F, R v [2011] EWCA Crim 726

Case No D1/201002010

[2011] EWCA Crim 726

IN THE HIGH COURT OF JUSTICE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM WOOLWICH CROWN COURT

HIS HONOUR JUDGE SHORROCK

T20097440

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 24/03/2011

Before

LORD JUSTICE JACKSON

MR JUSTICE SILBER

THE COMMON SERJEANT, HHJ BARKER QC,

SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION

Between

ReginaRespondent

T B FAppellant

Ms Teresa Hay (instructed by Crown Prosecution Service) for Respondent

Ms Maria Dineen (instructed by Registrar of Criminal Appeals) for Appellant

Hearing Hearing date: 17 th February 2011

Judgment

Lord Justice Jackson :

[1]This judgment is in five parts, namely: Part 1. Introduction, Part 2. The Facts, Part 3. The Criminal Proceedings, Part 4. The Law, Part 5. The Appeal to the Court of Appeal.

Part 1. Introduction

[2]This is an appeal against conviction by a 62 year old man who has been convicted of committing sexual offences against his step-daughter and daughter between 30 and 40 years ago.

[3]This appeal raises the familiar but intractable problem of when justice requires proceedings to be stayed in cases of historic sexual abuse. This problem is a sensitive one, because the criminal justice system must protect the victims of sexual abuse, who often, for understandable reasons, do not make complaint for many years. The criminal justice system must also protect defendants from facing a jury and possible conviction in circumstances where a fair trial is no longer possible.

[4]After these introductory remarks, we must now turn to the facts of the present case.

Part 2. The Facts

[5]In 1969 the appellant married P H. P H had a daughter called K, born on 8th September 1967, who became the appellant’s step-daughter. The next child of the family was A, who was born on 19th October 1969. A was the daughter of the appellant and P H and, therefore, the half sister of K. The appellant and P H had two more children after that, K born on 20th January 1971 and P born on 24th July 1974.

[6]K lived in the family home until 1975. When K reached the age of 8 she went to live with her grandmother. A lived in the family home until 1983. At the age of 14 A was placed into care. In 1984 the appellant left the family home and went to live with a woman who subsequently became his second wife, Mrs G F.

[7]Many years later, when they were both married with children of their own, K and A made complaints to the police about serious sexual offences committed by the appellant. It was in 2008 that A, whose name is now A P, went to the police about these matters. The police then contacted K, whose name is now K F. K F then made similar allegations against the appellant.

[8]In essence each of the two half sisters was alleging that the appellant had committed a series of sexual assaults upon them, starting when they were very young and culminating in sexual intercourse.

[9]The police arrested and interviewed the appellant, who denied all allegations. Those denials were not accepted. Criminal proceedings then followed.

Part 3. The Criminal Proceedings

[10]The appellant was charged on an indictment containing thirteen counts. Counts 1 to 4 were allegations of indecent assault against K. Count 1 alleged that the appellant had touched K’s vagina while she sat on his lap at her grandmother’s house when she was about 2 or 3. Count 2 alleged that the appellant had rubbed his penis between her legs while she was in bed with him and her mother when she was probably aged 4 or 5. Count 3 alleged that the appellant had touched K’s vagina while bathing her when she was about 4 or 5 years old. Count 4 alleged that the appellant had forced K to perform oral sex on him while she was seated on the lavatory, when she was aged 4 to 6. Count 5 was a specimen count of rape said to have occurred when K was 12 years old during a period when her grandmother was in hospital. Count 6 was a specific allegation of rape said to have occurred in the living room when K was aged 12 or 13, during the same period when her grandmother was in hospital. Count 7 was a specimen count of indecency with a child reflecting K’s allegation that the appellant had forced her to masturbate him when she was about 13 years old, again during the period when her grandmother was in hospital.

