Neutral Citation Number: [2013] EWCA Crim 1592
No: 2012/6532/B1 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Tuesday, 10 September 2013
 
B e f o r e:

LORD JUSTICE TREACY 

MR JUSTICE HICKINBOTTOM 
 
MR JUSTICE NICOL 
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R E G I N A 

v 

R.D.
 
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Mr M Kimsey appeared on behalf of the Appellant 
Miss A Llewellyn‑Waters appeared on behalf of the Crown 
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J U D G M E N T 
1.	LORD JUSTICE TREACY:  On 24th October 2012 in the Crown Court at Kingston upon Thames, this appellant was convicted of a number of sexual offences relating to historical allegations made by four complainants.  Three of the complainants were his nieces, one complainant was his biological daughter who had been adopted by another member of his family.  Looked at comprehensively the allegations covered the period between 1949 at the outset and 1973 at the conclusion of the events described by the different complainants.  That means that there has been a period of delay in bringing these matters to trial, ranging between 39 and 63 years.  That sort of level of delay is extreme even by the standards of courts in this jurisdiction which are used to trying allegations of historic sexual abuse.
2.	It is necessary to give a brief history of the allegations so that the matters to be considered by this court fall into context.  The first complainant was J.  Her allegations, counts 1 and 3, spanned the years from 1949 to 1956, covering a period when she was aged 8 or 9 to a time when she was aged about 14.  At that stage the appellant was aged between 15 and 22.  The counts were specimen counts, with count 1 being the more serious, an allegation of attempted rape.  The offences were alleged to have occurred during school holidays at J's maternal grandparents' home in South Wales, which was also the home address of the appellant.  
3.	During that period the appellant worked in a local colliery after leaving school.  There are no shift records showing his working pattern.  In late 1953 he joined the army and performed military service until January 1957.  Part of his service was performed as part of the British Army on the Rhine.  The remainder of his service was performed within the United Kingdom.  The appellant was a bandsman, performing in a military band, and at times he went on tour with that military band.  However, during his period of military service he had leave and the evidence showed that he would return to his parents' home.  Complaint is made of the sparsity of military records for the time of his service and also in relation to the absence of witness evidence from military colleagues who might have provided assistance as to the nature of his military service and in particular at what times he was available to go on leave and thus visit the place where the offences were alleged to have been committed.  
4.	The second complainant was G.  She alleged that the abuse of her took place between 1953 and 1957 when she would have been aged between 10 and 14.  She was close to the first complainant J.  They lived in the same part of England and attended the same school.  She too would spend school holidays, particularly summer holidays, in the home of the applicant's parents.  She made complaint of matters of sexual abuse over a period of time, again reflected in specimen counts, counts 4 to 10 on the indictment.  
5.	In the case of these two complainants, their own parents are no longer in a position to give evidence.  A surviving aunt is unwilling to support either side's case but says that she was unaware of anything untoward ever occurring.  The complainants' grandparents are dead and complaint is made that the absence of those and other relatives means that the issues surrounding what took place in the grandparents' home, including the timing of visits by the complainants, the timing of leave visits by the appellant when he was serving in the army and the layout of the premises themselves, are matters of which he has been deprived of useful evidence.  Moreover, school records relating to those girls are not available, nor are medical records in relation to them.
6.	The third complainant was S, the biological daughter of the appellant.  Her complaints related to a period between 1965 and 1971 by which time the appellant had married and was living in his own home with his present wife.  The allegations relating to S are the most serious in this case involving repeated rapes which had been preceded by indecency.  Again, specimen counts were preferred in Counts 11 to 15.  The process of searching for documents as the trial was being prepared enabled an electoral roll to be found which cut down the period during which the Crown alleged that rapes had been perpetrated upon this complainant at a particular address at which she had been in the habit of going to stay with the appellant and his wife.  Thus it was that he was acquitted on two of the counts, counts 12 and 13, of specimen rapes because the information from the electoral roll demonstrated that he would not have been resident at the property in question during the dates covering those two counts.  The applicant's mother was said to have been present on the occasion of the visits by S when she had been abused.  She unfortunately has died and evidence which she might have provided is therefore unavailable to the appellant.
7.	The final complainant was a niece, Y, whose complaints were confined to a single incident occurring in late 1973 (Count 16), shortly before the appellant emigrated to Australia.  At the time she was 12 years of age.  She claimed that on the occasion of the appellant's mother's funeral he had fondled her breast in the street.  That episode was, as we say, a single incident in contradistinction to the allegations made by the other complainants.  It has not been possible for the appellant to trace others who attended the funeral to see if they had any useful evidence to give.
8.	In addition to the military records which are criticised as inadequate, the appellant on completing his military service in 1957 resumed employment at the local colliery.  Again there is an absence of any record showing his shift and holiday patterns.
9.	The appellant was first confronted with any allegation in 2008 when G and Y confronted him in Australia.  He was subsequently extradited to this country to stand trial.  His defence was one of fabrication, an allegation of collusion by the complainants and a denial of any improper conduct by him towards any girl at any time.  
10.	The appellant was a man of good character, apart from these matters alleged against him and there is no suggestion of any improper activity of any sort carried out by him after the end of 1973.
11.	It is helpful at this stage to tabulate the counts on the indictment and on which guilty verdicts were returned and the sentences imposed on the individual counts.  
Count on indictment	Offence 
	Pleaded guilty or convicted	Sentence 	Consecutive or Concurrent	Maximum	
Count 1	Attempted rape of J	Convicted 	2 years	Concurrent	 7 years 	
Count 3 	Indecent assault upon J	Convicted	18 months 	Concurrent	2 years	
Count 4	Attempted rape of G	Convicted	4 years	Concurrent	7 years	
Counts 5-10	Indecent assault upon G	Convicted	 2 years 	Concurrent	2 years 	
Count 11	Indecency with a Child (S)	Convicted	2 years	Concurrent	2 years 	
Counts 14 -15	Rape of S	Convicted	11 years	Concurrent	Life 	
Count 16	Indecent Assault upon Y	Convicted	18 months	Concurrent	5 years 	
Total Sentence:	11 YEARS IMPRISONMENT  	
 
