B e f o r e :
(LORD JUSTICE ROSE)
MR JUSTICE STANLEY BURNTON
MR JUSTICE HEDLEY
|R E G I N A|
|STEPHEN PAUL S|
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MR M GALLOWAY appeared on behalf of the CROWN
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"Evidence is important explanatory evidence if-
(a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and (b) its value for understanding the case as a whole is substantial."
The judge having admitted that evidence, there is a ground of appeal in relation to that ruling for which the Single Judge did not grant leave.
"22. It appears to us that ultimately the question for the judge on any application for a stay in a case of this kind is essentially whether in all the circumstances of the case a fair trial is possible notwithstanding the delay.
23. We think that there is force in Mr Crozier's point which was not taken in either B or Hooper, that once the issue has been raised it must be for the Crown to satisfy the court that a fair trial is still possible. Nevertheless it must be for the defendant to raise the issue and to identify those respects in which he says that a fair trial is not possible. We are not persuaded that this approach is in substance different from that adopted in Attorney General's Reference No 1 of 1990. The Recorder himself had this point in mind. He held, in our view correctly, that in this case it made no difference to his decision whether he approached the case on the basis of a legal burden of proof on the balance of probabilities lying on the defendant, or simply as an evidential burden on the defendant."
"I am conscious of the critical importance of ensuring that the defendant has a fair trial, of ensuring that the allegations against him are of sufficient clarity and particularity that they can be fairly left to the jury, and that he can have a fair opportunity of challenging them in what of course are difficult circumstances for the defence."
Mr Galloway accordingly submits that, whether the approach in relation to the burden and standard of proof of Lord Lane is adopted, or whether the approach set out in paragraph 22 of the judgment in EW is adopted, the judge was correct, both in the manner in which he directed himself and by reference to the circumstances of the case which he had correctly and comprehensively rehearsed.
(i) Even where delay is unjustifiable, a permanent stay should be the exception rather than the rule;
(ii) Where there is no fault on the part of the complainant or the prosecution, it will be very rare for a stay to be granted;
(iii) No stay should be granted in the absence of serious prejudice to the defence so that no fair trial can be held; (iv) When assessing possible serious prejudice, the judge should bear in mind his or her power to regulate the admissibility of evidence and that the trial process itself should ensure that all relevant factual issues arising from delay will be placed before the jury for their consideration in accordance with appropriate direction from the judge;
(v) If, having considered all these factors, a judge's assessment is that a fair trial will be possible, a stay should not be granted.