[11]Counts 8 and 9 were allegations of specific indecent assaults against A. Count 8 alleged that the appellant had touched A’s vagina while she was in bed with him, her mother and brother during a thunderstorm when she was aged 4 or 5. Count 9 alleged that the appellant had put his hand up A’s skirt and touched her over her knickers while she was standing on the cellar stairs at her grandmother’s house, when she was aged between 4 and 6. Count 10 was a specific allegation of rape when A was aged 7, which was said to have occurred in the living room while her mother was out working. Count 11 was a specimen count of sexual intercourse with a girl under 13, reflecting A’s allegation that from the age of about 7 to 11, the appellant had sexual intercourse with her in the living room more than ten times. Count 12 was a specimen count of buggery arising from A’s allegation that the appellant had anal sex with her two or three times when she was aged 8 or 9. Count 13 was a specimen count of indecency with a child, reflecting A’s allegation that the appellant had forced her to masturbate him. She could not give her age at the time.

[12]The appellant pleaded not guilty to all counts. He stood trial at Woolwich Crown Court in March 2010 before Judge Shorrock and a jury. Both K and A gave evidence in support of their allegations. P H, who was the mother of both K and A, gave evidence for the prosecution. Ms H said that anal sex had never been a part of her sex life with the appellant. Between 1980 and 1985 she worked at the Twilights nightclub in the evenings. In relation to count 7, she walked into the living room unannounced. She saw K and the appellant sitting next to each other and K was masturbating him. This was in June or July 1980. K shot out of the room. Ms H was horrified. The appellant admitted to what he had done but said that he was drunk, that it had never happened before and would never happen again. Ms H did not accept that he was drunk. She spoke to K in her bedroom and asked her whether anything like that had ever happened before. K said “no, mummy, no”. Ms H was going to call the police but did not do so, partly because the appellant begged her not to and partly because of the advice her brother gave her. Ms H’s brother did not give evidence at the trial. However, the jury were informed that the brother had been contacted and was unable to recall Ms H contacting him regarding this incident.

[13]K F’s husband, I F, gave evidence. He said that K told him about the sexual abuse in early 1992. Also, a friend of A P called T H gave evidence about complaints of sexual abuse which A used to make sometime before the police were involved.

[14]The appellant gave evidence firmly denying all the allegations. He said that A had come to stay with him and G at Christmas 1984, when they enjoyed a normal father/daughter relationship. The appellant said that many of the incidents could not have happened. For example, he could not have committed the alleged indecent assaults in the grandmother’s house without being seen. This was because of the layout of the house. Also, he said that he was often away from home in connection with his work or in connection with his hobby, which was banger racing.

[15]The appellant called four further defence witnesses. G F, the appellant’s wife, gave evidence that she had never seen the appellant behaving inappropriately towards young girls. He certainly never interfered with her daughter. She trusted the appellant with her own children and had no reason to suspect him of anything untoward. She confirmed the appellant’s evidence that when A visited them for Christmas in 1984 she behaved towards the appellant in a way that someone who had been abused would not have done. She also confirmed that thereafter they saw A regularly.

[16]K F, the appellant’s son, gave evidence that he did not recall ever seeing the appellant behaving inappropriately towards K. He never got the impression that she felt uncomfortable in his presence. He trusted the appellant with his own children and had no reason to suspect him of anything untoward.

[17]P S, the appellants’ daughter, gave evidence that she was never abused by him. She also went to live with her grandmother when she was 13 or 14, not to escape the appellant but because her grandmother was house bound. She did not recall ever seeing the appellant behaving inappropriately towards K when she was younger. She never got the impression that K felt uncomfortable in his presence. She trusted him with her own children and had no reason to suspect him of anything untoward.

[18]S L, G F’s daughter, gave evidence that she had never seen the appellant behaving inappropriately towards young girls. He certainly never interfered with her. She confirmed that when A visited them for Christmas in 1984, she behaved towards the appellant in a way that someone who had been abused would not have done. She, S L, trusted him with her own children and had no reason to suspect the appellant of anything untoward.

