GG, R v [2005] EWCA Crim 1792

Case No 200403373 C1[2005] EWCA Crim 1792
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 22nd June 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE CLARKE
MR JUSTICE HUGHES
MRS JUSTICE DOBBS DBE
Between
R E G I N ACrown-v-
Between
GG
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR M BARLOW appeared for APPELLANTMISS L BLACKWELL appeared for CROWN
J U D G M E N T

LORD JUSTICE CLARKE: This is the judgment of the court.

[2]The appellant is GG, who is now aged about 64. On 26th March 1999 in the Crown Court at Manchester before His Honour Judge Ensor and a jury, he was convicted of indecent assault on a female (count 1) by a majority of 10 to 2.[3]On 29th March 1999, he was convicted of four counts of rape (counts 2 to 5) by a majority of 10 to 2. On the same date, he was sentenced to two years' imprisonment on count 1 and eight years' imprisonment on each of the remaining counts to run concurrently. The total sentence was therefore eight-years' imprisonment. The appellant was acquitted of a further count of indecent assault on a female, which was count 6. Having been convicted of a sexual offence to which Part 1 of the Sex Offenders Act applies, he was required to comply with the provisions of section 2 of the Act, which requires notification to the police indefinitely.[4]On 26th October 1999, the full court (Wright and Jackson JJ) refused his renewed application for leave to appeal against conviction, after initial refusal on the papers by the single judge. He now appeals against conviction on a reference by the Criminal Cases Review Commission ("the Commission") under section 9 of the Criminal Appeal Act 1995, on the basis that there was identifiable prejudice resulting from delay and consequential damage to the trial process.[5]The complainant in this case is the appellant's daughter, CA. She made a complaint to the police on 2nd March 1998 that her father had sexually abused her as a child. It was the Crown's case that the abuse started around 1974 when the complainant was 12 years old. It began with a series of indecent assaults and culminated in the appellant raping her on a weekly basis until she was 16 years old. The counts were specimen counts.[6]The defence case was straightforward denial. The appellant denied indecently assaulting or having sexual intercourse with the complainant consensually or otherwise. The evidence is summarised in detail in the summing up. It is also set out in some detail in the judgment of this court given by Jackson J on 26th October 1999 and in the reasons given by the Commission on 10th June 2004 in support of its decision to refer. Like Jackson J, we should say at the outset that no report of this case should reveal the identity of the complainant or give information which might lead to her identification. We shall refer to her as CA and to her siblings by initials. We summarise the case for each side and the relevant evidence from the Commission's reasons, without quoting from them verbatim.[7]The prosecution case was that the complainant was afraid of her father. He was a bully who forced his children to undertake "chores" in the pub where the family lived to a degree over and above a level that could ordinarily be expected. In 1974 when the complainant, CA, was 12, her father asked her to take her clothes off in front of him when she was having a bath. This made her embarrassed and uncomfortable. Within quite a short time, he began to indecently assault her by touching her breasts and vaginal area. This was, at first, over her clothing but progressed to being under her clothing and also involved her being made to hold and move her hand on his penis.[8]The appellant first raped her when she was 12 years old in her brother's bedroom and this continued on a more or less weekly basis until she was 16 years old. He warned her not to tell anyone as this would cause trouble and he threatened her that he would involve the police. Sexual intercourse took place every Tuesday until CA was 16 but before that her mother had left the family home taking their daughter, J, with her, with CA remaining living with her father.[9]The abuse stopped when her father remarried and his new wife, JN, and her daughter came to live with the appellant and CA. CA subsequently made a further allegation of indecent assault against her father. The allegations of rape were contained in counts 2, 3, 4 and 5, which were specimen counts to cover the ages of 12, 13, 14 and 15. It was put to CA, and accepted by her, that on her evidence she must have been raped over 150 times. CA further alleged that when she was 23, he put his hand on her leg and kissed her; that allegation was made at the same time as those on which the appellant was convicted. He denied the allegation, which became the subject matter of count 6 on the indictment of which he was acquitted.[10]The complainant's mother, M, gave evidence for the Crown. She said that her relationship with her husband was not very good and also that his relationship with his children was not very good either. She described CA as being a very quiet girl. On one occasion, she had been abroad and upon her return discovered that CA had made allegations of indecent assault against her father to her friend, GE. She put these allegations to her husband but he denied them.[11]However, as a result, she moved out of the family home with the children and went to live with her mother for a time before moving back in with her husband. She gave evidence of another incident when she went upstairs in the pub looking for her husband. She went into CA's bedroom where she found CA in bed and the appellant standing with his hands under the bedclothes. She had not done anything about this.[12]The complainant gave evidence that there was one specific time when she was 13 that, following an incident of indecent assault, she reported the matter to an adult friend, GE. She said that she had been watching television and her father had run his hands up and down her legs. She said that something clicked and "I didn't want to do this". She had decided to tell GE about it. GE had offered to take the complainant into her home after hearing the allegation and, as a result, the complainant went to live with GE for a time. She said that all she told GE about was the touching; she hoped that that would be enough (presumably if it was put to the appellant) to make the appellant stop. The complainant's mother was on holiday abroad at the time and when she returned and heard of it, she left and took the children to CA's grandmother's house. Eventually the family all moved back to the pub where the appellant was the landlord.[13]The incident was informally reported to the police but no official investigation was conducted and no records kept. According to CA, she was seen three times by the police: once at her grandmother's house and twice at GE's house. She did not tell them of the serious sexual abuse at the hands of her father. There were two specific matters stated in evidence which were said to support the complainant's account of the incident. The first was the evidence given by GE who gave what was described in argument as recent complaint evidence. She said that she had limited recollection of the incident, which had occurred more than 20 years before the trial, but remembered that on an occasion in late summer, CA had telephoned her very upset and distressed. She asked GE to pick her up. When she did so, CA told GE that her father had touched her and pointed to her breast. As a result, GE contacted CA's mother and the police were brought in. GE described the appellant in evidence as being a bully.[14]The second matter was part of the complainant's evidence. The complainant said, in evidence, that she had feigned illness at the time in order to be admitted into hospital and establish a pretext for getting away from her father. However evidence was adduced and put to the appellant in cross-examination which showed that her two admissions to hospital at this time were due to genuine and not feigned illness.[15]The appellant gave evidence in which he denied all the allegations made against him. He believed that the complainant made the first allegation to GE because he had objected to her going to GE's house. He accepted that when the allegation was made in 1977, he took no steps to have CA seen by a doctor although he did take her to see SC because she had experience of dealing with children. He believed that he had had a normal happy relationship with the complainant and nothing untoward had happened.