R v F

Hearing dates: 16 th June 2011

On 28 ^th March 2011 the trial of F began in the Crown Court at Guildford before Her Honour Judge Matthews QC and a jury. 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, the respondent's step-brother. The abuse was alleged to have occurred on three occasions in 1992 and 1993 when the complainant was one side or the other of his sixth birthday, and the respondent was sixteen years old. It was common ground that at the time the older and younger boys shared sleeping accommodation in a caravan in the garden of the family home. No complaint was made until autumn 2008.

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.

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. These included:

i) that the case depended entirely on the unsupported word of the complainant who, moreover, had been only six at the time and had had several disturbances to his family life;

ii) that it concerned events which if they occurred had happened some sixteen years before any report of them was made and the defendant had any opportunity to deal with it;

iii) that there was no satisfactory explanation for the failure to report the matter, not at the age of six, but when the complainant realised that what had happened was seriously wrong, as he clearly had at least by his mid-teens; that he had opportunities to report it, including when receiving counselling (for anger management) at the age of fourteen or thereabouts, but had not done so;

iv) that his initial disclosures to his wife in 2008 were made at a time when he had collapsed apparently suffering from stress and were partial and limited;

v) that there was a possibility that what he now said was in part the result of suggestions made by the complainant's mother when, on the following day, he spoke to her;

vi) that his complaint was recorded by way of witness statement rather than by way of ABE interview, so that it was not possible to know what questions had been asked of him; moreover the statement contained little detail and more emerged in oral evidence;

vii) that the explanations offered by the complainant in evidence both as to when he had realised that what had happened was wrong, and as to why he had not reported it, were inconsistent and unsatisfactory;

viii) that the notes of the counsellor had long been destroyed;

ix) that if the allegations had been made contemporaneously the defendant could not have been convicted because as the law then stood the absence of corroboration would have been fatal; and

x) that it was unfair that he should face trial as an adult rather than as the youth which he had been when the offences were said to have been committed.

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:

"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"

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.

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. She rejected points (viii), (ix) and (x), rightly holding that the content of the counsellor's notes was pure speculation since no one suggested that the complainant had told him anything about these allegations, and that neither a change in the law of evidence nor the present age of the defendant could give rise to a reason for a stay. 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. It follows that in arriving at her conclusion she relied, to a greater or lesser extent, on the remaining matters. She referred explicitly to points (iii) and (vii), 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".

The judge had begun her ruling by reciting that,

"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."

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:

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

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.

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:

"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...