[19]Both prosecution and defence witnesses gave evidence about an incident in 1984 after the appellant had gone to live with G F. On this occasion P H and K visited the appellant and accused him of having molested K. The appellant denied the allegation of molestation. The appellant asserts that he reported this incident to the police and sought their help in preventing P and K from making unfounded allegations against him. At the time of the trial no police records existed either to confirm or to contradict this assertion.

[20]At the end of the evidence the appellant applied to the judge to stay the proceedings on the grounds that, after such a long period of delay, a fair trial was not possible. The judge accepted that the long period of delay caused difficulties for the appellant. For example, the grandmother was no longer alive to confirm or contradict what the appellant said about the layout of her house. Also, independent evidence about the appellant’s whereabouts at relevant times could no longer be obtained. Also there was no medical evidence to support or contradict the complainants’ evidence. On the other hand the judge considered that he could compensate for all these matters by giving appropriate directions to the jury in his summing up. Accordingly the judge rejected the application for a stay.

[21]Following that ruling, counsel delivered their closing speeches. The judge then summed the case up. In due course the jury returned unanimous verdicts, finding the appellant guilty on all thirteen counts. The appellant was sentenced to 14 years imprisonment.

[22]The appellant was aggrieved by his conviction and now appeals to the Court of Appeal on two grounds: i) The proceedings ought to have been stayed because of the long delay between the alleged offences and the date of trial. ii) There were defects in the summing up.

[23]Before addressing these two grounds of appeal, we must first review the relevant law.

Part 4. The Law

[24]The Crown Court has always had the inherent power to stay criminal proceedings on the grounds of abuse of process. One instance of abuse of process is the bringing of a prosecution so long after the events in issue that a fair trial has become impossible.

[25]In R v J.A.K [1992] Crim LR 30, K was charged with having raped his younger sister twenty years previously, when the sister was aged 11 or 12. Ognall J ruled that the test was whether a fair trial was possible. He held that in the instant case the period of delay combined with the absence of any evidence capable of corroborating the complaint led to the inference that a fair trial would be impossible. Accordingly, the judge stayed the proceedings. In his commentary on this decision Professor Smith noted that whether a fair trial was possible depended on the circumstances of the case. He also noted a possible inconsistency between earlier decisions and observed that this was a question on which experienced judges might form different opinions.

[26]In R v Jenkins [1998] Crim LR 411 the appellant was convicted in 1997 of four counts of indecent assault on a female, one count of attempted rape and one of attempted buggery. He was alleged to have committed specific offences against S and J (who were sisters) between 1963 and 1967, and against C and M (who were also sisters) between 1981 and 1985. S, who was 36 at trial, said that her memory was poor for the first ten years of her life and she remembered the incidents only after counselling in 1995. J, who was 35 at trial, said that she made no complaint until 1995 and at first only supported aspects of S’s account without making any allegations herself. The judge declined to order a stay. The Court of Appeal allowed the appellant’s appeal against conviction. The court said that the judge had discretion and the court would not interfere with the exercise of it, even where the members of the court would have exercised the discretion differently, unless the judge erred in principle or there was no material on which he could properly have arrived at his decision. However, the delay in the counts regarding S and J was exceptional and it was not a case where offences occurred over many years, nor where the complainants shared a home with the appellant. There were many unexplained delays, inconsistencies and instances of “improved memory” and some evidence of “contamination” in relation to J’s evidence. It was difficult for S and J (or the appellant) to recall precise details of events over thirty years ago, and the delay accordingly caused prejudice to the appellant in putting his defence. The convictions involving S and J were not safe. The other convictions were tainted, because evidence of the earlier incidents was led in support of them, so those convictions too were quashed.