[16]His first wife left him in 1981 with both his daughters, namely J and CA. However, CA returned to live with him shortly afterwards. His second wife brought her daughter, A, who came to live with the appellant shortly after his first wife left. He believed that the complainant was very resentful of his second wife at first. He believed that matters had come to a head after a family christening in December 1997, when the complainant telephoned him saying that she would destroy him and have him branded as a paedophile.[17]The appellant's other daughter, J, gave evidence for the defence and said that there was nothing unusual about the relationship between the complainant and her father, and that there was no indecency but that CA was her father's favourite. She certainly gave her opinion of CA as being, as quoted in the summing up, "vindictive and nasty. Always making mountains out of molehills. Has done it all her life."[18]SC also gave evidence for the defence but said that she had no recollection of being asked to advise CA about the allegations she had made against her father. She did say that the appellant was not a bully, "if anything, he was a soft touch." We will return to her evidence in a moment.[19]No application was made at the trial that the proceedings should be stayed because of the delay, nor was it submitted to the judge that he should give some further or different direction on account of the delay or passage of time. As already indicated, the appellant sought to appeal against his conviction in 1999. There were four grounds of proposed appeal of which the first, second and third were criticisms of the summing up. This court considered each of those criticisms in some detail but rejected them (see pages 8 to 11 of the transcript of the judgment.) The fourth ground was based upon the way the judge dealt with a juror who was unwell. This court considered the point made, again in some detail, and rejected it (see pages 11 to 13.) We do not understand the Commission to have criticised the approach of this court at that time, and no attempt is now made to revisit those grounds. The court concluded by saying that, as it saw it, the convictions were safe.[20]It now appears that following the appellant's conviction CA made a successful application for compensation to the CICA, the Criminal Injuries Compensation Authority. The appellant had stated that before he was charged, CA had said she was going to make money out of him. That was communicated to the appellant's trial solicitors but not used at the trial. The appellant applied to the Commission for a review of his conviction on 13th April 2000. The Commission set out the grounds of his application in some detail in paragraphs 3.1 to 3.8 of its reasons. The grounds were these: that CA's evidence contained discrepancies, that the evidence of four witnesses, including CA's mother and GE, should have been ruled inadmissible, that the verdicts of guilty on counts 1 to 5 (and of not guilty on count 6) were logically inconsistent, that J and CA's mother could give new evidence and that AH could give evidence that CA had had a relationship with a man called S from whom she had contracted venereal disease.[21]Those grounds were contained in two letters from the appellant's solicitors and one letter from J. There is no suggestion that any of the letters relied upon delay. The point now taken appears to be a point taken, as it were, of the Commission's own motion. It is, of course, none the worse for that, if it is a good point, but it is perhaps surprising that it was not taken earlier by any of the appellant's legal advisers.[22]As it appears from paragraph 4.1 to 6.3.8 of the reasons, the Commission investigated the grounds relied upon by, or on behalf of, the appellant in considerable detail. It did not accept any of them. It then considered what it called "impact upon safety of the conviction of delay in bringing the prosecution due to lateness of the complaints."[23]In paragraph 6.4, the Commission said:
"In addition to the specific matters raised by [GG], the Commission has considered whether -- on the specific facts of his case -- the conviction might be found to be unsafe by reason of the lapse of time between the incidents complained and the trial and the attendant difficulties for [GG] in defending himself against the allegations made against him."
[24]The Commission then considered a number of cases including: R v B [2003] EWCA Crim 319, Mansoor [2003] EWCA Crim 1280, Hooper [2003] EWCA Crim 2427 and Brizzalari [2004] EWCA Crim 310. In the light of those authorities, the Commission focused upon what it called the specifics of the appellant's case. The Commission identified the fact that there was a delay of some 20 or more years between the incidents, which were said to have occurred over a period of 1975 to 1979, and CA formally reporting him to the police in 1988. It added that the appellant's defence could essentially be based only on his own assertions that he had not committed the offences. The Commission, however, identified a number of specific aspects of the case upon which the appellant now relies in this appeal.[25]They are: inconsistencies of CA's accounts of the incident of recent complaint, lack of information about her complaints to the police, the evidence of SC and what the Commission calls "the Hospital Evidence". We will return to those aspects of the case, as far as necessary, in a moment. We consider first how and why it was that none of these points were taken earlier.[26]The Commission contacted Mr Howard Bradshaw who was counsel for the appellant at the trial and indeed on the oral application for leave to appeal to this court which was heard by Wright J and Jackson J. The Commission wrote to Mr Bradshaw on 12th November 2003 saying that the matter had been put before a committee of Commission members with the possibility that a referral would be made to this court. The committee decided to ask counsel for his comments, in the light of the decisions in Katrina Mosley, unreported, and Dogherty [1997] 2 Cr App R 218.[27]The Commission accordingly put the specific points which concerned it in some detail to Mr Bradshaw. Mr Bradshaw replied, also in detail, in a letter dated 21st December 2003. Subsequently, some further points were put to him by the Case Review Manager, whereafter a telephone conversation took place between them which was subsequently summarised by the Case Review Manager.[28]The Commission concluded: 1) that there was an arguable case that the prosecution should have been stayed as an abuse of process; 2) that if such an application had been made and failed, the judge would, or might, have given a more detailed direction as to delay and its possible effects; 3) that the directions as to delay were insufficient; and 4) that it was arguable that this is a case in which the court should exercise its residual power to hold that the conviction was unsafe because of what used to be a called a lurking doubt. Thereafter, in the light of the Commission's report and review, Mr Barlow, who has appeared for the appellant in this appeal, drafted five grounds of appeal which we will consider under these headings: 1) Recent Complaint; 2) Real Prejudice Caused by Delay; 3) Inadequacy of Direction on Delay; 4) Inadequacy of Direction on Good Character; and 5) Residual Discretion. (1) "Recent Complaint"[29]As we read this ground of appeal, it complains not that the evidence of the complaint to GE was inadmissible, but that the judge failed to give adequate directions to the jury. Mr Barlow confirmed that that is indeed the case in the course of his helpful oral argument. We now have the benefit of the analysis of the relevant principles by this court in the judgment of the court given by Thomas LJ in Eric Charles S [2004] EWCA Crim 1320.[30]As we read it, in so far as it is relevant to this case, this analysis shows: 1) that the principle upon which the evidence of recent complaint is admitted is to support and enhance the credibility of the complainant (see paragraph 17); 2) that the evidence is inadmissible if it is wholly inconsistent with the evidence of the complainant (see paragraph 18); 3) that otherwise any inconsistency is a matter for the jury (see eg paragraph 25 and paragraph 28); and 4) that the fact that the events occurred a long time ago does not make inadmissible evidence which would otherwise be admissible (see the decision itself).[31]In this case, the evidence of CA and GE as to what CA told GE was admissible on this basis. Although we do not have the judge's ruling, the basis upon which in evidence it was admitted can be seen from the direction given by

