Neutral Citation Number: [2011] EWCA Crim 3079
Case No: 2011/2902/C1
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Thursday, 8 December 2011
 
B e f o r e:
 
LORD JUSTICE LAWS 
MR JUSTICE OWEN 
MR JUSTICE HADDON‑CAVE 
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R E G I N A 

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 Non‑Counsel Application  
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 J U D G M E N T 

1.	MR JUSTICE OWEN:  On 28th April 2011 the applicant, now 72 years of age, was convicted by a majority verdict of an offence of rape at the Crown Court at Derby.  He renews his application for leave to appeal against conviction following refusal by the single judge.  
2.	The applicant's conviction was on a retrial, his previous conviction on two counts of rape having been quashed by this court on 15th December 2010.  
3.	This was a case of historic sex abuse, it being alleged that between 7th March 1969 and 6th December 1971 the applicant raped his stepdaughter, then aged 11 or 12.  The complainant had not made any complaint of rape until 1997, some 26 years after the event.  The applicant denied the offence.  He now seeks leave to appeal on the following grounds:  
"The indictment should have been stayed as an abuse of process.  The applicant could not receive a fair trial because of the delay in the initial reporting of the allegation and the manner in which the case proceeded thereafter.  
The delay was 42 years and there was no evidence capable of corroborating the complainant.  It was not possible to explore the reasons for the delay or to examine the complainant about alleged collusion with her sister before the jury because it would have revealed the fact that the applicant had been tried and acquitted of sexual offences against the complainant's sister and niece."
4.	In the course of the trial, counsel for the applicant made an application for the indictment to be stayed as an abuse.  The trial judge, His Honour Judge Burgess, the Honorary Recorder of Derby, in a careful and well‑reasoned ruling rejected the application, concluding that he was satisfied that the defendant could have a fair trial and indicating in the course of the ruling that he would direct the jury as to the manner in which they should approach the question of delay.  It is to be noted that the same application had been made in the first trial and had also been rejected.
5.	In the course of his summing‑up (see transcript page 6C to 7G) the learned judge gave a clear and careful direction to the jury, warning them of the effect that delay may have on memory and that they should make due allowance for the fact that the defendant might have extra difficulty in answering such an allegation after such a length of time.  
6.	In our judgment, the grounds that the applicant seeks to advance have no prospect of success.  As the learned single judge, Butterfield J, said in refusing leave: 
"The issue of delay was clearly before the Court of Appeal Criminal Division when they ordered a retrial.  This was obviously a long delay between the dates of the allegations and the date of trial.  That said, you have never identified any specific prejudice which arises from that delay.  The trial judge was fully entitled to conclude in the exercise of his discretion that notwithstanding the delay a fair trial was possible.  He thereafter fully and fairly directed the jury on the issue, providing you with proper safeguards and cautioning the jury about the potential general difficulties he might experience in dealing with allegations relating to matters said to have taken place many years ago.  You advance no ground on which the full court might conclude that your convictions were unsafe."  
We agree.  It follows that this application must be dismissed.