Case No: 201106412 D4
Neutral Citation Number: [2012] EWCA Crim 791
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT TRURO
HIS HONOUR JUDGE ELWEN
T20100201
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 25/04/2012
Before :

LORD JUSTICE RIX
MR JUSTICE COULSON
and
MR JUSTICE HADDON-CAVE
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Between :

	REGINA	Respondent	
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	E	Appellant	

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Mr J Ticehurst (instructed by Walters and Barbary Solicitors) for the Appellant
Mr J Barnes (instructed by CPS Special Crime Division) for the Respondent

Hearing dates : Monday 2nd April 2012
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Judgment
Lord Justice Rix : 
1.	This appeal concerns a trial at which allegations of both historic and more recent abuse were made against the appellant, who is now 80. There were four complainants. The substantive ground of appeal is that the judge erred in refusing to stay the indictment, for abuse of process, on its counts 1 to 12, which concerned the first three complainants. At the hearing of this appeal, we dismissed it on this ground, reserving our reasons for doing so. This judgment contains those reasons. The persons concerned are anonymised pursuant to the Sexual Offences (Amendment) Act 1992 to protect the victims from identification.   

2.	There is also a more formal ground of appeal, that counts 5 and 6, which charged acts of gross indecency with a child under the age of 16, resulted in unlawful convictions because, at the relevant time between 1975 and 1979 when the child concerned was between 12 and 16 years old, the statutory requirement under section 1(1) of the Indecency with Children Act 1960 was that the child be under 14. The counts by error referred to the age of 16, which was introduced by amendment only in 2001. It is common ground that it is impossible to say with the necessary degree of assurance that the complainant concerned was under 14 at the times of the commission of these offences. Therefore it is necessary in any event to quash these two convictions. If, however, the appellant’s substantive ground of appeal were correct, the indictment on those two counts would have to have been stayed together with the other counts within counts 1 to 12. As it is, the quashing of these two counts does not affect the appellant’s overall sentence of seven years, since they involved concurrent sentences of only one year each. It is not submitted on the appellant’s behalf that the quashing of the appellant’s conviction on those two counts affects the overall gravamen of his offending.

3.	The four complainants were the appellant’s stepdaughter, AW; her younger half-sister LD, another stepdaughter; LD’s daughter, SD, thus the appellant’s step-granddaughter; and, fourthly, DT, who was the daughter of a friend of the appellant and was unconnected with the other complainants. AW’s complaints related to counts 1 to 8, LD’s to counts 9 and 10, SD’s to counts 11 and 12, and DT’s to counts 13 and 14.

4.	The appellant was convicted on 14 October 2011 at the Crown Court at Truro, following a trial presided over by His Honour Judge Elwen QC, on all 14 counts upon the indictment. He was sentenced to a total of 7 years imprisonment made up as follows: count 8, a specific offence of indecent assault, received a four year sentence, while counts 1 to 7 received concurrent sentences of one year each; there were then consecutive sentences of one year each in respect of one of each pair of the counts which concerned the other three complainants (while the second count of each of those pairs received concurrent sentences of 1 year each). 

5.	AW was aged 12 to 23 over the period of the allegations within counts 1 to 8, which were charged as occurring between 1975 and 1987. She had educational difficulties. She gave evidence that touching of her legs by the appellant escalated to full digital penetration and getting her to touch his penis. The abuse happened whenever the appellant had an opportunity without her sister or mother knowing, sometimes in the caravan where they lived, and sometimes out and about on walks or in his car. He told her that when she was 16, he was going to “break you in”. She pre-empted that by having a sexual relationship with another man, but the appellant continued to abuse her until, as it seems, she moved away at the age of 23 and sought help from her doctors. 

6.	AW made a statement (undated but said by a police witness to have been made in October 1999, and probably drawn up by AW’s counsellor) which was before the court, having been discovered in police files. It was the only document to come forward from that source. However, it was not a police statement and it resulted in no formal complaint. She said that the police never got back to her. In that statement she said that she had decided to make it after hearing that the appellant had “acted inappropriately” towards her niece, SD, on a visit to his step-daughter LD in London. She also said there that LD did not want SD to make a statement to the police, “as she feels that she and her child’s school have dealt with it”, but that LD would support her and also describe her own experiences. In his interview, the appellant accepted that the police had come to see him “about nine years ago” about AW’s statement and had read it to him, but had told him that she had not made a complaint and that therefore no action would be taken.