All offences, of course, precede the Sexual Offences Act 2003.
 
12.	Prior to the trial the defence sought a stay on the grounds of abuse of process due to delay.  The judge, having heard detailed submissions made by counsel, made a ruling in May 2012 having reserved judgment to consider the matter over a period of about six weeks.  The judge rejected the application.  There was a further application made once the four complainants had given evidence at the trial and again the judge rejected the application and held that the trial process was capable of dealing with the problems raised by the passage of time and the potential effect it had upon the ability of the appellant to mount a proper defence and to have a fair trial.  The judge gave full and detailed reasons for her decisions and she considered the relevant authorities including the decision of a five judge Court of Appeal in R v F (S) [2011] 2 Cr.App.R 28.  
13.	Earlier authorities and the decision in F (S) show that a stay on the grounds of delay should only be employed in exceptional circumstances and only if a fair trial is no longer possible owing to prejudice caused by the delay which cannot fairly be addressed in the trial process.  Normally the trial process can ensure that all relevant factual issues arising from delay will be placed before the jury, together with appropriate directions from the judge in summing‑up.  These are essential considerations in the assessment of whether or not a defendant will suffer serious prejudice.  
14.	The delay in this case is exceptionally long, between 39 and 63 years.  The length of the period of itself proves nothing beyond that historical fact.  What is of crucial importance is the effect of such delay on the fairness of the trial and the safety of any resultant convictions.  In this case the appellant's submissions have not proceeded by reference to generalities based on the substantial lapse of time.  Mr Kimsey has rightly concentrated on the question of prejudice to the defence caused by the absence of witnesses and documents arising from the delay.  Quite apart from the question of missing materials, there were raised by the appellant in his trial issues of alleged collusion between the complainants and assertions of vagueness and inconsistency within their evidence.  Those matters are of course not relevant to considerations of whether the trial should have been stayed on grounds of prejudice arising from extreme delay.  They, along with the reasons for delay in reporting, form part of the relevant material for the jury to consider in deciding if the Crown has proved its case.  
15.	In considering the question of prejudice to the defence, it seems to us that it is necessary to distinguish between mere speculation about what missing documents or witnesses might show, and missing evidence which represents a significant and demonstrable chance of amounting to decisive or strongly supportive evidence emerging on a specific issue in the case.  The court will need to consider what evidence directly relevant to the appellant's case has been lost by reason of the passage of time.  The court will then need to go on to consider the importance of the missing evidence in the context of the case as a whole and the issues before the jury.  Having considered those matters, the court will have to identify what prejudice, if any, has been caused to the appellant by the delay and whether judicial directions would be sufficient to compensate for such prejudice as may have been caused or whether in truth a fair trial could not properly be afforded to a defendant.  
16.	The appellant's case is that the delay in this matter has led to serious prejudice being caused to him with the result that a fair trial could not and did not take place.  
17.	First of all, it is submitted that important documents were missing or have been destroyed.  They can be divided into a number of categories.  Army records although recovered are said in part to be indecipherable or to have failed to provide information as to where the appellant was based at any given time and as to when he would have had the opportunity to visit his parents' home which is where the offences against J and G took place.  Secondly, there is an absence of school holiday records for J and G.  Their absence has deprived the appellant, it is said, of a chance to compare those dates with his leave dates so as to see what window of opportunity was available for the abuse alleged to have taken place at his parents' home.  Next, there are no colliery work records showing what shifts the appellant worked and what holiday periods were afforded to him.  Again, those are said to be relevant to the opportunity to have been at home at a time when visits were taking place by the complainants J, G and S.  Further, the medical records of the complainants, and G in particular, are pinpointed as significant by their absence.  G had suffered from rheumatic fever for which she received substantial inpatient treatment and which is said to be relevant to her evidence as to the timing of the start of the abuse against her.  Those records are unavailable.  Moreover, she had in the early part of this century consulted a psychotherapist and no records are available of those consultations, and there is a record of a consultation with the psychiatrist whereby he has recorded that she alleged that she had been abused by her father's brother, whereas in truth, if her allegations are correct, the abuse was by her mother's brother.  Again, other records of those consultations are unavailable.  Finally, as far as documents are concerned, care records pertaining to the appellant's mother are absent.  If available it is contended they would have shown precisely when the appellant's mother was living at his home during the period when S was claiming to have been abused there.  