the judge at page 4 C to H of the summing up, where he said this:

"There are very strict rules of evidence about hearing of people who claim to have heard the defendant complaining to them about these events ..."
[32]We think that should read that there are very strict rules of evidence about hearing from people who claim to have heard the complainant complaining to them about these events:
"... had she made complaints, it is quite possible that you would not necessarily hear about. You have heard in the course of the case witnesses being stopped from saying what somebody said to them. That is what we call hearsay. It is sort of second-hand evidence, and so, Members of the Jury, if complaints had been made, as I say, you would not necessarily have heard of them, but you did hear, did you not, from [GE]. She told you about a complaint which [CA] made shortly after an incident which she says happened when she was about 13 when she was alone in the public house with her father when he, she claims, indecently touched her on the breast, and you will recall the evidence she gave was that she fled, went to a telephone box and telephoned [GE]. Now you have heard [GE] tell you about what was said. What [GE] told you is not evidence as to actually what happened between [CA] and her father. [GE] was not present, and she did not see what happened between them, but it is evidence which you are entitled to consider because it may help you to decide whether or not [CA] has told you the truth. It is for you to decide whether the evidence of this complainant helps you to reach a decision, but it is important that you should understand that it is not independent of what happened between [CA] and the father and it therefore cannot of itself prove that the complaint is true."
[33]It is clear from that passage that the evidence was held to be admissible and was admitted as relevant only to the credibility of CA. The judge was, in our judgment, plainly entitled to admit it. The evidence was not wholly inconsistent with CA's evidence; on the contrary, it was consistent with her having been indecently assaulted but with her not telling GE everything.[34]The thrust of Mr Barlow's submission is directed at the directions given by the judge to the jury: he submits that the directions were not adequate. In considering this submission, we say at once that we entirely accept that it is incumbent on a judge to give a proper direction as to how the jury should approach evidence of recent complaint. That is plain from many cases, including Eric Charles S. What directions are appropriate depends of course on the circumstances of the particular case.[35]We agree with Mr Barlow that if such evidence is admissible, it is for the jury, properly directed, to consider the whole of the circumstances relating to the contemporaneous complaint in determining whether the evidence supports the complainant's evidence and what weight they consider should be attached to it in the assessment of the credibility of the complainant. Mr Barlow submits that the judge did not contrast the evidence of CA and the evidence of GE in this regard, or at least that he did not specifically or sufficiently highlight the discrepancies.

