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Site last updated May 2006.

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Notes

Case Notes

Courts action when videotape evidence is destroyed 

No abuse to hold third trial after prosecutions failed 

Delay in bringing proceedings

R v Brian M

R v NORMAN JENKINS (1997)

ATTORNEY-GENERAL'S REFERENCE (No. 1 of 1990) (1992) 95 Cr.App.R. 303

R v L.P.B. 91 Cr. App.R. 359

R. v Percival (Brian)

R. v Bowley (Richard)

R. v Birchall (James)

Notes

Law

Archbold Abuse of process para 4-48
Delay in making a complaint para 4-70
Direction to the jury para 4 - 71a

Prejudice to the Defendant?

See [1995] Crim.L.R. 864
Halting Criminal Prosecutions: The Abuse of Process Doctrine Revisited

Case Notes

R v Belmarsh Magistrates' Court ex p Watts 1999 2 Cr App R 188          Jurisdiction of Magistrates Court

 Delay : R v Milliner The Times 9/7/99    R v W (Graham)  1999 2 Cr App R 201 R v G(M), 99 C L R 763  R v JK 99 CLR 740,    Flowers v The Queen 2000 1 WLR 2396,   R v Sawoniuk   2000 Cr App R 220

TUESDAY FEBRUARY 27 2001 The Times

Courts action when videotape evidence is destroyed 

QUEEN'S BENCH DIVISIONAL COURT 

Regina v Feltham Magistrates Court, Ex parte Ebrahim Mouat v Director of Public Prosecutions
Before Lord Justice Brooke and Mr Justice Morison 
Judgment February 21, 2001 

Guidance for courts considering a defendant's application to stay criminal proceedings for abuse of process on the ground that videotape evidence material to his defence had been destroyed was given. 
The Queen's Bench Divisional Court in a reserved judgment: (i) dismissed the application of Mohammed Rafiq Ebrahim for judicial review of the refusal by District Judge Stephen Day at Feltham Magistrates Court on August 31, 1999 to stay proceedings against him for common assault on the ground of abuse of process; (ii) allowed the appeal by way of case stated of Paul Alexander Mouat against the dismissal by Stafford Crown Court (Judge McEvoy and justices) on August 11, 2000 of his appeal against conviction by Burton-on-Trent Justices on June 15, 2000 for driving in excess of the speed limit, contrary to section 89 of the Road Traffic Regulation Act 1984. 

TUESDAY JANUARY 30 2001  The Times

No abuse to hold third trial after prosecutions failed 

COURT OF APPEAL/CRIMINAL DIVISION 

Regina v Henworth 
Before Lord Justice Kennedy, Mr Justice Henriques and Mr Justice Owen
Judgment January 19, 2001 

There was no principle of law that where a prosecution had failed twice, it was necessarily an abuse of process to hold a third trial. 
The Court of Appeal, Criminal Division, so held in dismissing an appeal by Frank Henworth against his conviction on September 9, 1999 at the Central Criminal Court (Judge Forrester and a jury) of murder. 

ATTORNEY-GENERAL'S REFERENCE (No. 1 of 1990) (1992) 95 Cr.App.R. 303

Lord Lane
However, we remind ourselves of the principles outlined earlier in this judgment and the observation of Lord Morris in Connelly (op. cit.) at p. 211 and p. 1304 that: ". . . generally speaking a prosecutor has as much right as a defendant to demand a verdict of a jury on an outstanding indictment, and where either demands a verdict a judge has no jurisdiction to stand in the way of it." Stays imposed on the grounds of delay or for any other reason should only be employed in exceptional circumstances. If they were to become a matter of routine, it would be only a short time before the public, understandably, viewed the process with suspicion and mistrust. We respectfully adopt the reasoning of Brennan J. in Jago v. District Court of New South Wales and Others (1989) 87 A.L.R. 577, at 592-599. In principle, therefore, even where the delay can be said to be unjustifiable, the imposition of a permanent stay should be the exception rather than the rule. Still more rare should be cases where a stay can properly be imposed in the absence of any fault on the part of the complainant or prosecution. Delay due merely to the complexity of the case or contributed to by the actions of the defendant himself should never be the foundation for a stay.

R v L.P.B. 91 Cr. App.R. 359
Where the delay is the result of reticence by the alleged victim in reporting the allegations, such delay is not uncommon and wholly understandable. Thus, it was difficult to envisage any circumstances in which it would be right for the court to conclude, in advance of hearing the complainant's evidence at trial, that a trial based on a delayed - even a very long delayed complaint - by an alleged victim of sexual abuse within the home would amount to an abuse of the court's process.

