Responding to the danger of wrongful conviction for historical sexual abuse: A case for resurrecting abuse of process for delay?
| Published date | 01 January 2025 |
| DOI | http://doi.org/10.1177/13657127241237909 |
| Author | Holly Greenwood |
| Date | 01 January 2025 |
Responding to thedanger of
wrongful conviction for historical
sexual abuse: A case for resurrecting
abuse of process for delay?
Holly Greenwood
School of Law and Politics, Cardiff University, Cardiff, UK
Abstract
This article examines the potentialrisk of wrongful conviction for defendants facing historical
sexual abuse charges where there is substantial delay. Thisrisk arises from problems with
truth-finding based on witness testimony, challenges posed by missing evidence and the
increasing erosion of procedural safeguards. This article considers two recent proposals for
reform, including first, whether the Court of Appeal should be more prepared to revisit
the factual basis of decisions in historical sexual offence appeals; or second, whether there
is a need to strengthen procedural safeguards at trial through the doctrine of abuse of process
for delay. This article concludes that, whilst there would be advantages to broadening the
grounds for appeal, the criminal courts should be more prepared to stay substantially delayed
claims for abuse of process where there is missing evidence. The current approach has the
potential to be unfair and fails to protect those defendants who are most disadvantaged by
delayed claims.
Keywords
Abuse of process, criminal appeals, delay, historical sexual abuse, miscarriage of justice,
wrongful conviction
Introduction
Historical sexual offences present unique difficulties for the criminal justice system. The private context
in which most sexual offences occur means there will often be no corroborating evidence outside of the
complainant(s)’s testimony. In such a context, there is an ‘obvious evidential problem’where accessing
the truth is especially difficult because only the involved parties may have the potential to know whether
the alleged crime occurred (Naughton, 2019: 462). This becomes more problematic where the reporting
Corresponding author:
Holly Greenwood, School of Law and Politics, Cardiff University, Cardiff, UK.
Email: greenwoodhc@cardiff.ac.uk
Article
The International Journal of
Evidence & Proof
2025, Vol. 29(1) 41–57
© The Author(s) 2024
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/13657127241237909
journals.sagepub.com/home/epj
of the alleged offences has been significantly delayed. There is no statute of limitations for indictable
offences in England and Wales, meaning that offences can be prosecuted decades after they allegedly
occurred. In cases where there is substantial delay, there will often be a non-specificity to the allegations.
This leads to defendants being charged for offences in specimen counts, which state that a certain offence
happened at various times across multiple years with no specific details available around the dates or
timing of the alleged incidents. This article is predominantly concerned with the danger of wrongful con-
viction in this context, where the substantial delay coupled with the vagueness of the allegations makes it
extremely difficult for the defendant to mount a defence to the charge(s). Therefore, whilst there is no
clear definition of what makes something a ‘historical’offence or what constitutes ‘substantial’delay,
the concerns addressed in this paper are likely mostly relevant where the alleged offences occurred at
least a decade before reporting.
This article will argue that problems with factfinding based on witness testimony leaves defendants
vulnerable to wrongful conviction in this context. In response, it might be argued the systemic under-
prosecution of sexual offences (including historical and otherwise)
1
(see for example, House of
Commons Home Affairs Committee, 2022) justifies the current approach, as the proportion of cases
brought to trial is so small that, within this, the chance of false allegations being prosecuted must be
so limited as to be negligible. There is no certain way to assess the potential danger of wrongful convic-
tion by debating whether (and to what extent) false allegations might be made. Research is limited due to
difficulties with identifying and measuring what might count as a ‘false’complaint (Rumney, 2006) and
there are significant methodological limitations to many studies which make claims about the rate of false
allegations (Rumney and McCartan, 2017). Therefore, debates around the prevalence (or lack thereof) of
false complaints serve little purpose, as arguments on both sides are equally plagued by difficulties
(Naughton, 2019). Furthermore, whilst wrongful convictions for all offences have significant conse-
quences for those affected (see for example, Grounds, 2004 and Hoyle and Tilt, 2018), the serious
nature of sexual offences and the stigma attached to them makes the impact of a false allegation particu-
larly severe, as was demonstrated in empirical research by Burnett et al. (2017). Therefore, it is important
that the criminal justice system has sufficient safeguards for defendants to protect them against wrongful
conviction in this context. Crucially, whilst we cannot assess the potential extent of false allegations and
wrongful convictions for historical sexual abuse, we can turn our attention to the process by which guilty
verdicts are reached and upheld. If we cannot be confident that the criminal justice process can always
reach a safe verdict in historical sexual abuse cases, then this should warrant consideration.
First, this article will outline why there is a potential danger of wrongful conviction in historical sexual
offence cases. The key point is that jury verdicts based upon an assessment of witness credibility are vul-
nerable to error. Therefore, difficulties with truth-finding in historical sexual abuse cases make it impera-
tive to have due process safeguards to protect defendants from wrongful conviction. Yet, as will be
argued, it is debatable whether there is currently sufficient protection in cases involving substantial delay.
Second, this article will consider two recent proposals for reform in response to this perceived danger
of wrongful conviction. First, whether there is an argument to broaden the right to appeal against convic-
tions for historical sexual offences to encourage the Court of Appeal (Criminal Division) (hereafter
CACD) to be more willing to revisit jury verdicts to examine the factual strength of the evidence under-
pinning the conviction (Henry and Gray, 2020). Or second, whether the courts should be more willing to
stay prosecutions for historical sexual abuse where there is substantial delay on the grounds that the
defendant cannot have a fair trial (Hickman, 2020). This paper will argue that, whilst there would be
1.There is no specific statistical data which records the number of historical sexual offences reported and prosecuted. However, it
has been well documented that rape has a low prosecution rate. For example, in between September 2020–2021, it was reported
that only 1.3% of reported rapes had resulted in a charge or summons (see House of Commons Home Affairs Committee Report
2021–2022).
42 The International Journal of Evidence & Proof 29(1)
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