Leslie B, R. v

LADY JUSTICE HALLETT: On 23rd November 2005 at a retrial in the Norwich Crown Court before His Honour Judge Downes, the 73-year-old appellant was convicted of eight counts of rape and three counts of cruelty to a person under the age of 16. He was sentenced to a total term of 11 years' imprisonment. He appeals against conviction with the leave of the single judge.

The factual background is as follows. In September 2004 the 45-year-old complainant, PW, contacted the police in Norfolk and made allegations against her father, the appellant, of sexual abuse and cruelty during her childhood. She said that she had been involved in a serious car accident in November 2003 which made her realise that in the event of her death her father would escape justice for his crimes. Although she had not seen her father for some 22 years, she had decided to confront him, which she did in August 2004 whilst he was living with his second wife, AB.

It was the prosecution case that in the years between 1968 and 1969 the appellant had raped PW when she was nine years old and had then continued to rape her at regular intervals until she was 15 in 1974. It was also alleged that he had committed buggery upon her when she was nine years old, but the appellant was acquitted of this count. The Crown also alleged that the appellant was a violent man who had terrified his wife and all his children and had inflicted physical and emotional cruelty on PW and two of her sisters, SR and RW, throughout their childhoods during the period 1963 to 1980.

In summary, the appellant denied all the allegations and maintained that he had never abused any of his children either sexually, physically or emotionally. He admitted that the children were probably frightened of him because he would shout at his wife. But he insisted there was a strong bond between him and his family and he loved his children. He said he would only smack them on the legs occasionally and then only if they were naughty.

He admitted he had once raised his fist to his wife but had said he had never hit her. He told the police that his temper was not easily brought to the surface. He maintained he was a passive man who could keep his temper under control.

Unusually in a case of this kind the appellant was in a position to call the other three children of the family, two sons and a daughter, L, who said that they had never been physically or sexually abused by their father and they had never witnessed any such abuse whilst living at home.

Before the start of the first trial, which was before His Honour Judge Jacob, an application had been made to stay proceedings as an abuse of process. The application was made on the basis of the very substantial delay, in the order of 30 or more years, between the date of the alleged incidents and that of the complaints made to the police. It was said that the appellant could not now receive a fair trial because the delay meant that all he could say was "I didn't do it." There was realistically nothing, it was said, he could do to advance his defence in a way which may have been possible had the allegations been more recent.

Mr Carter who appeared below and before us on behalf of the appellant accepted that the authorities had generally established that the appropriate time for making an application of this kind was at the close of the prosecution case. He argued, however, that the delay here was exceptional and the points he wished to raise on behalf of the defence would remain unchanged whatever evidence was given during the course of the prosecution case. He submitted, therefore, that it was a proper case in which the judge could exercise his discretion to stay the proceedings at the beginning of the trial.

His Honour Judge Jacob very carefully and at some length examined the background of the case and the authorities on the exercise of the power to stay proceedings. As he observed, the imposition of a stay whether on the grounds of delay or any other reason should only be used in exceptional circumstances. Here it was not suggested there was any fault on the part of the prosecution. It was, therefore, a matter for his ascertaining whether or not the appellant could still have a fair trial. As far as delay itself is concerned, he noted that complaints of sexual abuse are not always easy to make, particularly if they arise in a domestic context. He also noted that the consequences of sexual abuse within the family can be extremely serious.

His review of the authorities led him to the conclusion that they showed a trend not only that the case had to be exceptional before it could be stopped but also that if the case proceeded it should be subject to stringent directions. He observed that in this case there was no question of alibi. The case, as he saw it all boiled down, as he put it, to "credibility". He correctly observed that there is in this country no general prohibition on the bringing of criminal trials many years after the alleged events. Having reviewed both the authorities and the facts of this case he found that he had no hesitation in saying that the defence here had failed to discharge the burden of upon them that the accused could not have a fair trial.

A jury was then empanelled. The prosecution opened their case and, one suspects to everyone's surprise, the appellant's second wife, AB, who had been sitting in the back of the court, approached the prosecution and said that she wished to make a statement that the appellant had been violent to her during their marriage. The Crown not surprisingly, appreciating that this was evidence from an independent source which might support the accounts of some of their witnesses, invited the judge to allow in evidence a statement taken from her. He agreed that her evidence was admissible but, appreciating this matter had taken everyone by surprise, he decided to allow the defence time to seek evidence to counter the new allegations and to obtain disclosure of any relevant records.