7.	Some at least of AW’s medical records were before the court. A letter dated 13 August 1992 reported that when AW was about twenty (viz in about 1983) she had told her sister (presumably LD) that she had been attacked by her stepfather and that the police had become involved: however, he had denied it, no charges were brought, her mother was not informed, and her siblings did not believe her. However, AW herself gave no evidence about a previous approach to the police, although LD did (see below).

8.	It was again the appellant’s own statement in interview that confirmed an earlier involvement of the police, although he said that it was he that had contacted them, as a result of both his stepdaughters going around accusing him of abusing AW. He had heard of them from a neighbour. He said that “when these allegations were made back…in the late 70s, I phoned the Police myself”. He said that a Newquay police superintendent and other police officers had come to see him but had assured him the allegations were “a load of bollocks. End of story”.     

9.	LD also spoke at trial of an earlier involvement of the police. Her evidence was that she was the youngest of her mother’s three children. Her mother was KH, whom the appellant had married. She was 5 years old when the appellant had moved in. She was 12/13 years old over the period with which counts 9 and 10 were concerned, namely July 1981 to July 1982. However, she also spoke of witnessing the appellant’s abuse of AW at an earlier time. He would have his hand up AW’s skirt and then say “Well done, you’ve taken this much” and show her with his fingers the extent of his digital penetration. AW had given similar evidence about what the appellant had done, but not that it was done in the presence of LD. LD spoke of one occasion on which the appellant was between AW’s legs with an erect penis, saying “Better let me do it slowly, than some bastard coming along and hurt you”. She, LD, believed that the appellant was about to rape AW, but she did not see him enter her. (AW said that the appellant had never raped her.) She said that she tried to speak to AW about what was going on, but AW would say nothing.

10.	As for the abuse to herself, LD said that the appellant had started to do this when she was 12 (the same age as the abuse to AW had begun). He started with touching her legs and in time to touching her vagina under her clothing, but never penetrated her digitally. This abuse happened frequently, but when she was 13 she “became vocal” and the police visited. In her interview she said that she had called the police, but in cross-examination she accepted that the appellant may have done so. However, AW would not support her, and the police went away. The appellant stopped abusing her, but continued with AW. 

11.	Thus it appears from a combination of LD’s evidence and the appellant’s interview that there was some involvement of the police in 1982 (the appellant put it a little earlier), but nothing came of it. 

12.	SD, the step-granddaughter, was aged from 8 to 12 over the period from January 1995 to January 2000 with which counts 11 and 12 were concerned. She gave evidence that she would stay in the school holidays with KH, her grandmother, and the appellant. When she was 8 he would put her on his lap and rub himself against her bottom. When she was 10 or 11 he would rub her breast and genital area during play-fighting: it was much more than touching and tickling, and amounted to “feeling her up”. When she was 11, in the summer holidays, (that would be in the summer of 1998) a particular play-fight ended with the appellant on top of her and undoing his trousers, just when her grandmother walked in and demanded to know what was going on. SD told her grandmother that she wanted to go home and she was allowed to ring LD who came straight down to collect her. SD said that she was too scared to give her mother any details, until about a week later. She said that LD called the police but that they said that there was not enough evidence to take matters forward.    

13.	LD also gave evidence about the matters affecting her daughter SD. LD said that when SD was about 12 or 13 she was told by SD that the appellant had touched her private parts. She had telephoned the police in Cornwall, but nothing was done. 

14.	AW’s medical records begin in April 1973, when she was referred to a child and family guidance clinic. She was then nearly ten, and suffered from anxiety. That was before the alleged abuse had begun. There is a letter from when she was 22 (about 1984/5), which speaks of her depression, but nothing is said about any abuse, although her rather poor relationship with her step-father is mentioned. A letter from her consultant psychiatrist in July 1992, when she was 29, is the first to mention abuse by the appellant, there ascribed to the period between the ages of 13 and 16. We have already mentioned the letter dated 13 August 1992 which refers to the police becoming involved because of what she had told LD about the appellant’s abuse, but also to her siblings’ disbelief. The letter states: “She now feels that the only person she can trust is her mother”. There is a further letter of November 1993 which again refers to her having recently confided in her sister (LD) “because she was worried about his proximity to her niece” (ie SD), and her being “upset that her sister did not fully believe her”. A letter dated 13 June 2000 reports that AW –

“feels supported by her mother who left her stepfather after she disclosed that he had abused her since the age of 11…She feels protected by all the members of her family to whom she has disclosed the abuse.”   