18.	In addition to absent documentary material, there are said to be a number of potential witnesses who are either dead or unavailable through infirmity.  First, other family members who could have described the length and circumstances of the visits by J and G to the appellant's parents' home and given evidence about the layout of the house in the 1950s.  Secondly, the appellant's mother concerning S's visit to the appellant's marital home.  Thirdly, evidence from army colleagues about band tours and the timing of those.  Fourthly, funeral attenders in relation to the allegation made by Y.  
19.	Mr Kimsey submitted to us that the cumulative effect of all this missing evidence has been to lead to an unfair trial.  He argues that the judge wrongly rejected his submissions and wrongly concluded that the trial process could fairly address the issues arising from the delay and the deficits in potential evidence.  The judge had wrongly focused on the credibility of the witnesses as a central issue and had failed properly to assess the impact of the missing evidence upon the appellant's ability to mount a defence.  It was asserted that the appellant's defence was not merely one of denial, his case in effect raised an alibi which he could not make good and he was prevented from positively attacking the Crown's case which he might well have been able to do had the missing evidence been available.  
20.	It seems to us that some of those submissions were overstated.  This case, although unusual in relation to the length of time which has elapsed, presents difficulties of a sort which frequently occur in cases involving lesser delay.  There also underlay the submissions made on behalf of the appellant the assumption that the missing evidence would necessarily have supported the appellant's case, which we are unable to accept.  Moreover, the complaints of J, G and S were not date specific but were couched in general terms of sexual abuse occurring on very many occasions during visits during school holidays within wide periods identified in the indictment.  Accordingly, an alibi in its true sense was not the issue before the jury.  The issue was in reality whether or not the jury could be sure that the abuse had taken place.  It was not disputed that the first two complainants, J and G, had visited their grandparents' home, nor in relation to S was it disputed that she had visited the appellant's home during school holidays.  It was not in dispute in relation to each of the premises at which those offences were alleged to have taken place, that the appellant was present on occasions so that the opportunity to do what was alleged undoubtedly existed.  The question for the jury was to consider whether they were sure whether the appellant availed himself of the acknowledged opportunities which existed to commit the offences.  It is clear to us nonetheless that there was detriment to the appellant's case by reason of the delay, but the question for us is its extent and effect.  
21.	In ruling that the trial process could fairly deal with the problems raised, the judge gave two very careful rulings which considered the submissions made and the missing evidence.  The latter of her rulings reviewed and reconsidered the matter after evidence had been heard.  She considered and applied the relevant authorities including F(S) and we can detect no error of law in her rulings.  
22.	In summing up the judge gave appropriate directions about delay and its potential impact upon the ability of the appellant to raise a defence, and left those issues clearly and fairly to the jury.  However, we consider it right to go on to analyse whether notwithstanding our conclusion about the judge's handling of the matter, both in her rulings and in the summing‑up, we are sure that her assessment of the impact of the absent evidence was one that can be sustained bearing in mind the matters raised by Mr Kimsey.  We have had the benefit of careful analysis of the position, not only by Mr Kimsey for the appellant but also by counsel for the Crown.  The Crown's submission is that the cumulative effect of the missing evidence did not justify a stay and does not make the guilty verdicts unsafe.  This was a case where the jury was properly able to assess the position and to take account of missing evidence in deciding if it was sure on any particular count.  