[27]In R v B

[2003] EWCA (Crim) 319

;

[2003] 2 Cr App R 13

the appellant stood trial for sexually abusing his step-daughter between September 1968 and September 1972. In January 2002 an application was made before the start of trial that the proceedings should be stayed as an abuse of process by reason of delay. The judge refused the application. The appellant appealed on the ground that the evidence relied on was unreliable and unsupported by any independent evidence. The Court of Appeal allowed the appellant’s appeal and quashed the conviction. Lord Woolf CJ, giving the judgment of the court, said that the judge’s ruling, in which he refused to grant a stay, could not be faulted. However, such applications should not normally be made before the start of the trial. The best time to assess whether the process should be stayed on the grounds of delay is at the end of the trial when all the evidence has been called.

[28]In that case the appellant was severely prejudiced by the delay. The complainant’s mother had died. She might have been able to give useful evidence. The public house in which the mother had worked no longer existed. The appellant’s work records no longer existed. Those records might have enabled him to prove that he was away from home when certain of the incidents were alleged to have occurred. Lord Woolf pointed out that at the end of the day the issue boiled down to who the jury believed. At paragraph 28 Lord Woolf said this:

“In this case it has to be recognised that because of the delay that occurred, in our judgment the appellant was put in an impossible position to defend himself. He was not, as Mr Jenkins [defence counsel] says with force, able to conduct any proper cross examination of the complainant. There was no material he could put to the complainant to suggest that she had said that something had happened on one occasion which could be established to be incorrect. There was no material in the form of notes that were given to the doctors which showed that she had changed her account. All that the appellant could do was to say that he had not committed the acts alleged against him. Mr Jenkins says that to say to a jury, when faced with allegations of the sort that were made here, ‘I have not done it’ is virtually no defence at all.”

In all the circumstances of that case this court concluded that the appellant’s conviction was unsafe.

[29]In R v Smolinski

[2004] 2 Cr App R 40

the appellant was charged, inter alia, with offences of indecent assault upon two females aged six and seven. The offences were first reported to the police some 20 years later. The appellant denied that he had been guilty of the conduct alleged. An application was made on his behalf to stay the proceedings for abuse of process. The submission was made that he could not receive a fair trial as a result of delay and that he would be prejudiced by lack of memory because of the time that had elapsed. The trial judge came to the conclusion that on the balance of probabilities it had not been shown that a fair trial was impossible. The appellant was convicted by a majority verdict of 10 to 2 on count 1, but the jury were unable to reach a verdict on counts 2 to 4, which were ordered to remain on the file. The appellant appealed. The Court of Appeal quashed the appellant’s conviction. Lord Woolf CJ, giving the judgment of the court, again stressed that in cases such as this applications to stay for abuse of process should not generally be made before trial. At paragraph 9 Lord Woolf said this:

“If an application is to be made to a judge, the best time for doing so is after any evidence has been called. That means that on the one hand the court has had an opportunity of seeing the witnesses, and, on the other hand the complainants have had to go through the ordeal of giving evidence. However, despite the latter point, which obviously is one of importance, it seems to us that on the whole it is preferable for the evidence to be called and for a judge then to make his decision as to whether the trial should proceed or whether the evidence is such that it would not be safe for a jury to convict. That is a particularly helpful course if there is a danger of inconsistencies between the witnesses - - inconsistencies of the sort that it is common ground occurred here.”

[30]Lord Woolf went on to note some discrepancies in the evidence. He also noted that one complainant had been believed by the jury and the other complainant had not been believed, even though they were both making similar allegations. In explaining the court’s conclusion at the end of his judgment, Lord Woolf said this:

“11. ….We do not think it is right for this court to lay down the principle that because of the period which has elapsed (twenty years) when the complainant has given a reason for the delay, it is inevitably the case that the convictions will be unsafe. However, where there has been a long period of delay such as existed in this case, and where the complainants are young, as they were here (6 and 7 respectively at the time matters happened), this court should scrutinise convictions with particular care. Likewise, we consider that trial judges should scrutinise the evidence with particular care and come to a conclusion whether or not it is safe for the matter to be left to the jury. 12. In this case, looking at the matter as a whole, bearing in mind there are discrepancies, bearing in mind that the elder sister, until reminded by her younger sister, was apparently oblivious of what was alleged to have happened earlier, bearing in mind the conclusion which the jury came to on the first count but were unable to come to the same conclusion on the second count, that this is a case where the conviction is unsafe. Accordingly, we will therefore allow the appeal.”