It is necessary before turning to the events of the second trial to rehearse in a little more detail the factual background to this case. The appellant married his wife CB in 1954. They had the six children to whom we have already referred, two boys and four girls. The complainant PW was born on 16th March 1959. She had two younger brothers and three sisters, LS born 2nd July 1956, SR born 15th June 1965 and RW born 17th October 1963.

The family lived in Kings Lynn before moving to a property in G in 1967/1968. G was compulsorily purchased in 1972 when the appellant bought a plot of land at H. The family lived in two caravans on the plot for a number of years whilst a bungalow was being built on the site. That bungalow was completed in 1981. In 1962 the appellant joined the Merchant Navy. He was assigned to various ships for various periods until he left the Navy in the early 1970s. He continued to work as an engineer and undertook contracts in the Middle East, including Saudi Arabia.

The appellant and CB divorced in 1985 and he married AB the following year. They separated some time after PW confronted her father with her allegations. Until that time she had not been aware of the existence of his children.

As far as the sexual allegations are concerned, PW complained that her father had first raped her when she was nine years of age. At that time she said they lived at G. We do not intend to rehearse the detail of her allegations, save to say that she claimed that when she was first assaulted the family were all in the kitchen, her father came in just before bedtime and told her that she would be sleeping in his bed that night. She did as she was told, not knowing what he intended, which she claimed was to make her masturbate him and rape her.

Thereafter she claimed there were numerous and regular occasions, sometimes monthly, when she was called into his bed and he had vaginal sex with her until she was 15. However, she also alleged that he involved her sister L. She said when she was around 10 he would bring her and L into his bed and tell them to perform oral sex on each other and do various sexual activities whilst he took photographs. Afterwards he would have sexual intercourse with one or the other whilst they were still together. She said she remembered two occasions when she and L had gone on holiday with their father. One was to a nudist colony and another occasion was on a boat in the Norfolk Broads. She said that the appellant had sex with both of them whilst they were on the boat in the Norfolk Broads. Her brother J was there also at that time, but she said J was asleep whilst this occurred. Both J and L, it should be noted, were called at trial and disputed these allegations. We shall return to what they had to say in a moment.

PW also suggested that the appellant liked the children to go without clothes and they often played outside naked. There was a debate at trial as to whether one of the properties where this was meant to have occurred, namely H, was secluded or open to passing members of the public to see what was happening.

PW told the police and eventually the jury that when she was 15 her father decided she should get a job. He forged her passport, changed her age to 18 and got her a job on a ship going to Australia. There was no dispute she was put on a a ship and sent abroad. L was said to have been sent on the same ship. The complainant said that when she returned the sexual abuse stopped because the appellant lost interest in her, but the violence continued. She also maintained that her wages had to be paid into his bank account and she had to sign a document to this effect. This the appellant denied and he maintained in interview when it was put to him that bank records should exist which would confirm his account. Those records were no longer available at trial.

PW said that having returned from Australia, she stayed at home for around six months and then she developed a relationship with an older man. Both PW and her father agreed that he was unhappy about that relationship. She said that she was forced to go to the police to complain because in an attempt to split her up from the man he had pasted her head and face onto figures of a naked woman. He maintained that he had had to go to the police to complain in an attempt to get her out of the clutches of the older man. No records existed of either complaint having been made, given the passage of time.

On the cruelty count was concerned, PW maintained that she was petrified of her father because he was so violent. She said he was vicious and would beat the children for no reason. He would slap her in the face, pick her up by the hair, throw her from one end of the room to the other and kick her. She said that this happened to her from about nine years of age and others were treated in the same way. They all were obliged to line up and watch as other children were beaten. She said she could not at that time turn to her mother because her mother was just as frightened of the appellant as the rest of them were.

