S, R. v

THE VICE PRESIDENT: On 1st April 2005 at Plymouth Crown Court, following a trial before His Honour Judge Gilbert QC, the appellant was convicted on count 6 of rape and on counts 7 and 8 of indecent assault on a female. He was sentenced to 7 years' imprisonment for rape and to 4 years' imprisonment concurrently on each of the indecent assault counts. That sentence was ordered to run concurrently to the 7 years for rape. The total sentence was therefore 7 years' imprisonment.

Dealing immediately with the sentence aspect of this matter, in relation to which the appellant has the leave of the Single Judge, it is common ground that the maximum permissible sentence for indecent assault at the time when these offences were committed was one of 2 years' imprisonment. It follows that the purported sentences of 4 years were unlawful. We quash those sentences and substitute sentences of 2 years' imprisonment on each of counts 7 and 8 concurrently with each other and concurrently with the 7 years for rape.

As to conviction, the appellant appeals by leave of the Single Judge, which was granted on a single ground, to which in due course we shall come.

The facts were these. All the allegations related to conduct which was said to have taken place between the appellant and his two younger sisters during the 1970s at their home near Plymouth, where they all lived with their parents. The elder of the two sisters, P, complained that the appellant had raped and indecently assaulted her between 1973 and 1976 and the appellant was acquitted on the counts on the indictment which related to that. The younger sister, S, was born in March 1968. She complained that the appellant had raped her and had indecently assaulted her, in relation to which count 7 and 8 were specimen counts, in 1978 to 1979, when she was 10 to 11 years old, and he was some 10 or 11 years older. Neither sister complained until 2004.

What happened, at that time, was that the appellant was cautioned for indecently assaulting a female under 14 years of age, namely, a 12 year old girl, whose breasts he had touched over her clothing. To the significance of that we shall later return.

At the close of the prosecution case the appellant sought a stay of proceedings on the ground of delay. That was refused and that refusal gives rise to the ground of appeal on which the Single Judge granted leave. The issue centrally for the jury's consideration was credibility.

S said, in evidence, that they were living at home in about 1978, when she was 10 and the appellant was 21. On one occasion he called her upstairs to his bedroom, removed her pants, touched her vagina with his fingers and mouth and raped her. It hurt. She asked him to stop. Having ejaculated, he did. Through the bedroom door, which was ajar, she saw P come up the stairs, look at her, and go downstairs again. S said the appellant never raped her again but, from that time, until late 1979 when he left home, there were several occasions when he touched her breasts and vagina with his mouth and made her put his penis into her mouth while he masturbated. That gave rise to the two counts of indecent assault. She did not tell anyone about this, and she and P never mentioned it.

She went to the police, in 2004, because she had heard about the appellant touching another girl who was his girlfriend's daughter: that was the conduct which gave rise to the caution to which we have earlier referred. P, in her evidence, described seeing S on the floor and the appellant on top of her, with his penis in her vagina, and she went back downstairs and did not tell anyone. That, she said, was in about 1978.

In interview, the appellant said that none of the events described by the two young women (as they now were) had occurred. He could not explain why his sisters were saying that which they said, except that, in 2003, he had sided with P's ex-husband in relation to a drug overdose, which, sadly, had caused her son's death.

The appellant did not give evidence before the jury. His defence was that the complainants were not to be believed. The events had not taken place.

The learned judge, in addition to refusing to stay the proceedings when a submission seeking such a stay was sought at the close of the prosecution case, also ruled that the appellant's caution in 2004 was admissible, in the light of the provisions of the Criminal Justice Act 2003, section 101(1)(c), that is to say that it was important explanatory evidence. Explanatory evidence is defined in section 102 of the Act in these terms:

Mr Osborne, on behalf of the appellant, seeks to renew this ground of appeal. He submits that a caution of the kind to which we have referred is not properly characterised as evidence of bad character. In our judgment, that is an impossible submission to maintain in the light of section 98 of the 2003 Act, which defines "bad character" in the relevant chapter of the Act as being "evidence of, or of a disposition towards, misconduct". That use of the word "misconduct", as it seems to us, is clearly not limited to previous convictions, nor to cautions. It can extend to behaviour which may not have given rise to either a conviction or a caution. It follows, in our judgment, that it is not arguable that a caution is not within the statutory definition of bad character.

Mr Osborne's principal submission relates to the test applied by the learned judge, when reaching the conclusion, not to stay the proceedings on the grounds of delay. There are two subsidiary grounds in relation to that aspect of the case on which Mr Osborne renews his application for leave to appeal following refusal by the Single Judge. It is convenient to deal with these first.