[31]In R v Joynson

[2008] EWCA Crim 3049

the appellant was charged with fourteen sexual offences (12 indecent assaults and 2 counts of buggery) committed approximately 35 years previously at a boarding school where he was working as a house parent. The five complainants were former pupils at the school. At the end of the evidence the defence applied for a stay on the basis that the long period of delay and the absence of school records made a fair trial impossible. The trial judge rejected that application and in due course the jury found the appellant guilty on all counts.

[32]This court, comprising Lord Judge CJ, Toulson LJ and Maddison J quashed the appellant’s conviction. Toulson LJ, giving the judgment of the court, identified the various aspects of prejudice caused to the appellant. He said that the next step was to consider whether the safeguards provided by the trial process were such that the convictions may be regarded as safe. He then went on to analyse the protection afforded by those safeguards in this way:

“32. We turn to consider the adequacy of the safeguards, doing so again in the context of the particular facts of this case. Mr Gosling has referred us to the protections inherent in the trial system. One safeguard was the ability of Mr Barlow to cross-examine the complainants and other witnesses, to which the judge referred. However, the effectiveness of any cross-examination must be dependent on the material to be deployed. In one case there may be ample other material and the significance of missing material may therefore be small. In another case the absence of material which previously existed may be critical. 33. In relation to PF, the defence, as Mr Gosling has rightly submitted, had available to it the contradiction between PF and his mother. It also had the evidence of the appellant himself that he had left the school before DC arrived. In relation to those issues the jury was left with the word of one witness against another. They lacked contemporaneous evidence which would have settled those points. There was no objective evidence to show that PF was wrong. Without that material the effectiveness of any cross-examination was bound to be reduced. 34. We also find it difficult in this case to see how the specific prejudice which we have identified could be nullified or made practically harmless by a “strong direction”

. A jury could be warned - - and indeed this jury was properly warned - - to consider with special care the risk of memories becoming unreliable through passage of time, but, as the judge also correctly directed them, the jury had to decide the case on the evidence. No general warning could in this case be a substitute for the documents which were missing. 35. This court is always slow to allow an appeal against a conviction where the case has been handled with care by an experienced judge and the jury has reached its conclusions of fact after hearing all the witnesses. Nevertheless, we must stand back from the case and ask ourselves whether we regard the convictions as safe. The case as presented to us may be a little different from the way it was presented to the judge when he read the skeleton arguments which were before him, but we are troubled by the very great delay and its particular consequences in the context of the specific allegations in this case. We have reached the conclusion that we cannot regard these convictions as safe.”

[33]In R v MacKreth (deceased)

[2009] EWCA Crim 1849

the appellant was convicted on 23 counts of indecent assault and 10 counts of rape, all committed between 23 and 27 years before trial. During the relevant period the appellant had been in charge of a residential care home for teenage girls who were in some sort of trouble. The trial judge rejected the appellant’s application for a stay on the grounds of abuse of process at the start of the trial. This court approved the judge’s rejection of the stay application and upheld the appellant’s conviction.