Her sister, SR, also described the family set up in similar terms. She confirmed that her father was away working at sea for substantial periods, sometimes as much as three months at a time. She said her childhood was bad and her father used violence against all of them. She also recalled her father kicking and punching their mother. She said that the appellant used a belt with a buckle, sticks, a hose pipe, as she put it "anything he could lay his hands on" to strike them. She also recalled that he dealt cruelly with their sister R who often wet the bed and when it happened she said that the appellant would drag R from the room and throw the mattress out of the window. She also claimed that the violence continued when they moved to H. She also confirmed that her father would walk around naked or in shorts. She too insisted that her father was having a regular sexual relationship with their sister L. She did, however, agree in cross-examination that she had a child when she was just 16 years of age and she wanted her father to love her and be proud of the fact that she had provided him with a grandchild and she had therefore named her child after him.

Another sister, RW, gave evidence to similar effect. She, however, said that she hated her father and maintained that not only did he beat her and the rest of the children and her mother but that he used to say he hated her.

The mother, CB, gave evidence and described how the appellant was physically and verbally abusive towards her. She said that she was unable to protect her children from the violence that he inflicted upon them. She described an occasion when the appellant made the children and her get out of bed at night to dig a trench in the freezing cold. She suggested that on one occasion he had pushed her from the top of the stairs to the bottom when she was heavily pregnant. She also confirmed that she knew of the sexual abuse. She had found the appellant in bed with L. She confirmed also the account of PW that she had been sent away on a boat having had her birth certificate forged and that whilst she was away her wages were paid into the appellant's bank account.

Cross-examined on behalf of the appellant, amongst other matters she denied that the Social Services had ever become involved with the family. She was also pressed on her recollection of how often the appellant was away from home.

As we have already indicated, the Crown decided to attempt to rely upon the evidence of the appellant's second wife, AB. AB's statement contained a similar history of domestic abuse which she said began shortly after their marriage and before the complaints in the present case had been made. She too referred to his high sexual drive, the use of lubricants that PW had referred to and his taking sexual photographs. It was admitted that she had made a number of complaints. There were records of her having complained to her doctor and there were records of her having complained to the police. On one of the occasions when she complained to the police the appellant was actually charged but she did not pursue the allegation. She said that she had been shocked not only to see that the appellant had children but to hear of PW's allegations at the confrontation in 2004. The appellant later told her that PW was lying and trying to break-up their marriage.

His Honour Judge Jacob decided to allow the prosecution application to call this evidence under section 101(d) and (f) of the Criminal Justice Act 2003 in order to establish propensity and to rebut a false impression created by the appellant in interview that he could control his temper. The judge also found that there was a significant similarity in what the witnesses described about the appellant's use of a camera. However, he decided that evidence of the appellant's high sexual drive and use of lubricants should be excluded.

At the retrial the defence again opposed the admission of this evidence. They argued that the offences alleged occurred 31 to 42 years ago which in itself would create difficulties for the jury, in other words the difficulties to which Mr Carter referred in making his application to stay the proceedings. He argued that it would add what amounts to a collateral trial about an issue of misbehaviour between the appellant and his second wife if this evidence was admitted. He submitted the circumstances of defending the main trial were difficult enough for the defence. He referred to the fact that even the fresher allegations made by AB were of an age which meant that related documents and the police officers who had been involved and called to the house occupied by the appellant and AB were no longer available, rendering it difficult if not impossible properly to defend these issues.

The prosecution argued that AB's account provided independent evidence of considerable value in that, subject to the jury's view, it amounted to important and substantial corroboration of domestic violence within the house which supported the complainant's evidence. It also supported her evidence that he had taken sexual photographs.

His Honour Judge Downes decided to admit the evidence on a similar basis to His Honour Judge Jacob's ruling. and the evidence was admitted.

At the close of the prosecution case the defence renewed their application to stay the proceedings as an abuse of process of the court. Mr Carter argued that the lapse of time between the alleged offences and the date of the allegations meant that it was not possible for the appellant to receive a fair trial. He slightly changed the nature of the submission that he made bearing in mind the way the evidence had been given. He focused his submissions on the loss of a number of records; records which he insisted were essential if he were to defend the appellant properly. He referred the judge to the fact that no records now existed to show that PW had actually visited the police at the time when she said the appellant was trying to break up her relationship with the older man. He also referred to the fact that there were no police or Social Services records still available to support the appellant's claim that he had contacted them in the early days of his marriage to CB. Mr Carter reminded the judge that he could not counter PW's claim that she had been forced to pay her wages into the appellant's bank account. He also argued that the records no longer existed to show the periods when the appellant was at home on leave. This was important given that the complainant insisted she had been sexually assaulted on a regular basis probably monthly. He also referred to the fact that the garden at the H property was not in the same state as it had been at the time of the children allegedly played naked. It was difficult, therefore, for him to establish satisfactorily whether or not the property was secluded or open to public view.