23.	Assisted by the careful analyses of counsel, we have looked at the individual cases and come to the following conclusions.  As far as J and G are concerned, we do not consider that the layout of the grandparents' house was a major issue.  The appellant was able to describe the layout of the premises himself and the jury were able to set that against such descriptions as the two complainants gave in their evidence.  The allegations in respect of this part of the case is that the offences took place upstairs in that house at night when there were adults downstairs.  There was evidence from the complainants that there had been occasions when both had stayed at the premises together during the school holidays, although neither claimed to have seen the other being abused.  The appellant did not positively dispute that the pair had on occasions stayed at that house together, his case was that he could not remember them having done so.  He did not, however, dispute his daily presence at his parents' house during the periods of time when he was working in the pit, that is before and after his military service.  As far as his military service was concerned, there was evidence before the jury in schedule form of the periods during which he had leave from that service and it was not in dispute that the appellant had used his leave to return to stay at the family home.  The complainants said that offending took place less frequently when he was in the army. The records of military leave would not have included other leave such as periods of weekend leave.  The appellant was able to give an undisputed account of his working life and daily lifestyle.  On any view, however, there was at least the opportunity for him to have acted in the way alleged by the complainants when they and he were at his parents' home.  
24.	Having considered the matter in detail we are not persuaded that fuller evidence about shift patterns at work, or about dates of leave from the army, or evidence from other family witnesses or military friends, would have taken the matter much further.  This is particularly so when it is borne in mind that all of the offences alleged were alleged to have occurred in that house in rooms where the victim or victims were alone with the appellant.  On any view there were significant opportunities for this abuse to have occurred.  The school holiday records would not have advanced matters materially and in our judgment that sort of missing evidence, whether it be from work, army or school records, is not of a degree or cogency to amount to a finding of serious prejudice in its absence.
25.	As far as medical records are concerned, there has been reference in the case of G to her rheumatic fever.  As we have stated, such records were missing.  The issue however of the time at which the abuse of her began was explored in some detail before the jury, not least because she had given inconsistent accounts as to when the abuse had started.  That issue was fully considered by the jury and we do not think that the absence of records showing the date of treatment for rheumatic fever materially affects that particular issue.  
26.	In relation to G there are other matters which relate to missing records.  The issue of the reference to the offence being committed by her father's brother in a history recorded by a psychiatrist was again a matter which was before the jury and was the subject of submission by defence counsel.  As far as psychotherapy records which relate to treatment consequent on a family bereavement in the early part of this century are concerned, the absence of those records takes the matter no further forward.  The contents of such confidences as G made to the psychotherapist are entirely speculative.  
27.	We turn then to the case of S, the appellant's natural daughter, who alleged abuse when she was visiting the home which he shared with his wife in the 1960s.  Both the appellant and his wife gave evidence.  The fact of the visits was not disputed.  The evidence of the electoral roll substantially narrowed the period over which S could have been abused at the particular address relied on by the Crown.  The finding of the electoral roll enabled the defence to use it as an example to the jury of the problems caused by missing material and as an example of vindication of the defence's position when material had been unearthed.  The evidence given by S was in fact not confined to abuse at the particular address identified in the electoral roll.  She had given evidence of abuse having commenced at a different address on some earlier occasions, but on account of the vagueness of her account in relation to that earlier address the Crown had confined its allegations to the address to which the electoral roll related.  
28.	Still considering the case of S, we move to the absence of evidence either in documentary form or from the appellant's mother directly.  We regard such evidence as might have emanated from those sources as being of limited value.  This is not a case where the abuse is alleged to have taken place during her physical presence.  On occasions when she was at the appellant's home and when S visited she was undoubtedly at a stage in her life when she was suffering from a degree of infirmity which raises the question in any event of her ability to have made any meaningful contribution had these allegations been raised prior to her death.  The fact is that this appellant was able to call his wife as a witness as to the activities in the matrimonial home at the time of the offences alleged by S.  She was much more likely to be a cogent witness for the defence than his late mother. We do not consider that there is any significant prejudice shown in the case of S.  