15.	A letter dated 6 July 1999 refers to LD having “taken steps to inform the police” as a result of her niece (SD) aged 12 having told LD that she had been sexually abused over a period of 12 months; and that LD was pressurising her to make a statement about her own sexual abuse but that she does not feel ready to do so. 

16.	There is no complete consistency in these records and in the evidence given by the complainants at trial. However, it would seem, so far as police involvement was concerned, that the police were contacted in about 1982 or a little before, possibly by the appellant himself, but LD also said by her; and that they were contacted a second time in about 1998 or 1999, again LD said by her, this time in connection with abuse to SD, and it seems that it was in that context that AW provided her statement to the police, ascribed to October 1999: albeit that statement said that LD did not wish her daughter to make a formal complaint. On neither occasion was there any formal complaint, nor any police action other than that described by the appellant himself. It was at any rate common ground that the police had become involved on two occasions, but that no further action had been taken. 

17.	Police records were investigated, but nothing emerged except for AW’s statement. It was suggested therefore on behalf of the appellant that police records had been lost over the years, but that is uncertain.

18.	It was the allegation emerging from the fourth complainant, DT, which led to the arrest of the appellant and his trial. She complained of abuse in the second half of 2009, when she was aged 14. The appellant was arrested in December 2009 and bailed. Police enquiries led them to the first three complainants, and their allegations were put to the appellant in his further interview in April 2010. His evidence at trial reflected that interview. He said that the complainants were lying; that AW and LD had resented him taking over as head of the household from their elder brother, and for his strict discipline; and that LD had permitted her daughter to stay with him and his wife in Cornwall. 

19.	Before the beginning of the trial there was an application to stay the indictment in respect of the counts concerned with the family complainants on the ground of abuse of process. It was submitted that the long delay had caused incurable prejudice to the appellant in circumstances where police records had been lost and the appellant’s wife had died. It was submitted that without knowing what allegations had been made to the police, and why those allegations had not been acted upon, the appellant was in an impossible situation and a fair trial was not possible. Similarly, it was submitted that the delay had made it impossible to obtain the supporting evidence of his wife, KH, who had died in 2003. All the delay in question was unnecessary, given the police involvement which had gone back to at least 1982. However, there was no submission that the police had acted in bad faith or had been guilty of bad practice. 

20.	The judge ruled against that application. In essence, he accepted the submissions of the prosecution that there was nothing exceptional about the case. Neither the delay nor the paucity of records were exceptional features of such cases. Any difficulties of the defence were not of such an exceptional nature as could not be cured by appropriate directions to the jury.

21.	On this appeal, Mr Joss Ticehurst on behalf of the appellant has addressed similar submissions to this court. He has drawn attention to the structure of the case outlined above. The abuse with which the appellant was charged took place up to 36 years before trial. Allegations had been made in the past, but they had never persuaded the police to take action. It was impossible for the appellant to have conducted his defence without knowing what those allegations had been, and why they had not been acted on. It was too easy to establish a picture of misconduct by assertion, which left the appellant with little more than denial. As it was, the prosecution case was full of inconsistencies. Thus, AW said that the abuse occurred to her when her sister was out of the way; but LD said that she had witnessed it. AW said that she had never been raped; but LD described a situation once which looked to her very much as though penile penetration was about to take place. It was uncertain whether LD had disbelieved AW, or whether AW had been unwilling to assist LD and SD. If LD had herself been abused, it was odd that she should not have supported AW, and odd too that she should have put her own daughter in harm’s way. Such inconsistencies and oddities made it all the more necessary for any prosecution to have been brought timeously before records were lost, or before a vital witness such as KH had died.