Times Law Reports 30 May 2000 CT OF APPEAL, CRIMINAL DIV
Seeking stay of trial for abuse of process
Practice Direction (Crown court: Abuse of process)
Arrangements were introduced to govern the procedure where a defendant, on trial on indictment, wished to seek a stay of proceedings on the ground of abuse of process.

Lord Bingham of Cornhill, Lord Chief Justice, so stated when sitting in the Court of Appeal, Criminal Division, with Mr Justice Morison on May 23 and handing down the following practice direction.

THE LORD CHIEF JUSTICE stated:

1 The following arrangements would take effect immediately.

2 In all cases where a defendant in the Crown court proposed to make an application to stay an indictment on the ground of abuse of process, written notice of such application had to be given to the prosecuting authority and to any co-defendant not later than 14 days before the date fixed or warned for trial ("the relevant date").

Such notice had to:

(a) give the name of the case and the indictment number;

(b) state the fixed date or the warned date as appropriate;

(c) specify the nature of the application;

(d) set out in numbered sub-paragraphs the grounds on which the application was to be made;

(e) be copied to the chief listing officer at the court centre where the case was due to be heard.

3 Any co-defendant who wished to make a like application had to give a like notice not later than seven days before the relevant date, setting out any additional grounds relied on.

4 In relation to such applications, the following automatic directions would apply:

(a) the advocate for the applicant(s) had to lodge with the court and serve on all other parties a skeleton argument in support of the application at least five clear working days before the relevant date. If reference was to be made to any document not in the existing trial documents, a paginated and indexed bundle of such documents was to be provided with the skeleton argument;

(b) the advocate for the prosecution had to lodge with the court and serve on all other parties a responsive skeleton argument at least two clear working days before the relevant date, together with a supplementary bundle if appropriate.

5 All skeleton arguments had to specify any propositions of law to be advanced (together with the authorities relied on in support, with page references to passages relied on), and where appropriate include a chronology of events and a list of dramatis personae. In all instances where reference was made to a document, the reference in the trial documents or supplementary bundle was to be given.

6 The above time limits were minimum time limits. In appropriate cases the court would order longer lead times. To that end in all cases where defence advocates were, at the time of the plea and directions hearing, considering the possibility of an abuse of process application, that had to be raised with the judge dealing with the matter who would order a different timetable if appropriate, and might wish in any event to give additional directions about the conduct of the application.

Delay itself is not sufficient to stay proceedings. The Defendant must show on a balance of probabilities that a fair trial would be impossible owing to the delay in the making of the complaint.

R v L.P.B. 91 Cr. App.R. 359
Where the delay is the result of reticence by the alleged victim in reporting the allegations, such delay is not uncommon and wholly understandable. Thus, it was difficult to envisage any circumstances in which it would be right for the court to conclude, in advance of hearing the complainant's evidence at trial, that a trial based on a delayed - even a very long delayed complaint - by an alleged victim of sexual abuse within the home would amount to an abuse of the court's process.



R v BRIAN M [2000] 1 Cr.App.R. 49
The indictment related to a period between 1972 and 1985. The appeal was dismissed. There was an appropriate direction from the Trial Judge on the issue of delay.


R v B 1996 CLR 406 The trial was in 1995 and the matters covered by the indictment related to offences which went back to the years 1973 to 1976. One count potentially went back to 1970. The Court ruled that the Trial Judge was right not to stay the proceeding on grounds of abuse of process but allowed appeal on grounds failed to direct jury on the prejudice caused to the Defendant by the delay.

"Mere lapse of time was not a reason for failing to bring B before the court. There were explanations as to why complaints were not made earlier - inhibitions on a child complaining about a parent, step-parent or close family member; immaturity and uncertainty of their position and of the criminality of the conduct; being told or believing they would not be believed; unjustified self-blame; reticence about discussing sexual matters with third parties; fear of a broken home or distress to innocent family members; corruption or fear engendered in them by the abuser.
Numerous authorities had held that it was only in exceptional cases that the judge should accede to an application such as was made here. The critical matter was whether there could be a fair trial."

R v King 1997 CLR 298
Convicted of offences said to have happened between 1964 and 1970. The delay did not make the circumstances exceptional. The Trial Judge was right not to stay the indictment on the grounds of abuse of process.

Defendant cannot rely on his own conduct in delay.

R v Wilkson 1996 1 Cr Rep 81
The delay between the offences charged and committal for trial ranged between 28 to 17 years.
The appeal was dismissed and it was held that the defendant himself could be said to have caused the delay by making threats or promises to the victim or relying on loyalty or shame in the victim to maintain secrecy; that the overriding consideration for the trial judge as to whether or not a case should be allowed to proceed where there had been long delay, was whether it was possible to hold a fair trial. The trial judge accepted that that was the relevant principle, approached the matter judicially and could not be faulted in the exercise of his discretion to allow the case to proceed.