The factors which he identifies in his written and oral submissions as being pertinent to the impact of delay on the fairness of the proceedings are that the delay was of 25 years, both parents of the three children had died, the absence of available medical records in relation to the period of abuse, the family had left the home as long ago as 1984, the lack of particularity with regard to the dates of the allegations, which deprived the defendant of the opportunity of advancing a positive alibi and calling witnesses, and one of the four brothers who had lived at home at the time had died in 2004. All of those children, it is said, could have given valuable evidence with regard to the layout of the premises. It is significant that every one of these factors was taken into account by the judge when he gave his ruling refusing to stay the proceedings. In our judgment, there is no ground arguable in relation to that.

Mr Osborne is also critical of the terms of the summing-up with regard to delay. Having read the directions which the judge gave to the jury, which are set out in the transcript of the summing-up at page 10 from letters C to G, there are, in our judgment, no properly sustainable grounds of criticism which can be advanced.

We turn, therefore, to the ground on which the Single Judge granted leave. In the course of his ruling refusing a stay, the learned judge, at the top of page 3 of the transcript, Volume III, dated 31st March 2005, referred to the well-known passage in the judgment of Lord Lane CJ, in Attorney-General's Reference No 1 of 1990 95 Cr App R 296, at 3O3. In that passage Lord Lane identified a number of factors and principles to which judges should have regard, when considering an application to stay proceedings for an alleged abuse of process on the ground of delay. He also, in the course of that passage, which has, repeatedly, subsequently been endorsed by differently constituted divisions of this Court said that "a stay should not be imposed unless the defendant established, on the balance of probabilities, that the defendant would suffer serious prejudice."

Mr Osborne submits that that approach is no longer valid in the light of the judgment of the Court given by Clarke LJ in R v EW [2004] EWCA Crim 2901. In the course of that judgment Clarke LJ, at paragraph 21, cited paragraph 76 of the judgment of this Court in R v Hooper [2003] EWCA Crim 2427, where the full passage which we have summarised from Lord Lane's judgment in Attorney-General's Reference No 1 of 1990 is set out. The Court added in Hooper "that approach is still the law as was made plain by Lord Woolf CJ in the judgment which he gave in Attorney-General's Reference No 2 of 2001 [2001] EWCA Crim 1568 at paragraph 16 and following. In paragraph 22, Clarke LJ went on as follows:

Mr Osborne relies, in particular, on the first sentence of paragraph 23 in that judgment. He submits that in that passage this Court brought the role of the prosecution into play, which Lord Lane, in Attorney-General's Reference No 1 of 1990 had not. In consequence, Mr Osborne is critical of the judge's reliance, in the present case, on at passage in Lord Lane's judgment. For the Crown, Mr Galloway, understandably, relies on paragraph 22 of the judgment in EW which we have cited. He furthermore draws attention to the passage in the judge's ruling on this matter, which appears at page 6B in Volume III:

Mr Galloway submits that the judge had all the factors relevant to the question of stay in mind and at a time when he had already heard the evidence of the complainant, so he was particularly well placed to assess their potential significance.

In our judgment, the discretionary decision whether or not to grant a stay as an abuse of process, because of delay, is an exercise in judicial assessment dependent on judgment rather than on any conclusion as to fact based on evidence. It is, therefore, potentially misleading to apply to the exercise of that discretion the language of burden and standard of proof, which is more apt to an evidence-based fact-finding process. Accordingly, we doubt whether, today, in the light of intervening authorities in relation to the exercise of judicial discretion, Lord Lane would have expressed himself as he did with regard to the burden and standard of proof. Seen in this light, the observations of Clarke LJ in EW paragraph 23, as Clarke LJ himself recognised, represent no departure from the general approach of Lord Lane which was followed by Lord Woolf CJ, giving the judgment of this Court, in Attorney General's Reference No 2 of 2001, [2001] EWCA Crim 1568, paragraphs 16 and following, by this Court differently constituted in Hooper, and by Lord Woolf CJ again in B [2003] EWCA Crim 319, paragraphs 15 to 18, and R v Smolinski [2004] EWCA Crim 1270, paragraph 7. In our judgment the approach indicated by Clarke LJ in paragraph 22, of the judgment in EW is entirely appropriate.

In the light of the authorities, the correct approach for a judge to whom an application for a stay for abuse of process on the ground of delay is made, is to bear in mind the following principles:

In the light of those considerations, there is, as it seems to us, no ground for regarding this appellant's conviction as being unsafe by reason of the judge's refusal of a stay or for any other reason. Accordingly, this appeal against conviction is dismissed.