The judge summarised CA's evidence in this regard at page 6G to 7C of his summing up as follows:

"And she said that it continued, and she said this: it happened again, oral sex and then sexual intercourse, but the oral sex petered out quite quickly and then it was normal sex every Tuesday. She said 'I was 12 when it started, and it happened until I was 16.' And then she told you about another incident where she was watching television and it was the Summer and the mother was away abroad, and her father ran his hands up and down her legs, and she said something clicked and she said 'I didn't want to do this' so she went through the pub to the village and phoned [GE]. She estimated she was 13 then, and she asked [GE] to pick her up, and she told her, she said, about the day, the incident that had happened. She said she just wanted it to stop, and her recollection is that as a result of that she lived at [GE's] house for some weeks she thought, and her mother when she came to hear about it moved to nana's, her mother's mother with the brother and sister, and her mother then bought a terraced house, but it was not a happy situation she told you. Her mother was upset, the police were involved, there was no money coming in, at a different school, and everything that her father said would happen did happen and she felt responsible, as her father had said she would be. Her words were 'It was me who had done all this. Everyone was upset', and so back they went to the [JC]."
[37]A little later, although not much later, because this passage appears on page 10 of the transcript,

the judge said this at page 10E to 11A:

"[GE] gave evidence on Wednesday. She was the last witness you saw on Wednesday afternoon. She is a lady now who was being asked to recall events which happened some time ago when we are told she was about 23 years of age. She told you how she got to know this family because her husband Roy had met the defendant when they had worked behind a bar, some pub elsewhere before the [JC], before the defendant took the tenancy of the [JC]. She started to work there and a friendship developed, so much so that she and her husband temporarily looked after the public house for two weeks and looked after the children when the defendant and his first wife went away on holiday. She told you, because she would know having worked there, about what work they did. She said [CA] did the bottling up and general chores, washing down, laundrette, shopping, everything. That is what she told you. She said 'I got very close to [CA]', and she remembers one late Summer a 'phone call from [CA], very upset and distressed. 'She asked me to pick her up. She was in the call box at the end of the road.' [GE] said she was absolutely distraught, not just distressed, and she got into the car and said 'Dad's touched me', and pointed to her breast, and as a result of that she contacted [CA's] mother and the police were brought in, and the police came to her home, and after that she, [GE], never went back to work at the public house."
[38]In our judgment, it is important to note that the substance of the evidence of both witnesses and the time it related to, namely when CA's mother was on holiday, was the same. Moreover, whatever the precise complaint was, it led to CA's mother being told. It also led to the allegation of indecent assault being put to the appellant, who denied it, and indeed being reported both to SC and to the police, to whom we return below. Thus there can be no doubt that some sexual complaint was made. It is correct to say that there was, however, an inconsistency between the evidence of CA on the one hand and that of GE on the other. It is that CA said that she was prompted to complain when the appellant ran his hand up and down her legs and something clicked and she said she told GE about "that day, the incident that happened" whereas GE said that "CA said 'Dad's touched me' and pointed to her breast."[39]Should the judge have gone further than he did in drawing this inconsistency to the attention of the jury? In our judgment, the answer to that question is no. We do not see how pointing out this particular inconsistency would have assisted the defence.[40]A much more important point from the defence point of view arose out of the evidence of what CA told GE. On CA's evidence by the time of this conversation, whatever its precise content, the appellant had already raped her a not inconsiderable number of times. Yet neither CA nor GE said that CA told her about the rapes. Thus, the defence were able to argue that this was a clear pointer that CA's evidence was unreliable. This point does not however arise out of any inconsistency between the evidence of CA and GE but out of CA's failure to mention the rapes at all.[41]It is a point that was not lost on Mr Bradshaw, as defence counsel at the trial; this can be seen from the letter he wrote to the Commission on 21st December 2003. When the alleged inconsistencies were put to Mr Bradshaw, he said this in his letter of 21st December 2003, albeit in the context of his decision not to apply for a stay:
"It may be helpful if I set out, in summary form, the five matters which (it is said) might have been relied on in support of the application, and append my comments. (a) [GE] said in evidence that in or about 1977 or 1978 the complainant alleged to her that the defendant had touched her breasts, that the complainant had said in evidence that her complaint to [GE] followed an incident in which the defendant had touched her legs, and that in any event that at the time the complainant made her complaint to [GE] she had been the subject of repeated rapes by the defendant. The trial judge told the jury that it might make allowances for the lapse of time in evaluating the evidence of [GE] and plainly there was no prospect of conducting a rigorous cross-examination of her. It might have been argued in support of an application to stay the indictment that, but for the lapse of time, the defence would have been able to explore the inconsistency between the complainant's evidence and the complaint ... "