The judge, acutely aware of the dangers outlined by Mr Carter, ruled that the case should proceed. He indicated that he had examined the judgments in R v Smolinski [2004] 2 Cr.App.R 661 and R v B [2003] 2 Cr.App.R 197 and had regard to the question of obtaining justice for all parties where possible. He found that on many of the issues in the present case the appellant was able to recall events, disagree with them. In interview he had been able to put forward his own version or to put his own slant on events and point out differences between the witnesses. The judge observed that this appellant was far from being in the dark and was able to assert and give his side of many of the matters relied upon by the Crown. He decided that inconsistencies had been exposed and compared with the versions of other witnesses. Albeit the jury did not have the benefit of all the documentation Mr Carter may have wished to put before them, the appellant did have some evidence upon which he could rely to establish his movements. The appellant had for example his Merchant Seaman's Log which showed the ships to which he had been assigned in the relevant periods. From those records it was also possible to establish whether the ship had been in home waters or away. That was important for the purposes of assessing the length of time that the appellant would have been home on leave.

The judge found that these were all matters that should be evaluated by a jury. He observed it was a feature in many sexual cases that an accused could only say that something had not happened and this applied whether a case was 12 weeks, 12 months or 12 years old. This was because the only people involved were very often the complainant and the accused. It was for that reason that judges were obliged to give stringent directions to juries in a trial. He noted in the present case there were many witnesses and the defence had been able to examine the different versions of events and indeed there were still witnesses available, if they wished to call them, who could support the appellant's account. Indeed, as we have already observed, that is exactly what later happened.

The appellant gave evidence about his employment and the lack of records to prove where he was at any one time or the fact he had been in contact with the Social Services soon after L had been born. He produced photographs of their family life and he gave the jury what he said was an accurate picture of what life was like at home. He insisted that he loved his children. He insisted he had never physically or sexually abused any of them. A number of the incidents referred to by prosecution witnesses he could remember but in very different terms from the prosecution witnesses. For example, he remembered the digging of a trench for water but claimed that he had forced his children and wife to do at night. He did not drag them from their beds. The trench had been dug by him and his older son and at an entirely appropriate time. Indeed he called the son to give evidence to the same effect. He was also able to deal with the allegations about the use of weapons on the children and his alleged cruelty towards R when she wet the bed. He admitted at most that he would sometimes shout at his wife because he had certain standards and on those occasions the children might look shocked, but he said that was as far as any kind of aggression went.

He gave evidence about H and said that it was open to the road and therefore it was nonsense to suggest that he, or indeed the children, had wandered around naked. He gave an account of the events when PW had a relationship with the older man and suggested that he it was who had contacted the police because of his concerns about what was happening to her.

As we have indicated, called on his behalf was his daughter LS. She described having a happy and unhappy home life, but of one thing she was sure: her father had never beaten her mother, certainly not in her presence, and there was no truth in the suggestion that the children had been regularly beaten. She had never been photographed in a sexual way by the appellant and she had never had a sexual relationship with him.

Her husband was called and he too confirmed that he had never had any concerns about his wife's relationship with her father.

JB, the appellant's son, described his family life in the 1960s and 70s as "wonderful". He was able, like his sister, to confirm that his father had been away for periods of a time at sea. He too denied that he had ever been beaten. The most he ever received was a smack for being naughty. He said that he had never seen any signs of his father having a sexual interest in any of the girls or a sexual relationship with them. He confirmed that H was a very public place in which to live. We have already referred to the fact that he denied that anything could have occurred on the Norfolk Broads holiday.

TB, another son, said that he did not ever remember his father being violent towards him. Although he was quite young at the time as far as he was aware his father did not have a sexual relationship with them and he denied the allegations so far as he was concerned that had been made.

The appellant's brother George also gave evidence. He was a visitor to the family a few times a year and he never saw anything that gave him cause for concern. He said the children seemed happy and healthy. He said they were well clothed and fed. He never saw them beaten or threatened and it was ridiculous to suggest that there had ever been a trip to the nudist camp by him and his brother.