22.	Mr Ticehurst has referred us to the leading case on this jurisdiction, namely Attorney-General’s Reference (No 1 of 1990) [1990] 1 QB 630, and to two recent authorities of this court in which the circumstances in which an indictment might be stayed for abuse of process has been considered, namely R v. TBF [2011] EWCA Crim 726 and CPS v. F [2011] EWCA Crim 1844. We have also looked at R v. MacKreth [2009] EWCA Crim 1849, to which both those authorities have referred. It is clear that, as Lord Judge CJ emphasised in CPS v. F, at para 49(ii):

“An application to stay for abuse of process on the grounds of delay must be determined in accordance with Attorney-General’s Reference (N0 1) of 1990. It cannot succeed unless, exceptionally, a fair trial is no longer possible owing to prejudice to the defendant occasioned by the delay which cannot fairly be addressed in the normal trial process.”  

For these purposes the burden of proof or persuasion lies on the defendant. Lord Judge also emphasised that any question of justification for the delay is only relevant to an abuse of process argument to the extent that it may throw light on the question of prejudice (at para 49). 

23.	Moreover, as appears from MacKreth (cited at para 31 of Lord Judge’s judgment) and again from TBF (see at paras 34 and 37), the courts have developed techniques or “control mechanisms”, such as directions to the jury about the problems faced by defendants in historic abuse cases, to ensure both that the jury are made appropriately aware of such problems, so that they can take them into account, and that “real and not mere lip service to a concern to do justice in such cases” is brought to bear. In the present case, however, there is no submission that the judge failed to give adequate directions to the jury, or that he failed to show a real concern to the need to do justice. What is said in essence is that he simply erred in the result of his ruling. That must be a difficult submission, for, as Lord Judge emphasised, as has the jurisprudence in general, each case turns on its own special facts.  

24.	As for missing documentation, MacKreth at para 31(10) emphasised that “mere speculation about what missing documentation might show” does not justify a stay for abuse, contrasting other cases where there was reason to think that specific, but at trial absent, contemporaneous documents would have been decisive. Lord Justice Sullivan in TBF put this point as follows (at para 37(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 passage of time. Vague speculation that lost documents or deceased witnesses might have assisted the defendant is not helpful. This 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.” 

25.	In the present case, these principles do not, in our judgment, assist the appellant. It must be entirely speculative what documents, if any at all, were brought into existence in 1982 and/or 1999 (or thereabouts) when the police became involved in the affairs of the appellant’s family. AW’s self-prepared statement survives, and was located, but nothing else of any materiality. Although one might think that other documents would have been brought into existence, the probability is that, if they had, they would, like AW’s statement itself, have survived and been located. This is against the background that, on the appellant’s own case, it was he, and no one else, who had involved the police on the first occasion. As for the second occasion, it seems reasonably clear that ultimately none of the three family complainants was willing to make a complaint. The appellant himself says that the police took no action. In the light of the jury’s verdicts one might express surprise that that might have been so, especially where an allegation concerning the child SD was concerned: however, as AW’s own statement said, LD “does not wish my niece to make a statement to the police”. 

26.	So, we begin with mere speculation about what further, if any, documents there might have been. However, even if we suppose for the sake of argument that there were further material documents which have been lost, what did they say? That is itself mere speculation. As it was, the appellant had the advantage, which made his trial fair, of being able to argue that any allegations made to the police at those earlier times were pursued by neither the complainants nor the police: and thus were treated as unworthy of further action. 

27.	Similar considerations apply to the death of the appellant’s wife, KH. Witnesses are always liable to become unavailable, for various reasons including illness or death. In the case of KH, however, there was no reason to suppose that her evidence would have been favourable to the appellant, and much to indicate that it would have been unfavourable to him. Thus it was at about the time of the allegations concerning SD that KH left the appellant and subsequently divorced him. It is speculative to suppose that her evidence would have assisted him.

28.	In sum, no error of principle has been relied upon by Mr Ticehurst in this appeal, and no specific features of this case suggest that this was one of those exceptional cases where incurable prejudice has been caused, for which the judge’s conduct of the trial and directions to the jury cannot compensate, resulting in an unfair trial. We cannot say that the judge was wrong to consider that the appellant would be able to have a fair trial. It was for these reasons that his appeal on the substantive ground was dismissed.

29.	However, as stated above, the convictions on counts 5 and 6, together with the sentences imposed in respect of them, must be quashed for the reasons to be found at the beginning of this judgment. That, however, does not undermine or affect the other sentences handed down by the judge, or the appellant’s overall sentence of 7 years’ imprisonment. At any rate to that extent, the appellant’s appeal was allowed.