Case No. 2003/04299/B1
Neutral Citation Number: [2004] EWCA Crim 1270
IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Tuesday  4  May  2004

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(The Lord Woolf of Barnes)

MR  JUSTICE  AIKENS

and

MR  JUSTICE  FULFORD

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R E G I N A

- v -

MARK  PAUL  SMOLINSKI

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MR HENRY JAMES appeared on behalf of THE APPELLANT

MR PAUL GRUMBAR appeared on behalf of THE CROWN
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J U D G M E N T

	THE LORD CHIEF JUSTICE: 
1.	On 27 June 2003, in the Crown Court at Swindon, before Mr Recorder Powles, the appellant was convicted by a majority verdict of 10:2 of indecent assault upon a female (count 1). The jury were unable to reach a verdict on counts 2‑4. They were therefore discharged from delivering a verdict on those counts and the matters were ordered to remain on the file. The appellant was subsequently sentenced to a Community Rehabilitation Order for three years. As he was convicted of a sexual offence to which Part 1 of the Sex Offenders Act applies, the appellant was required to comply with section 2 of the Act: notification to the police for a period of five years. The appellant now appeals against conviction by leave of the single judge. 
2.	We have no transcripts available to us of the evidence which was given by the two complainants who were sisters, and who were respectively aged 6 and 7 at the relevant time, but we have been assisted by the fact that counsel who appear before us today were the counsel who appeared at the trial. 
3.	The offences were alleged to have occurred some time between 1981 and 1983, but they were first reported to the police twenty years later, in September 2002. The appellant at the time of the offence was 16 years old. He baby‑sat for the two girls, Clare and Michelle, at their house on between three and six occasions over a period of a few months. 
4.	It was the prosecution's case, supported by both girls, that on one such occasion the appellant sat between them when they were wearing nightdresses and simultaneously played with their vaginas (count 1 in respect of Clare and count 2 in respect of Michelle). The girls could not recall if they had underwear on beneath their nightdresses. There was no suggestion of any digital penetration. 
5.	The appellant's case was that the allegations were untrue. He denied that he had been guilty of the conduct alleged. However, when he was interviewed by the police he was not as adamant about his not having done anything of this nature as might be expected, notwithstanding the period of time which had elapsed. 
6.	An application was made by Mr James on behalf of the appellant to stay the proceedings for abuse of process. It was submitted that the appellant could not receive a fair trial as a result of delay and that he would be prejudiced by lack of memory because of the time that had elapsed. 
7.	The judge perfectly correctly, as is accepted, approached the matter in accordance with the decision of Attorney General's Reference No 1 of 1990. He came to the conclusion that on the balance of probabilities it had not been shown that a fair trial was impossible. 
8.	The making of applications to have cases stayed where there has been delay on the basis of abuse of process has become prevalent. In making his application Mr James followed what has become the usual practice in cases of this nature. This court does not criticise him for doing so. However, the court questions whether it is helpful to make applications in relation to abuse of process before any evidence has been given by the complainants in a case of this nature. Clearly, having regard to the period of time which has elapsed, the court expects that careful consideration has been given by the prosecution as to whether it is right to bring the prosecution at all. If, having considered the evidence to be called, and the witnesses having been interviewed on behalf of the prosecution, a decision is reached that the case should proceed, then in the normal way we would suggest that it is better not to make an application based on abuse of process. It will take up the court's time unnecessarily. Unless the case is exceptional, the application will be unsuccessful. That was indicated by this court in R v B (unreported) [2003] EWCA Crim 319, which is also referred to in the current edition of Archbold. In that case this court referred to the earlier decision, including Attorney General's Reference No 1 of 1990 (1992) 95 Cr App R 296, and suggested that the approach of Lord Lane in that case indicated the general position. 
9.	If an application is to be made to a judge, the best time for doing so is after any evidence has been called. That means that on the one hand the court has had an opportunity of seeing the witnesses, and, on the other hand the complainants have had to go through the ordeal of giving evidence. However, despite the latter point, which obviously is one of importance, it seems to us that on the whole it is preferable for the evidence to be called and for a judge then to make his decision as to whether the trial should proceed or whether the evidence is such that it would not be safe for a jury to convict. That is a particularly helpful course if there is a danger of inconsistencies between the witnesses ‑‑ inconsistencies of the sort that it is common ground occurred here. However, as is pointed out by Mr Grumbar on behalf of the Crown, the Recorder who tried this case was very experienced. He gave an immaculate summing‑up. He dealt with the application to which we have made reference in a perfectly appropriate manner. It is likely that if he thought this case was not one which it was safe for the jury to consider, he would have withdrawn it from them. 
10.	Although this was not stressed by Mr James, the matter that has weighed heaviest with this court in considering this appeal is the fact that in relation to one girl the jury came to the conclusion that they were satisfied that the case had been made out; but in relation to the other girl they were not satisfied that the case had been made out in respect of the second count of the indictment. This is significant because the one thing upon which the two girls were agreed was that the appellant behaved in exactly the same way in relation to the subject matter of the first and the second count on the indictment in respect of each. We find it difficult to see, if the jury accepted, for example, Clare's evidence, who was apparently the most adamant about the matter in relation to the count affecting her, and they were satisfied as to her, why they should not be satisfied with regard to her sister as well, particularly in view of the description which Clare gave. It is true with regard to counts 3 and 4, which alleged acts of gross indecency, that the girls' accounts differed, but in relation to counts 1 and 2 they were the same. 
11.	Looking at this case as a whole, we see the position as follows. We consider that it was proper for the Recorder to leave the case to the jury. He properly summed up to the jury. Questions as to whether witnesses are to be believed or not are essentially matters for the jury. If it had not been for the matter of the verdicts, to which we have referred, we would have found it difficult to interfere with the conviction which took place in this case. We do not think it is right for this court to lay down the principle that because of the period which has elapsed (twenty years) when the complainant has given a reason for the delay, it is inevitably the case that the convictions will be unsafe. However, where there has been a long period of delay such as existed in this case, and where the complainants are young, as they were here (6 and 7 respectively at the time matters happened), this court should scrutinise convictions with particular care. Likewise, we consider that trial judges should scrutinise the evidence with particular care and come to a conclusion whether or not it is safe for the matter to be left to the jury. 
12.	In this case, looking at the matter as a whole, bearing in mind there are discrepancies, bearing in mind that the elder sister, until reminded by her younger sister, was apparently oblivious of what was alleged to have happened earlier, bearing in mind the conclusion which the jury came to on the first count but were unable to come to the same conclusion on the second count, that this is a case where the conviction is unsafe. Accordingly, we will therefore allow the appeal.
13.	We hope we have made clear two things in the course of hearing this appeal. One is that we discourage applications based on abuse in cases of this sort. Secondly, where evidence is given after so many years, the court should exercise very careful scrutiny at the end of the evidence to see whether or not the case is safe to be left to jury. If there is an appeal, then this court will scrutinise the situation with care. We are certainly not indicating that it is not right to bring prosecutions in the appropriate circumstances merely because of the period that has elapsed. As this court appreciates, it is sometimes very difficult for young children to speak about these matters and therefore it is only many years later that they come to light. Justice must be done of course to a defendant, but the court must also be mindful of the position of the alleged victims.