Trial - Practice and procedure - Indecent assault

Prosecution Appeal; CPS v F: Court of Appeal, Criminal Division: 21 July 2011

The defendant was charged with two counts of buggery and three counts of indecent assault on a male person. The counts related his step-brother and they were alleged to have occurred in 1992 when the defendant was aged 16 and the complainant was aged around 6. No complainant 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 grounds of abuse of process based on the delay in the complaint being made. The judge declined to rule on the application at that point and the trial proceeded.

The complainant explained in evidence the reason for the delay in making the complaint. At the end of the prosecution case, the judge considered and granted the application for a stay mainly on the ground that 'there was no satisfactory explanation for the failure to report the matter'. She held that 'a jury properly fully directed could not safely return a verdict of guilty on the evidence before them …'. The prosecution appealed, pursuant to s 58 of the Criminal Justice Act 2003, against the terminating ruling.

Issues arose as to: (i) whether a prosecution should be stayed for 'abuse of process' on the grounds that the defendant could not receive a fair trial; (ii) whether the case should be withdrawn from the jury on the grounds that the evidence was such that a conviction would be unsafe on Galbraith principles; and (iii) whether (i) and (ii) were two distinct matters that had been wrongly elided. It further fell to be determined whether unjustified delay in the making of a complaint of sexual abuse was in itself a sufficient reason for a stay of proceedings and whether it was lawful for judges, in advance of a conviction, to consider whether a conviction would be unsafe. Consideration was given to R v Galbraith [1981] 2 All ER 1060, Attorney General’s Reference (No 1 of 1990) [1992] 1 QB 630, R v Bell [2002] 2 Cr App R 13, and R v Smolinski [2004] 2 Cr App R 40.

The appeal would be allowed.

(i) An application to stay for abuse of process on grounds of delay and a submission of 'no case to answer' were two distinct matters. They had to receive distinct and separate consideration (see [39]-[40] of the judgment).

(ii) Unjustified delay in the making of a complaint was not by itself a sufficient reason for a stay for abuse of process. Such an application had to be determined in accordance with Attorney-General's Reference (No I) of 1990. It could not succeed unless, exceptionally, a fair trial was no longer possible owing to prejudice to the defendant occasioned by the delay which could not fairly be addressed in the normal trial process. The presence or absence of explanation or justification for the delay was relevant only insofar as it bore on that question (see [38]-[40] of the judgment).

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

(iv) There was no different Galbraith test for offences which were alleged to have been committed some years ago, whether or not they were sexual offences (see [41] of the judgment).

(v) Smolinski did not establish that a stay should be deferred until the evidence was complete. Unless there was a specific reason for deferment, an application to stay on abuse of process grounds was preliminary to the trial, and ought normally to be dealt with at the outset. Importantly, as underlined in the authorities, it was only in the exception cases where a fair trial was not possible that such applications were justified on the grounds of delay, even when the pre-condition to a successful application, serious prejudice, might have occurred (see [43]-[45] of the judgment).

In the instant case, the judge appeared to have been led into thinking that the crux of her decision was the presence or absence of a justification for the delayed complaint. Accordingly, she had applied the wrong test. The matters raised as to the reason for the delay did not provide any reason on abuse of process grounds for preventing the trial from taking place, or continuing to its normal end (see [42] of the judgment).

R v Galbraith [1981] 2 All ER 1060 considered; Attorney General’s Reference (No 1 of 1990) [1992] 1 QB 630 considered; R v Bell [2002] 2 Cr App R 13 considered; R v Smolinski [2004] 2 Cr App R 40 explained; R v MacKreth [2009] All ER (D) 67 (Sep) considered.

Per curiam: When abuse of process submissions on the grounds of delay are advanced, provided the principles articulated in Galbraith and Attorney-General's Reference (No I) of 1990 are clearly understood, it will no longer be necessary or appropriate for reference to be made to any of the decision of this court except Stephen Paul S and the instant decision. These four authorities contain all the necessary discussion about the applicable principles. In this court, but not the Crown Court, where the separate question of the safety of the conviction arise for decision, only the authorities of Bell and Smolinski should be cited. No further citation of authority is needed.

John Price QC and Toyin Salako (assigned by the Registrar of Criminal Appeals) for the defendant. Adrienne Knight (instructed by the Crown Prosecution Service) for the Crown.