The answer to this contention is, I think, as follows: (i) An application to stay the indictment on the basis of the above inconsistencies would have been met with the incontrovertible response that the complainant herself did not contend, in her evidence or in her witness statement, that she had told [GE] that she had been the subject of repeated rapes. In short, the significance of the inconsistencies lay not so much in the fact that [GE] said in evidence that the complainant had told her that the defendant had touched her breasts whereas the complainant had said in evidence that the defendant had touched her legs, but rather in the fact that the complainant had failed to mention that she had been the subject of repeated rapes by the defendant. A prosecution closer in time to the date of the allegations would more likely have led to a greater degree of consistency between the evidence of the complainant on the one hand, and [GE] on the other. In other words, the delay is likely to have inured to the benefit of the defendant. I am unable to say with certainty whether these arguments would have led me to the conclusion not to make an application to stay the indictment on the ground(s) set out above, but I incline to the view that I would have anticipated the likely (and, I believe, correct) response. (b) There was evidence at trial that, following the complaint, the police were involved but took no action, either by way of charging the defendant or involving the statutory agencies. Whilst the officers interviewing the complainant were no doubt less trained and skilled than their counterparts today, it would seem an obvious inference that had the complainants summoned up the courage to make a complaint: (i) that in principle there was an expectation that she would (or at any right might) disclose substantially the full extent of the abuse to which she was subject; but (ii)(given the decision of the police to take no action) the complainant's allegations must have been relatively trivial. The argument might have been put to the judge that the lapse of time (and the destruction of police records) prevented the defence from pursuing this issue and (possibly) putting to the complainant her previous inconsistent statements. "The answer to this contention is, I think, as follows: (i) I recall clearly that I was concerned that the jury should not learn that a complaint had been made to the police following the complainant's complaint to [GE] in 1977 or 1978 (when the complainant would have been about thirteen years of age). I took the view that the revelation to the jury of the fact of a complaint by the complainant at that age would have weighed significantly with the jury when it came to assess the complainant's credibility. A trawl through the records (if available) of what the complainant had said would have served only to highlight (to me) the damaging fact of the complaint. I am clear that counsel for the prosecution agreed that the fact of the complaint to the police would not have been admissible in evidence. I am equally clear that the fact of the complaint to the police at that time was not adduced in evidence before the jury, or remarked on by prosecution counsel or by me. To that extent, there was no need to make an application to stay the indictment on the ground of delay. However, the fact of a complaint was mentioned by the judge in his summing up (at the bottom of pages eight, eleven and fourteen of the transcript of the summing-up), and on more mature reflection could properly have formed a reasonably arguable ground of appeal in my perfected grounds of appeal."[42]We will return to that last passage in a moment. Those observations by Mr Bradshaw were made in the context of delay. They show that Mr Bradshaw focused on CA's failure to complain about the rapes and not on the inconsistencies. The reason was that emphasis on the inconsistencies would not have assisted the defence case, because there was ample evidence that an allegation of indecent assault had been made, but any reference to the inconsistencies would highlight the fact of the indecent assault, which could not possibly have helped the appellant in circumstances in which it was his evidence that he had committed no indecent assault at all.[43]We also agree with the point made by Mr Bradshaw in the letter that in this regard delay was likely to have enured for the benefit of the appellant because the evidence of CA and GE, as to precisely what CA said to GE, might have been consistent as opposed to inconsistent if given nearer to the relevant events. We will return further to the incidence of delay in this connection below, in connection with grounds 2 and 3. We do not think that the judge's direction to the jury in connection with recent complaint and the inconsistency between the evidence of CA and GE can fairly be criticised. (2) "Real prejudice caused by delay" and (3) "Inadequacy of direction on delay"[44]We turn to delay by reference to grounds 2 and 3 which are expressed in this way:
"Ground 2 The delay in bringing the prosecution created real prejudice to the Appellant and which resulted in him being unable to have a fair hearing. In this case there were specific prejudices caused by the delay ... Ground 3 The learned judge's direction to the jury on delay was brief and failed to deal adequately or at all, with the prejudice caused to the Appellant. This was a serious non direction and which compounded the pre-existing prejudice created by the recent complaint evidence."
[45]In his detailed analysis, Mr Barlow says this under the heading "Abuse of process":
"It is clear that Counsel at trial did not consider making an application to stay the proceedings as an abuse of process. It seems that very properly, Counsel having reflected on the issues accept that an application should have been made."