[34]Rix LJ, giving the judgment of the court, noted that the principles for dealing with stay applications had not changed over the last decade. However, the courts were now astute to pay real and not mere lip service to a concern to do justice in such cases. Those principles were as follows. First, it is for the defence to prove, on the balance of probabilities, that the continuation of the proceedings would amount to an abuse of process. Secondly, stays of proceedings in such circumstances should be the exception rather than the rule. Where the application for a stay is based on delay, a stay should be an exception rather than the rule even if the delay could be said to be unjustifiable. Still more rarely should a stay be imposed in the absence of any fault on the part of the complainant. Thirdly, the judge considering an application to stay of this kind may have regard to his powers to exclude evidence, to give appropriate directions to the jury about delay, and in particular to give directions to the jury about the difficulties which the delay has presented to the defence. Fourthly, the judge may also take into account the extent to which the prosecution case depends on contemporaneous documents. The more it does so, the more difficult it will be for a defendant to establish that an indictment should be stayed. Fifthly, where a delay results from the reticence of an alleged victim in reporting an allegation of sexual abuse, one is entitled to adopt an understanding attitude towards the difficulties that can be encountered by such witnesses in making complaints. Sixthly, as long as a fair trial can be held, it is in the public interest that cases such as this should be tried. Seventhly, a judge may stay the whole indictment or individual counts of an indictment.

[35]The court noted that in the instant case extensive records relating to the care home survived, as listed in paragraph 45 of the judgment. As to the documents which were missing, the appellant’s counsel was unable to point to any specific way in which those would have assisted the defence, apart from putting forward pure speculation. After a careful scrutiny of the circumstances of this particular case the Court of Appeal concluded that the appellant’s conviction was safe.

[36]In R v Hereworth

[2011] EWCA Crim 74

this court applied the principles stated in MacKreth in upholding the appellant's conviction for sexual offences against children some 25 years after the events in question.

[37]From this review of authority we derive the following five propositions in relation to criminal prosecutions brought after a long delay: i) The court should stay proceedings on some or all counts of the indictment for abuse of process if, and only if, it is satisfied on balance of probabilities that by reason of delay a fair trial is not possible on those counts. ii) It is now recognised that usually the proper time for the defence to make such an application and for the judge to rule upon it is at trial, after all the evidence has been called. iii) In assessing what prejudice has been caused to the defendant on any particular count by reason of delay, the court should consider what evidence directly relevant to the defence case has been lost through the passage of time. Vague speculation that lost documents or deceased witnesses might have assisted the defendant is not helpful. The court should also consider what evidence has survived the passage of time. The court should then examine critically how important the missing evidence is in the context of the case as a whole. iv) Having identified the prejudice caused to the defence by reason of the delay, it is then necessary to consider to what extent the judge can compensate for that prejudice by emphasising guidance given in standard directions or formulating special directions to the jury. Where important independent evidence has been lost over time, it may not be known which party that evidence would have supported. There may be cases in which no direction to the jury can dispel the resultant prejudice which one or other of the parties must suffer, but this depends on the facts of the case. v) If the complainant’s delay in coming forward is unjustified, that 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.

[38]Some of the reported decisions contain statements to the effect that a stay on grounds of delay will only succeed in rare cases. This statement is no doubt true, because the prosecution will be scrupulous in weeding out cases that are vulnerable to abuse applications. The prosecution generally will not put the complainants in such cases through the unnecessary ordeal of giving evidence. However, the statement that stay applications only rarely succeed is of limited help in any individual case. As Rix LJ observed in MacKreth, “since about 2000 the courts have been astute to pay real and not mere lip service to a concern to do justice in such cases”. This concern is evidenced by the Court of Appeal decisions in B, Smolinski and Joynson.

[39]There are also references in the reported decisions to the judge’s power to compensate for delay by excluding evidence. This is a power which should be borne in mind during the course of the trial and the judge should exclude any evidence which would render the trial unfair. However, if the stay application is made near the end of the trial, by that stage all decisions on admitting or excluding evidence will have been made.

[40]This completes our review of the authorities cited by counsel. We must now turn to the appeal in the present case.

Part 5. The Appeal to the Court of Appeal

[41]The principal ground of appeal is that the judge erred in failing to stay the criminal proceedings at the end of the evidence. In addition, as a subsidiary ground of appeal, the appellant makes certain criticisms of the summing up. It is not necessary, however, to deal with that subsidiary ground.

