R v R.d.
| Jurisdiction | England & Wales |
| Judge | Lord Justice Treacy |
| Judgment Date | 10 September 2013 |
| Neutral Citation | [2013] EWCA Crim 1592 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No: 2012/6532/B1 |
| Date | 10 September 2013 |
[2013] EWCA Crim 1592
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Treacy
Mr Justice Hickinbottom
Mr Justice Nicol
No: 2012/6532/B1
Mr M Kimsey appeared on behalf of the Appellant
Miss A Llewellyn-Waters appeared on behalf of the Crown
On 24th October 2012 in the Crown Court at Kingston upon Thames, this appellant was convicted of a number of sexual offences relating to historical allegations made by four complainants. Three of the complainants were his nieces, one complainant was his biological daughter who had been adopted by another member of his family. Looked at comprehensively the allegations covered the period between 1949 at the outset and 1973 at the conclusion of the events described by the different complainants. That means that there has been a period of delay in bringing these matters to trial, ranging between 39 and 63 years. That sort of level of delay is extreme even by the standards of courts in this jurisdiction which are used to trying allegations of historic sexual abuse.
It is necessary to give a brief history of the allegations so that the matters to be considered by this court fall into context. The first complainant was J. Her allegations, counts 1 and 3, spanned the years from 1949 to 1956, covering a period when she was aged 8 or 9 to a time when she was aged about 14. At that stage the appellant was aged between 15 and 22. The counts were specimen counts, with count 1 being the more serious, an allegation of attempted rape. The offences were alleged to have occurred during school holidays at J's maternal grandparents' home in South Wales, which was also the home address of the appellant.
During that period the appellant worked in a local colliery after leaving school. There are no shift records showing his working pattern. In late 1953 he joined the army and performed military service until January 1957. Part of his service was performed as part of the British Army on the Rhine. The remainder of his service was performed within the United Kingdom. The appellant was a bandsman, performing in a military band, and at times he went on tour with that military band. However, during his period of military service he had leave and the evidence showed that he would return to his parents' home. Complaint is made of the sparsity of military records for the time of his service and also in relation to the absence of witness evidence from military colleagues who might have provided assistance as to the nature of his military service and in particular at what times he was available to go on leave and thus visit the place where the offences were alleged to have been committed.
The second complainant was G. She alleged that the abuse of her took place between 1953 and 1957 when she would have been aged between 10 and 14. She was close to the first complainant J. They lived in the same part of England and attended the same school. She too would spend school holidays, particularly summer holidays, in the home of the applicant's parents. She made complaint of matters of sexual abuse over a period of time, again reflected in specimen counts, counts 4 to 10 on the indictment.
In the case of these two complainants, their own parents are no longer in a position to give evidence. A surviving aunt is unwilling to support either side's case but says that she was unaware of anything untoward ever occurring. The complainants' grandparents are dead and complaint is made that the absence of those and other relatives means that the issues surrounding what took place in the grandparents' home, including the timing of visits by the complainants, the timing of leave visits by the appellant when he was serving in the army and the layout of the premises themselves, are matters of which he has been deprived of useful evidence. Moreover, school records relating to those girls are not available, nor are medical records in relation to them.
The third complainant was S, the biological daughter of the appellant. Her complaints related to a period between 1965 and 1971 by which time the appellant had married and was living in his own home with his present wife. The allegations relating to S are the most serious in this case involving repeated rapes which had been preceded by indecency. Again, specimen counts were preferred in Counts 11 to 15. The process of searching for documents as the trial was being prepared enabled an electoral roll to be found which cut down the period during which the Crown alleged that rapes had been perpetrated upon this complainant at a particular address at which she had been in the habit of going to stay with the appellant and his wife. Thus it was that he was acquitted on two of the counts, counts 12 and 13, of specimen rapes because the information from the electoral roll demonstrated that he would not have been resident at the property in question during the dates covering those two counts. The applicant's mother was said to have been present on the occasion of the visits by S when she had been abused. She unfortunately has died and evidence which she might have provided is therefore unavailable to the appellant.
The final complainant was a niece, Y, whose complaints were confined to a single incident occurring in late 1973 (Count 16), shortly before the appellant emigrated to Australia. At the time she was 12 years of age. She claimed that on the occasion of the appellant's mother's funeral he had fondled her breast in the street. That episode was, as we say, a single incident in contradistinction to the allegations made by the other complainants. It has not been possible for the appellant to trace others who attended the funeral to see if they had any useful evidence to give.
In addition to the military records which are criticised as inadequate, the appellant on completing his military service in 1957 resumed employment at the local colliery. Again there is an absence of any record showing his shift and holiday patterns.
The appellant was first confronted with any allegation in 2008 when G and Y confronted him in Australia. He was subsequently extradited to this country to stand trial. His defence was one of fabrication, an allegation of collusion by the complainants and a denial of any improper conduct by him towards any girl at any time.
The appellant was a man of good character, apart from these matters alleged against him and there is no suggestion of any improper activity of any sort carried out by him after the end of 1973.
It is helpful at this stage to tabulate the counts on the indictment and on which guilty verdicts were returned and the sentences imposed on the individual counts.
All offences, of course, precede the Sexual Offences Act 2003.
| Count on indictment | Offence | Pleaded guilty or convicted | Sentence | Consecutive or Concurrent | Maximum |
| Count 1 | Attempted rape of J | Convicted | 2 years | Concurrent | 7 years |
| Count 3 | Indecent assault upon J | Convicted | 18 months | Concurrent | 2 years |
| Count 4 | Attempted rape of G | Convicted | 4 years | Concurrent | 7 years |
| Counts 5–10 | Indecent assault upon G | Convicted | 2 years | Concurrent | 2 years |
| Count 11 | Indecency with a Child (S) | Convicted | 2 years | Concurrent | 2 years |
| Counts 14 -15 | Rape of S | Convicted | 11 years | Concurrent | Life |
| Count 16 | Indecent Assault upon Y | Convicted | 18 months | Concurrent | 5 years |
| Total Sentence: | 11 YEARS IMPRISONMENT |
Prior to the trial the defence sought a stay on the grounds of abuse of process due to delay. The judge, having heard detailed submissions made by counsel, made a ruling in May 2012 having reserved judgment to consider the matter over a period of about six weeks. The judge rejected the application. There was a further application made once the four complainants had given evidence at the trial and again the judge rejected the application and held that the trial process was capable of dealing with the problems raised by the passage of time and the potential effect it had upon the ability of the appellant to mount a proper defence and to have a fair trial. The judge gave full and detailed reasons for her decisions and she considered the relevant authorities including the decision of a five judge Court of Appeal in R v F (S) [2011] 2 Cr.App.R 28.
Earlier authorities and the decision in F (S) show that a stay on the grounds of delay should only be employed in exceptional circumstances and only if a fair trial is no longer possible owing to prejudice caused by the delay which cannot fairly be addressed in the trial process. Normally the trial process can ensure that all relevant factual issues arising from delay will be placed before the jury, together with appropriate directions from the judge in summing-up. These are essential considerations in the assessment of whether or not a defendant will suffer serious prejudice.
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. Mr Kimsey has rightly concentrated on the question of prejudice to the defence caused by the absence of witnesses and documents arising from the delay. Quite apart from the question of missing materials, there were raised by...
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