Mr Carter's first ground of appeal on behalf of the appellant is to the effect that the judge erred in refusing to stay the proceedings as an abuse of process. In essence he repeated his arguments that in the absence of certain records a fair trial for this man was impossible. The records to which he referred before us were the employment records which would have shown when the appellant was at home on leave, the bank records which would have either confirmed or refuted the allegation that the complainant P's wages were paid into the appellant's bank account, records from the nudist camp which might have shown whether or not the family visited, records of PW's alleged complaint to the police, records of the appellant's alleged complaint to the police, and generally school or medical records which might have revealed the existence of witnesses who could have testified that the children showed no signs of either physical or sexual abuse. Alternatively, if he failed in that submission Mr Carter invited the court to exercise our residual discretion and given all the circumstances of this case quash the convictions as unsafe.

Next, if the court decided that the trial process was well equipped to deal with the kind of difficulties that faced this particular appellant y, as his third ground of appeal, Mr Carter argued that the trial process had failed. He criticised the judge for, as he would have it, watering down the directions on delay. The learned judge dealt with this between pages 25 and 29 of the summing-up. The judge began his remarks at letter D by commenting that the jury had already heard a great deal about delay from Mr Carter. He then reminded the jury that they were dealing with matters that dated back some 30 to 40 years of age and he said this:

Mr Carter took exception to these directions on the basis that they did not focus simply on the difficulties that faced the appellant. He, for example, took particular exception to this passage when the judge was referring to the police records:

Intending no disrespect to Mr Carter's sensible and well-presented submissions, we can deal with the grounds of appeal as advanced relatively shortly.

First, we deal with the application to stay proceedings as an abuse of the process of the court. The members of this court are acutely conscious of the difficulties created for both the prosecution and the defence where allegations are made of historical abuse, particularly, as here, where the events are alleged to have occurred so very many years ago. However there is, as has already been observed, no statute of limitation on criminal offences generally and certainly not on offences of this kind. The courts of this country have set their judicial face against imposing any blanket ban on prosecutions simply on the grounds of delay. In our judgment, they have done so for good reason. Allegations of this kind are very serious and there is a public interest in ensuring that those who abuse their children when young do not escape the consequences of their actions simply because the victim is so traumatised by events that it takes them many years to pluck up the courage to come forward and make a complaint, or indeed because the victim has been bullied or intimidated into keeping silent. Where, as here, there has been no misconduct on the part of the prosecution, therefore, the authorities establish the sole question for the trial judge is whether the delay and the circumstances of the allegations are such that the accused can no longer receive a fair trial. It is for the defence to establish that there has been a serious prejudice or may have been a serious prejudice to the accused and that the case is of an exceptional nature sufficient to justify staying the proceedings.

The fact of a very long delay in the making of allegations, even as long as we have in this case, does not mean of itself that an accused cannot receive a fair trial. This case is, in our judgment, an example of a case where a fair trial was possible. The appellant was, as Mr Morgan on behalf of the Crown observed, in a position to challenge a number of factual details of the accounts given by the prosecution witnesses. All those who lived with the appellant in his home were in a position to give evidence about what happened and indeed did give evidence about what had happened. Unusually the accused man did not have to rely upon documentary evidence or circumstantial evidence to counter the allegations made against him. He was able to produce denials from those it was said had witnessed events and had themselves been subject to the abuse alleged. He was able to put forward a positive case. He was far from being left in the dark. He was able to challenge a large number of aspects of the witnesses' evidence, the detail of which we have not gone into in any greater detail but appears from the papers.

So far as the missing records are concerned, we deal first with the employment records. As we have already noted the appellant had the advantage of his Merchant Seaman's Log. He knew to which ship he had been assigned and from that one could work out the length of time for which he would be at home on leave. During most of the time with which we are concerned Mr Morgan informed us that in fact the ship was in home waters and, therefore, the appellant would not have been away necessarily for long periods. In any event, as far as we can tell, the defence was well able to establish that this man would have been away for lengthy periods of time and he was able to put to the complainant that she could not have been abused on a monthly basis. This was not a case where any particular date was identified as the date of an alleged act of abuse.