29.	Finally, we turn to Y, that is the niece, alleging an offence taking place at the funeral.  Her evidence was of a brief assault which did not take place in circumstances where others were likely to have seen it.  She did not complain to anybody at the time.  In our judgment, the absence of evidence from others who attended the funeral is not of any significance.  
30.	At the outset of his submissions to us, Mr Kimsey referred to the concept of a lurking doubt.  He did so taking care to draw the court's attention to the recent decision of this court in R v Pope [2013] 1 Cr.App.R 14, and in particular the observations of Lord Judge, CJ, at paragraph 14.  The use of the expression "lurking doubt" is one which is to be deprecated or used very sparingly in modern times.  It certainly should not reflect the subjective feeling of members of this court and should only come into play in conjunction with a properly reasoned analysis of the evidence.  
31.	We do not need to resort to such concepts in our consideration of this case.  Although this matter required careful scrutiny because of the very substantial delay in this case, we are entirely satisfied that the judge was correct in her assessment that the trial process could properly cope with the difficulties faced by this appellant and that there would be and indeed was no prejudice to him of a type which would mean that he could not and did not get a fair trial.  On an analysis of the missing material and on an analysis of the evidence given at the trial and the issues before the jury, we are satisfied that this appellant received a fair trial, and was not disadvantaged in a way that could properly be described as amounting to serious prejudice to his ability to mount a proper defence to the allegations brought against him.  Accordingly, our conclusion is that the convictions are safe and that the appeal against conviction must be dismissed.
32.	There remains before the court an application in relation to sentence.  A number of grounds have been put forward by Mr Kimsey in relation to the earlier counts on the indictment, that is counts preceding counts 14 and 15 in relation to which the overall sentence was passed.  The judge imposed a term of 11 years in relation to counts 14 and 15 and passed lesser concurrent sentences on the other counts on the indictment.  It follows therefore that points which are raised by Mr Kimsey in his written grounds on those earlier counts are moot, given that the sentences were ordered to run concurrently with the 11 year term.  We deal with those earlier matters briefly by saying that we do not consider that there was any cogency in any of those earlier matters.  But we focus on what is at the heart of the application relating to sentence, namely the submission that a term of 11 years was too long.  
33.	Mr Kimsey says in particular that the judge failed properly to have regard to such mitigation as was available to this appellant.  Clearly there was no mitigation available for a guilty plea.  However, the appellant could point to the following matters: his age, he was 78 at sentence, he is now 79 years of age; he suffers from a number of health problems; the consequence of his domestic arrangements mean that his wife is not entitled to remain in this country and has had to return to Australia, so that he will be serving his sentence in a prison in a country remote from that in which he has made his life for a number of decades and separated from his wife of many years.  He is further entitled to point to the fact that he has not offended in any way since 1973, the date of the last of these allegations.  
34.	Those are all matters of mitigation.  The judge took them into account.  She had fixed a starting point in this case of some 16 years and then reduced it by a period of five years to reflect those matters we have just summarised.  The main question for us is whether that was a sufficient deduction.  We have come to the conclusion that the judge's starting point cannot be impugned.  It is a starting point which is in line with the sentence which is appropriate not only for the totality of this offending but also for the specific offences which were repeatedly committed against the victim S, who is the particular subject of counts 14 and 15.  A starting point of 16 years in our judgment was perfectly appropriate.  The reduction of five years in our judgment appropriately reflects the available mitigation.  
35.	The sentence passed is of course a firm one for a man of the age and in the circumstances of this appellant, but we do not regard it as appropriately the subject of criticism.  There is therefore no tenable argument against that term of 11 years and the application in relation to sentence is dismissed.  
36.	Accordingly, the appeal against conviction and the application in relation to sentence both fail.