[46]In our judgment, those two sentences are not fair to Mr Bradshaw. In the first two paragraphs of the letter of 21st December 2003, from which I have already quoted, he says this:
"In your letters you have identified some five matters which might have been relied on in support of an application by me to the trial judge for an order staying the indictment on the ground that the delay between the dates of the allegations made by the complainant and the preferment of charges by the police was such that a fair trial was not possible, and that therefore a trial would amount to an abuse of process. You have indicated that the Commission is not necessarily putting it to me that an application for a stay should have been made, but is seeking a clear understanding of what considerations I took into account in taking the decision not to make such an application."
[47]Implicit in that second paragraph is that Mr Bradshaw in fact considered the possibility of applying for a stay and decided not to. In his conclusions, he said this:
"(1)I cannot pretend to have a clear recollection of the process by which I took the decision not to apply for an order staying the indictment. I am very mindful of the risk of reconstructing thought-processes which were not in fact applied at the time. "(2)I believe that, as a matter of regular, professional practice I would have had regard to the following matters: (i) the extent to which the defendant was likely to have been handicapped in raising an alibi defence and/or calling witnesses in support of his defence; (ii)the extent to which the defendant was likely to have been handicapped by reason of the fact that the prosecution was dependent on oral, rather than written, testimony; (iii)the fact that the law then applicable was that a stay should be an exceptional course for a trial judge to take; (iv)the age of the complainant at the time of the alleged offences; (v) the length of the delay; (vi)the reasons for the delay, i.e. the timing of the complaint rather than the delay in the prosecution process; (vii)the availability of witnesses, at the trial date, whom the prosecution and the defence might reasonably expect to wish to call."
[48]In our judgment, Mr Bradshaw is not there accepting that he did not consider applying for a stay but trying to reconstruct the reasons why he decided not to do so. Under the heading "The direction on the issue of delay", Mr Bradshaw said this in the letter:
"(i) There was a direction on the difficulties faced by the defence in consequence of delay. (ii) No significant difficulty or prejudice was relied on by the defence in the course of the trial (and none could have been in the context of a case in which the allegations were of systematic sexual abuse within the family home in which family members lived contemporaneously with the alleged victim and the alleged abuser). (iii) The importance of the burden and standard of proof followed immediately upon the direction as to delay."
[49]It is very easy to be wise after the event. It is true that Mr Bradshaw has, to some extent, watered down that firm view somewhat in discussion with the Commission. However, we have reached the clear view that on the authorities (notably Attorney General's Reference No 1 of 1990, (1992) 95 Cr App R 296, B -- which is otherwise know as Brian Selwyn B or Bell -- and Hooper, to both of which we have already referred), an application for a stay on the ground of abuse of process would have failed. In the Attorney General's Reference No 1 of 1990, Lord Lane CJ, giving the judgment of the court, said:
"Judges should be assiduous to ensure that there really was evidence of serious prejudice to the extent that a fair trial could not be held before they found that the defendant had discharged, on a balance of probabilities, the burden of proof that lay on him before any power of the sort sought to be invoked could be used."
[50]In our judgment, the decision of Mr Bradshaw not to apply for a stay was justified. Indeed, in the course of his oral submissions, Mr Barlow made it clear that he was not saying that Mr Bradshaw should have applied for a stay, or if he had that the judge would or ought to have stayed the proceedings.[51]In B, Lord Woolf CJ, giving the judgment of the court, restated the test in paragraph 18 of his judgment as follows:
"18.Pausing at this point, it might be thought that some other test might be applied other than the one which was applied in this case which is accepted to be appropriate. However, the passage of time in this jurisdiction has never been a ground in itself for the staying of a prosecution. Just as the courts do not close the door to allowing appeals out of time if new evidence is forthcoming to show that someone who is innocent has been convicted, so if the prosecution decides that there is a case to go before the jury, the courts do not in the ordinary way consider it right to interfere with the prosecution process as long as (and this is an important qualification) a fair trial is possible. The question of who is to be believed in a case of this nature is very much an issue for the jury and not for the judge. The judge has the responsibility for giving the jury appropriate warnings demanded by the circumstances."
[52]Lord Woolf subsequently said that questions of this kind can best be assessed at the end of the trial. However, we have reached the conclusion that, on the facts of this case -- whenever the question was addressed -- an application to stay these proceedings on the basis that a fair trial was not possible, would have failed.[53]In our view, Mr Barlow was right to accept that that was the case, provided of course that the judge properly and sufficiently directed the jury on the consequences of delay. It was upon the judge's directions that Mr Barlow principally focused his submissions. He submits that the judge's directions as to delay were not sufficient.[54]At the very outset of his summing up,