[42]In support of the main ground of appeal Miss Maria Dineen, for the appellant, points to the massive time lag between the events in issue and the trial. The alleged offences against K occurred between 30 and 40 years ago. The alleged offences against A occurred between 30 and 37 years ago. Ms Dineen further submits that the delay in this case was unjustified and it has seriously prejudiced the appellant’s defence. All witnesses had considerable difficulty in recalling events of the 1970s.

[43]We accept that the delay here is unusually long, even in the context of cases concerning historic sexual abuse. Both the complainants and the appellant had considerable difficulty in recollecting events between 1971 and 1981. This inevitably affected the reliability of their evidence.

[44]As a result of the passage of time much of the evidence upon which the appellant would have relied was no longer available. The appellant could not call the grandmother to say that she had seen nothing untoward. Nor was it possible to adduce any evidence about the layout of grandmothers' house, a matter upon which the appellant placed some relIce. The appellant’s work records would also have been important evidence, as the appellant contended that he was away from home for much of the time during the relevant period.

[45]There was controversy at trial as to when the grandmother was in hospital. These dates were important, as K returned to live at home when her grandmother was in hospital and K alleged that the appellant raped her during this period. Unfortunately the hospital records relating to the grandmother no longer existed.

[46]In many cases of historic sexual abuse there is justification for the delay in bringing criminal proceedings. That is not so, however, in this case. It is common ground between prosecution and defence that in 1984, some 27 years ago, K and her mother visited the appellant for a doorstep confrontation. On that occasion they accused the appellant of having molested K. No good reason has been put forward why K’s complaints were not reported to the police in or soon after 1984. That would inevitably have led to the police interviewing A, who was then in care.

[47]Ms Teresa Hay for the prosecution points out that there was corroboration for count 7, in that P H gave evidence that she saw K masturbating the appellant on the occasion in question. The judge directed the jury that if they found count 7 proved, that could constitute evidence of propensity which the jury may take into account when considering the other 12 counts in that indictment. There is no criticism of that direction.

[48]We were initially inclined to view P H’s evidence on count 7 as a powerful factor in the prosecution’s favour, even though the law no longer requires corroboration in sexual cases. However, we have come to the conclusion that the existence of this evidence does not support the prosecution contention that a fair trial was possible after such lengthy delay. First, the defence case was that P H and the complainants had colluded. They were all motivated by malice because the appellant had walked out in 1984 and gone to live with another woman. In this regard it should be noted that the judge recognised the possibility of collusion between the two complainants and directed the jury to consider the evidence of each complainant quite separately: see pages 19 and 20 of the summing up. Secondly, there were many inconsistencies between the evidence given by P H and by K F concerning count 7, for example when the incident happened, what was said afterwards and so forth. Thirdly, P H states that she discussed the incident with her brother and took his advice about what to do. Ms H’s brother has no recollection of any such conversation.

[49]In our view this was a case, like Joynson, in which no direction given by the judge to the jury could compensate the appellant for the prejudice suffered by reason of the long delay. Also it was a case, like B, in which the long delay had left the appellant’s counsel with no material to use in cross-examination. Essentially, the jury were left with the complainants’ evidence that the offences occurred and the appellant’s denial of the allegations. The difficulties which the appellant faced in this case were similar to those described by Lord Woolf CJ in paragraph 28 of B. Ms Hay conceded that that was a very difficult paragraph for the prosecution on this appeal.

[50]We have carefully considered all the circumstances of this case in the light of the guidance given by the Court of Appeal in the earlier cases summarised in Part 4 above. We do not lightly interfere with the decision of the trial judge in his consideration of the stay application. However, we have come to the conclusion that his decision was wrong. The long delay in this case before commencement of the criminal proceedings had the consequence that a fair trial was no longer possible. For all of these reasons we allow the appellant’s appeal and quash his conviction on all counts on the indictment.