In H 1997 Crim LR 409 Defence wanted to rely on employment records which had been destroyed.

R v Dutton 1994 CLR 910
A delay of of 18 years. During that period a great deal had happened which would cause the defence considerable difficulties if the trial proceeded. In particular, a number of witnesses had died, the caravan site owners were both dead, as were D's mother and aunt. At the material time, he was working at the university and there was a caretaker who might have been of assistance to him in relation to what was alleged to have taken place there; he was no longer available and neither was the complainant's stepfather. The caravan had been significantly altered so that it was impossible for the defence effectively to investigate how it appeared at the time when it was being misused.

The Court of Appeal held that the Trial Judge was right to rule against staying the indictment but allowed the appeal on the grounds that the Jury should have been directed on the delay.

R v BRIAN M[2000] 1 Cr.App.R. 49
Court of Appeal (Lord Justice Rose (Vice President), MrJustice Wright and Mr Justice Kay): June 17, 1999

Allegations of sexual abuse against accused;Events occurring many years before trial;Possible prejudice to defence;Requirement for direction to the jury on the effect of the delay

The appellant was charged with a total of 12 sexual offences, involving indecent assault, rape and unlawful sexual intercourse on two girls under the age of 13 and indecent assault and aggravated buggery on a boy under the age of 16. The indictment related to a period between 1972 and 1985. There was no independent evidence. The appellant was convicted of all 12 offences. He appealed against conviction on the grounds, inter alia, that the judge's directions to the jury on the effect of the delay in bringing the prosecution were too neutral in that they failed sufficiently to emphasise the disability to the defence arising from the delay. Reliance was placed on Percival, The Times, July 20, 1998.

Held, dismissing the appeal, that there had been no attempt in Percival to lay down principles of general application in relation to how judges should sum up in cases of delay; that in this area, as in so many others, prescription by the Court of Appeal as to the precise terms of a summing-up was best avoided; and that, accordingly, trial judges should tailor their directions to the circumstances of a particular case; the precise terms of the warning as to the impact that the delay might have had on the memories of witnesses and as to the difficulties which might have resulted for the defence could be left to the good sense of trial judges with appropriate help and guidance from the Judicial Studies Board. Where the evidence was cogent, such a warning might not be necessary and its absence would not necessarily render a conviction unsafe, particularly when counsel's submissions at trial had not highlighted any specific risk of prejudice. The judge's directions in this case had been properly tailored to the circumstances and, accordingly, there was no reason to regard the appellant's convictions as unsafe.

Lloyd, November 30, 1998, (unreported) applied; Henry H [1998] 2 Cr.App.R. 161 considered.

R v NORMAN JENKINS (1997)
CA (Mantell LJ, Hooper J, The Recorder of Sheffield) 18/12/97

An appeal against conviction succeeded where a judge had misdirected himself as to the extent of the prejudice caused by delay in both bringing the matter to trial, and the first mention of the evidence of one of the complainants.

An appeal against a conviction on 17 January 1997 at Stoke Crown Court. The prosecution's case was that the appellant was involved in two separate groups of offences connected by similar facts. All counts were specimens. Counts one and two were allegations of indecent assault on two sisters committed on separate occasions between 1963 and 1967; and counts four to seven likewise on two other sisters between 1981 and 1985. All of the complainants were pre-pubescent girls at the time of the alleged offences, which were said to have occured at the appellant's house. Before the trial started the judge refused applications to sever counts one and two from the indictment or alternatively to quash them as an abuse of process. The appellant was convicted on four counts of indecent assault on a female, one count of attempted rape and one count of attempted buggery for which he received a total of five years imprisonment. He was acquitted of counts of attempted rape, and inciting a child to commit an act of gross indecency.