the judge said this at page 2 D:

"How does the prosecution succeed in proving the defendant's guilt? The answer to that is by making you sure of it. Nothing less than that will do, so if after considering all the evidence you are sure the defendant is guilty, you must return a verdict of guilty. If you are not sure your verdict must be not guilty. "
In this case, Members of the Jury, there has been delay in making these complaints, and that affects the defendant's ability to formulate his defence, to remember events and to find witnesses who have memories of these events. The only way of ensuring a fair trial, fair to the defendant, and of countering any prejudice to him is for you to have a conscientious concern for the burden and standard of proof direction which I have just given you."[55]The judge thus made it clear that the consequences of delay were to be taken into account in deciding whether the prosecution had discharged the burden of proof and thus whether they were sure of the appellant's guilt. In our judgment, a direction of that kind is sufficient, unless there is or are some particular point or points connected with delay to which the jury's attention should be drawn. Whether there are or not depends upon the way the trial has been conducted and, of course, upon all the circumstances of the case.[56]We have already expressed our view with regard to the inconsistency of evidence of CA and GE. Mr Barlow pointed to one or two further particular aspects of the case to which the Commission referred and which are related to the alleged recent complaint. The first relates to police evidence; it is submitted that if the delay had been shorter, it may well be that the police would have documents which might have supported the appellant and that the jury should have been given a specific warning in this regard.[57]However, it is not clear to us what warning should have been given, or how it might have assisted the appellant. The evidence is that the police were informed of the complaint that CA made to GE. Although no formal complaint was made to the police, it is reasonable to suppose that the police gave it some consideration; but we do not see how any documents which came into existence could have assisted the appellant. As we stated earlier, it is common ground that CA complained of what, at its lowest, was indecent touching.[58]The most that would have been discovered is the precise terms of the complaint which, given that a complaint was made to the appellant himself, would not assist him. It was never part of the prosecution's case, or indeed CA's evidence, that CA complained about the rapes. In these circumstances, it is not, in our view, surprising that the point was not expressly raised on behalf of the appellant at the trial. The position was again clearly put by Mr Bradshaw in his letter in the second of the two passages, which we have already quoted. In so far as Mr Bradshaw suggests at the end of that part of the quotation, that, as he put it, "on more mature reflection the directions could have formed a reasonably arguable ground of appeal". We do not agree.[59]There was nothing to be gained by the defence in highlighting the lack of documents. The key point to highlight was the one to which we have already referred, namely CA's failure to complain about the rapes for many years. Mr Barlow submits that this was a crucial point which the judge should have highlighted. We agree that it was indeed a crucial point, but we agree with Mr Bradshaw that it was highlighted: the key question in the case was whether CA was telling the truth when she said she had been raped. For example,

the judge said at page 6 of his summing up at F, just before the passage we have already quoted:

"And there it is, Members of the Jury, that was her evidence to you. Is she telling you the truth? Was she trying to assist you with this case, or was she telling you a pack of lies? You have to decide that."
[60]Then, with regard to her cross-examination,

the judge said this in an important passage between 8F and 9C:

"Now she was asked a number of things, and she accepts that if her evidence is true, it could have been up to 150 occasions over a period of three years when she had unprotected sex with her father in which she never became pregnant. She accepts that although she lived in close proximity to her mother, her sister and her half-brother, she never told them about these awful things that were happening to her. She was friendly with [GE], she baby-sat with her. She clearly sought her out as a friend when this incident occurred which I have just referred you to, but she did not tell her about these awful matters. She did not tell the form teacher and she did not tell any friends, [SC] or [JN], or any friends about these dreadful things which were going on between her and her father. She said as far as [GE] was concerned, she could only tell her about the touching, and she hoped it would be enough to stop him. She still thought people might think it was her fault. She was only 13 at that time, and when the police saw her she agreed she was seen to by the police at her grandmother's home and twice at [GE's] home, and she did not tell them about these matters. In fact she was not asked to make a statement or anything of that sort, and it is agreed no complaint was made and certainly her father was never interviewed by the police about these matters."

The judge was there highlighting the very points now being made:

[61]viz: 1) on CA's case, she was raped up to 150 times over a period of three years without becoming pregnant; yet 2) she never told anyone, she did not tell her mother, her sister or her half-brother and she only told GE about the indecent assault and not about the rapes.[62]So the question clearly put to the jury was whether they could be sure, in the light of those facts, that she was telling the truth. In our judgment, the jury could have been in no doubt that that was the question for them to decide. Moreover this point, namely why she did not tell anyone about the rapes, is not, in our view, affected, either at all, or at any rate to any significant degree, by the delay. It was a strong point available to the defence, delay or no delay.[63]We should say a word about the evidence of SC. As recorded by Mr Bradshaw in his letter, the point was this:
"(c) The defendant contacted SC at the time the allegations were made. She was called as a witness on behalf of the defendant. She had difficulty remembering events because of the lapse of time. The judge's summing-up perhaps implied that her lack of recollection impacted on the accuracy of her evidence, and that the defendant should have taken greater steps to have had the matter investigated. "
The answer to this contention is, I think, as follows:
"(i) I do not detect in the summing-up any implication that the defence should have taken greater steps to have had the matter investigated. "(ii)I remain of the view that there was an imbalance in the summing-up between, on the one hand, the absence of significant comment made by the judge about the effect of the passage of time on the evidence of the prosecution witnesses; and, on the other hand, the presence of significant comment on the evidence of the defence witnesses. I said as much in my perfected grounds of appeal, all of which were rejected. "(iii)I would not have felt that an application to stay the indictment on the ground of delay would have been appropriate in the course of, or during, the summing-up: by that time, the remedy would lie only in an appeal."
[64]We do not think that, fairly read, there was any unfairness of the kind suggested. The judge, at paragraph 13G, said:
"Well, [SC] gave evidence, and I am sure, Members of the Jury, you will think she was doing her best to recall matters that happened a long time ago. She clearly had a good relationship with the family and she came in when her mother was a cleaner to help her mother and to let her in, and so far as she is concerned, she did not see these children doing any jobs. She said that he was not a bully. I think she said he was a soft touch. Certainly she said that he was a very good man so far as she was concerned, and he had helped her when she had her illness, but she had no recollection of being asked by [CA], being asked to advise [CA] about the allegations she had made about her father. She recalled [CA] telling her, but no-one else asked her to advise, and although she recalled [CA] came for dinner with her husband to her house on that Sunday ..."
[65]It seems to us that the judge's comments were sympathetic to SC and thus to the appellant. In any event, she recalled CA telling her, and her evidence thus supported the fact of the complaint about indecent assault. As we have said more than once, the precise nature of the indecent conduct was irrelevant, given that the appellant denied any indecent conduct at all.[66]Then it is said, and again we will take this from Mr Bradshaw's letter:
"(d)The complainant stated in evidence that in 1976 she had succeeded in getting admitted to hospital due to feigned illness, as a means of escaping her father's household. The defence was able to establish that the two admissions to hospital were due to genuine illness. Whilst this was clearly insufficient to create any doubt in the minds of the jury as to the complainant's evidence, clearly it might have been argued to the judge that had the defence had greater opportunity to examine other inconsistencies, this matter might have had greater weight with the jury. "
The answer to this contention is as follows:
"(i) The omission of the judge to deal with this point was the subject of the first of the perfected grounds of appeal, all of which were rejected by the Court of Appeal (Criminal Division) upon a renewed application for permission to appeal. "(ii)I do not believe that this inconsistency/lapse of memory/lie on the part of the complainant could properly have impacted on decisions relating to earlier 'judgment calls' made by the defence, and I believe that I would have taken that view at the trial."
Thus this point was one dealt with by this court on the first application for leave to appeal.[67]All in all, and stepping back from the detailed points, we ask ourselves whether the judge's directions can properly be criticised in the context of delay. Our clear conclusion is that they cannot. In some cases of historic sexual complaint, the defendant really does have a difficulty because he can do no more than deny the allegations.[68]In this case, as Miss Blackwell observed both in the course of her oral submissions and in her skeleton argument, the appellant had a number of ways of contesting the allegations made against him which went much further than mere denial. For example: the inconsistency of the recent complaint, both as between the witnesses and as to the full allegations made; the fact that the complainant did not make a full complaint to the police; the fact that the complainant returned to live and work with the appellant after the rapes took place; the evidence of the hospital records as to her treatment there, namely genuine illness by way of contrast to her evidence that she had feigned illness. Those were all points which could be made on behalf of the appellant to test CA's credibility. It was a matter for the jury where the truth lay.[69]Every possible stone has been turned over on the appellant's behalf as a result of the Commission's report and Mr Barlow's submissions, but in the context of this particular case we are of the clear view that the judge sufficiently directed the jury. Whether the jury believed CA was a matter for them. It follows that grounds 2 and 3 fail; two grounds remain. (4) "Good character"[70]Ground 4 is that the judge failed to give a good adequate character direction. The judge gave the standard good character direction, as recommended in the Judicial Studies Board Guidelines. Mr Barlow submits that that is not sufficient in a case where there are historic allegations of sexual abuse. We are unable to accept this submission which, as far as we are aware, is entirely novel. The direction was, in our judgment, full and adequate and nothing more was required. (5) "Residual discretion"[71]In the case of B, although the court did not fault the trial process or indeed the summing up in any way, this court allowed the appeal and did so on the basis that it was one of those residual cases in which the court should set aside the conviction, as Lord Woolf put it in paragraph 25, "in the interests of justice." It did so on the basis that all the appellant could do was to say to the jury, "I have not done it". It is an example of what used to called a "lurking doubt".[72]It is plainly only in an exceptional case that such an approach would be appropriate, as Lord Woolf put it in paragraph 27:
"It is a jurisdiction which must be exercised in limited circumstances and with caution."
[73]We have trial by jury, not trial by judge or indeed by the Court of Appeal. In paragraph 26 of B, Lord Woolf said this:
"26.One thing is clear: the jury saw the witnesses and we have not. Therefore they were in a better position to judge where the truth lay than this court. Furthermore, the trial process depends upon our confidence in the jury system. We have to have confidence that they made the appropriate allowance here for delay, and we also have to have in mind the intervention of Parliament. Parliament made the decision as to where they considered the right balance between the prosecution and the defence should lie in regard to the question of corroboration. We must not seek to go behind the decision of Parliament. Therefore juries in cases of this sort must be left with the difficult task of determining where the truth lies."
[74]In the instant case, we have identified a number of respects in which the appellant was able to challenge the complainant's credibility. This is not a case in which the appellant could only say by way of defence, I have not done it. There was ample material against which the jury was able to test CA's credibility and in the end they believed her. This is not, in our judgment, one of those cases in which this court could properly interfere with their decision.[75]It follows, as disappointing as this must be for the appellant, that the appeal must be dismissed.