearing a nightgown or T-shirt. The appellant was in the lounge wearing a towelling robe. The window cleaner denied that there were any sexual undertones to what had occurred. He did not think that he had said anything like, "I know what you do", in a way which conferred significance.
An application was made prior to the commencement of the trial that the proceedings should be stayed as amounting to an abuse of process. The submission was based on the delay that occurred since the incidents which had taken place almost 30 years before a complaint was made to the police in August 2001. Apparently, in addition, some informal complaints were made. We do not know their detail and we understand that they were ruled inadmissible by the judge.
On the application for the stay the judge gave a short ruling. The length of the ruling is criticised, but we do not accept that it can properly be criticised. It was possible for the judge to set out his reasons succinctly for reaching his conclusions. His ruling is none the worse for the fact that he expressed himself concisely.
The judge recognised that the delay inevitably led to difficulties for the defence. It led to difficulties in obtaining possible witnesses. The complainant's mother was now deceased. She might have been able to give useful evidence in one direction or another. The public house in which she worked no longer existed.
The appellant worked for days on end during the week away from home and outside Wales. If records had been available, they could have confirmed that he was not present at a particular time. If the complainant had been able to identify the dates on which she said an incident occurred, it might have been possible for the appellant to point to a particular date and say: "At least in relation to that date the complainant cannot be right. Look at my work records. I was not there".
The judge asked himself what he regarded as being the standard question on an application for a stay for abuse of process, namely whether the defendant had satisfied him on the balance of probabilities that a fair trial would be impossible. He came to the conclusion that the defendant had not so satisfied him, although he recognised that a delay inevitably resulted in difficulty, in particular in relation to obtaining witnesses. The judge pointed out that he had to consider the extent to which possible unfairnesses to the defendant could be dealt with during the trial process by him, for example, ruling evidence inadmissible.
On the appeal Mr Jenkins did not challenge the test which the judge applied. Indeed, on behalf of the appellant he accepted that it was the appropriate test. He referred to three authorities, however, which he considered this court should take into account. The first is Attorney General's Reference No 1 of 1990 (1992) 95 Cr App R 296. That is probably the most important authority, although it is possible to deal with that case in conjunction with the next which is R v Dutton [1994] Crim LR 910. Finally, he referred to R v Jenkins [1998] Crim LR 411. Dutton was a decision of this court presided over by Kennedy LJ. It involved indecency on a male. An indictment was stayed in relation to Dutton's co-accused. Dutton's counsel also applied for a stay. The Crown's case was that over a period of three or four years, when the complainant was aged 10 or 11, Dutton had sexually abused him. Dutton maintained that nothing sexual had occurred; they simply had a friendship based on mutual interests. It was common ground that he was a practising homosexual and he found boys attractive, but he contended that it was only older boys, and that he was not at any time attracted by boys of the complainant's age. He had been friends with the stepfather, and it was alleged that he had taken the complainant to various places where indecent acts occurred, including a caravan and to his hone where he lived with his mother and sister. Counsel submitted in that case that the delay was inexcusable. It was pointed out that the complainant had not merely waited until he became an adult, but had waited a long time after that. He made no complaint until he was aged 29. No real explanation was forthcoming and it was approximately 20 years from the time the first act was alleged to have taken place and, more importantly, fourteen years since the last act of indecency that the complaint was made. It was said that during that period a great deal had happened which caused the defence considerable difficulties if the trial proceeded. In particular, a number of witnesses had died, the caravan site owners were both dead, as were Dutton's mother and aunt. At the material time, he was working at the university and there was a caretaker who might have been of assistance to him in relation to what was alleged to have taken place there. He was no longer available and neither was the complainant's stepfather. The caravan had been significantly altered so that it was impossible for the defence effectively to investigate how it had appeared at the time when it was being misused. There was no apparent corroboration of the allegations. The defence was bound to be prejudiced by the fact that when eventually the complainant said something and went with his sister to the home of a police officer, the notes which were made in the course of a five-hour conversation had been lost. The complainant had not been medically examined when the incidents were fresh. There was no supporting medical evidence, and no scientific evidence of any kind. The judge rejected the submission, simply saying, "I am against you….", and indicated that he was in favour of the submission made...
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