HELD: (1) As between themselves counts one and two were properly joined (see Ludlow v Metropolitan Police Commissioners (1971) AC 29 HL). The question was whether the two groups of offences were properly joined in the same indictment under Rule 9 of the Indictment Rules 1971. The judge had availed himself of the principle in R v McGlinchey (1983) 78 CAR 282; though not exclusively, a nexus sufficient to justify joinder will exist if evidence of one offence would be admissible on the trial of the other. He had to consider the evidential position from the witness statements and was not wrong in refusing to sever. Although the groups of offences were properly joined, the appellant was not deprived of his argument that the first group of offences should have been stayed. (2) Bearing in mind the guidance provided by the Attorney-General's Reference No.1 of 1990 (1992) 1 QB 630 and R v McCann & Ors (1992) CAR 239, the case was an exceptional one with the allegations in counts one and two occuring between 30 and 34 years before the trial. There was an unexplained delay in the evidence in relation to count two (where the complainant had only made a statement some 15 days after her sister's in relation to count one), and it was arguable that it was inadmissible on the exceptional basis that no reasonable jury could have regarded her evidence as other than contaminated in the legal sense of the word: (see R v H (1995) 2 AC 596). This should have been taken into account in deciding whether to order a stay of counts one and two, or at least, count two. (3) The exceptional delay in the case was a a source of serious prejudice to the appellant which was incapable of cure by the trial process and directions in the summing-up. The judge misdirected himself as to the extent of the prejudice engendered by the exceptional period of delay. (4) Counts one and two should have been stayed and therefore the convictions on them were unsafe. The convictions on the other counts were also tainted because evidence on counts one and two was led in support of them.

Appeal allowed The convictions on all counts quashed.

The Times 18/12/97 : (1998) Crim LR 411

Held, allowing the appeal, that, while it was not possible to say that the judge had acted unreasonably in refusing the stay, a delay of up to 32 years was bound to pose a risk to the fairness of any criminal trial, especially where the prosecution was relying on late complaints and oral evidence. In order for a conviction sustained in such circumstances to be considered safe, the court had to be sure that the judge had put the problem of delay and its effect on the defence squarely before the jury, together with the only real remedy, that of careful regard for the burden and standard of proof. In the instant case, the judge had erred in attempting to balance the prejudice suffered by P against the problems suffered by the prosecution and its witnesses as a result of the delay. The judge had also failed, as the person charged with the duty of ensuring that there was a fair trial despite the delay, to make clear his position on the issue of delay, having merely referred to the arguments submitted by the defence and the prosecution. Accordingly, the judge's directions had to be regarded as inadequate, rendering P's convictions unsafe.
Court: (CA (Crim Div)) Court of Appeal (Criminal Division)
Judge: Holland, J.; Auld, L.J.; Judge Allen
Judgment date: June 19, 1998
Reported: (1998) 95(27) L.S.G. 25; (1998) 142 S.J.L.B. 190
Reference: Times, July 20, 1998; Independent, July 8, 1998

R. v Bowley (Richard) also known as R. v B

B appealed against conviction having been found guilty of rape, indecent assault and indecency committed against two female family members between 1970 and 1984. B submitted that the trial judge had erred in permitting the trial to proceed contrary to a defence application for the matter to be stayed as an abuse of process and that the summing up had failed to give appropriate jury directions given the delay and consequent evidential difficulties.
Held, allowing the appeal, that (1) the decision to proceed with the trial was correctly made in that the public interest required that such offences should be prosecuted despite the considerable lapse of time involved. Cogent explanations existed for the delay and it was only in exceptional cases that an application for a stay on grounds of delay should succeed. However, where such delay arose, the trial judge should address the possible adverse affects caused by a delay in his summing up, Attorney General's Reference (No.1 of 1990) (1992) 95 Cr. App. R. 296 , R. v Dutton [1994] Crim. L.R. 911 , R. v Birchall Times, March 23, 1995 and R. v Egan (Unreported, 1995) considered. Each case concerned with delay had to be considered in the light of its own facts, the length of time involved and the reasons for the delay. However, the trial judge failed to direct the jury on the issue of delay and difficulties caused by the delay. Such failure could have led the jury to believe that the delay was immaterial and to be disregarded and (2) the judge had made no reference to B's previous good character to his credit as a witness, which was a relevant consideration for the jury to take into account in deciding whether to believe his evidence, or the weight it should be accorded against that of the complainants.
Court: (CA (Crim Div)) Court of Appeal (Criminal Division)
Judge: Hobhouse, L.J.; Butterfield, J.; Laws, J.
Judgment date: January 22, 1996
Reported: [1996] Crim. L.R. 406

R. v Birchall (James)
B appealed against conviction in respect of two counts of indecent assault and four counts of rape. He was sentenced to a total of eight years' imprisonment. The alleged offences occurred between 1973 and 1977, beginning when the complainant was 10 years old and the Crown's case depended entirely on her uncorroborated evidence. Prior to the trial, the defence sought to stay the indictment on grounds of abuse of process, that the defendant could not have a fair trial and it would be difficult to mount a defence given the age of the complainant and the vagueness of the allegations. The trial judge ruled against a stay. It was submitted that the trial judge's ruling was wrong. Furthermore, the trial judge failed to give any or any adequate direction to the jury to take account of the possible prejudice to B of the delay in bringing of proceedings and the adverse effect on his defence arising from the delay, R. v Dutton [1994] Crim. L.R. 910 .