So far as the other records are concerned, we consider that they are peripheral to the main issues in the case. The parties agreed that the appellant objected to the relationship between P and the older man, and both parties suggest the police were involved. Whoever actually made a complaint, if not both of them, this matter does not go to the heart of the dispute between P and her father. Wherever P's wages were paid it was agreed between the parties that at the age of 15 she was put on a boat to Australia with her sister. So far as the medical and Social Services records are concerned, the absence of those records in many ways told in the appellant's favour in this sense, the defence were surely entitled to argue that throughout the childhood of these six alleged victims of appalling sexual and physical abuse, none of the staff or teachers at any of the schools they attended, none of the doctors they must have consulted during their childhood, no other members of the family had spotted they were suffering from appalling sexual or physical abuse. So far as the records of the nudist camp are concerned, the appellant had far better evidence than any records that may or may not have existed from the nudist camp. What he had was the evidence of L who said there was no such trip.

Thus although we accept that the delay was substantial, as we must, and there were undoubted difficulties in the appellant's path, those difficulties we are satisfied were not insuperable and this was not an exceptional case justifying the imposition of a stay for the reasons that we have identified and indeed the reasons that both judges identified in their very careful and full rulings. There was here no serious prejudice to the appellant and it was very much a matter for the trial judge at the conclusion of the prosecution case to see whether or not he was satisfied that such prejudice existed.

Accordingly, it follows that there is no basis, we feel, to even consider exercising our residual discretion. We are entirely satisfied that the trial process is and was well equipped to deal with the difficulties, if any, which faced the appellant. In this case the trial process did deal with those difficulties.

Further we reject Mr Carter's criticisms of the judge for his directions on the delay. The directions in many ways mirrored the directions recommended by the Judicial Studies Board. The judge took some time not only to give the standard directions but also to specify fully and at some length all the difficulties that not only any appellant would face given the delay in this case but the difficulties that this particular appellant faced. When he referred to the effect of delay on the prosecution witnesses, as well as defence witnesses, in our view he was merely stating the obvious. There was no watering down of the directions in a way which causes this court any concern. The directions on the delay, as has been agreed, had been discussed with counsel and in our judgment had been tailored to the circumstances of this particular case if is appropriate.

We turn to the next ground of appeal, namely the admission in evidence of AB, the appellant's second wife, and her account of physical abuse at his hands. This evidence was admitted as being relevant to an important matter in issue between the parties under section 101(d) and also to correct a false impression given by the accused that he was able to keep his temper within a domestic context under section 101(f). It is perhaps important to note that although section 101 is headed "Defendant's Bad Character", section 98 in defining bad character says that:

Mr Carter conceded that the evidence was admissible under this section, as indeed evidence would have been admissible from AB had she been called to say that the appellant had never lost his temper and was never violent in a domestic setting. Thus, we ask ourselves whether the fact that the defence did not have the specific detail of the complaints she had made in the past to the police and the doctor, and of her retraction statement, was of such significance that her evidence should not have been admitted.

We are grateful to Mr Morgan for bringing to our attention that in fact there were certainly some details that were available to the defence. It seems that not only the date of the complaints was available to them but in one instance the GP's notes showed that AB had complained of being beaten, kicked and strangled and her injuries were noted. In another instance, in the crime report there was a record of AB having complained of having been pushed down the stairs. Thus, there were details available.

Also from our reading of the papers, the appellant should have had every reason to remember his life with AB and the complaints that she made. After all he admitted being present when the police were called to their house as they were on more than one occasion. If he had any problems remembering what had happened we are told he had the records of the matrimonial proceedings which followed to which he could refer.

We are satisfied, therefore, he was well able to meet the allegations and to put his positive assertions to AB that she drank to excess and that any injuries she received were caused as he attempted to restrain her. Thus we are not persuaded that this evidence, independent supporting evidence relating to an important matter in issue between the parties, should have been excluded. We do not accept Mr Carter's submissions that it compounded the difficulties that he says the appellant already faced.

In our judgment, therefore, none of the matters advanced very ably on the appellant's behalf by Mr Carter undermine the safety of these convictions. Indeed we are indebted to both counsel for their very helpful presentation of the issues in this case, but despite Mr Carter's best endeavours this appeal must be dismissed.