Court of Appeal in Northern Ireland Decisions

Delay

"Another thing I wanted to say to you was, consider also the period of time that has elapsed since the 90s when these offences are dated – that is to say, the interval of time of something like 15 years, to either side. The difficulty that that creates in terms of not only the prosecution in relation to what were young girls giving evidence of what happened to them 15 years ago, but more particularly in relation to the defendant, who is having to deal with matters which are alleged to have occurred years ago. As Mr McCrory pointed out, it might be a different thing if an allegation had been made about a person, about something they did last Friday. It might be quite an easy matter for that person who is accused to turn round and produce alibi evidence and say, 'I was not even in that house last Friday, I can prove it, I was at work'. How much more difficult is it after a period of years to try and disprove evidence? Bear that in mind."

Mr Barlow (who appeared for the appellant before this court but not at the trial) relied on the decision of the Court of Appeal in The Queen v Brian Percival 97/6746/X4 (19 June 1998) where the court held that the judge's directions fell short of what would have served to counter the prejudice occasioned to the defence by reason of the delay. Holland J. who delivered the judgment of the court said;

"True, a developing concern with and, understanding of sexual abuse is reflected in a growing experience of cases featuring delays that at one time would have been regarded as intolerable. That experience and the underlying problem of unreported abuse has served to encourage experienced judges to be more liberal in their concept of what is possible by way of a fair trial in the face of delay, but as we think there is a price, namely safeguarding the defendant from unacceptable resultant prejudice by a 'pro active' approach in terms of directions. Before a conviction following such a trial can appear to be safe, it is necessary to be satisfied that the judge has confronted the jury with the fact of delay and its potential impact on the formulation and conduct of the defence and on the prosecutions' fulfilment of the burden of proof."

In the later case of R v Brian M (2000) 1 Cr. App. R. 49 at page 57 Rose LJ said:

"It is apparent that the judgment in Percival was directed to the summing up in that particular case. We find in the judgment no attempt by the court to lay down principles of general application in relation to how judges should sum up in cases of delay and we accordingly would wish to discourage the attempts being made, with apparently increasing frequency, in applications and appeals to this court to rely on Percival as affording some sort of blue print for summings-up in cases of delay. It affords no such blue print. Indeed in this area, as in so many others, prescription by this court as to the precise terms of a summing-up is best avoided. Trial judges should tailor their directions to the circumstances of the particular case. In the case where there have been many years of delay between the alleged offence and trial, a clear warning will usually be desirable as to the impact which this may have had on the memories of witnesses and as to the difficulties which may have resulted for the defence. The precise terms of that warning and its relationship to the burden and standard of proof can be left to the good sense of trial judges with appropriate help and guidance from the Judicial Studies Board. In some cases, however such a warning may be unnecessary and its absence, where the evidence is cogent, will not necessarily render a conviction unsafe, particularly when counsel's submissions at trial have not highlighted any specific risk of prejudice."

In his closing speech to the jury leading counsel for the appellant said this about delay:

"These offences, members of the jury, took place, as I say, a number of years ago. His Honour no doubt will direct you on the significance of delay. Does delay make you wonder whether or not there is truth or veracity in the story at all? Delay can also prejudice the defence, because, for example, if these complaints had been made at the time or near the time, the defence might well have been in a better position to defend itself than just saying 'well, it did not happen'. You have heard, for example, the defendant says that he was working in a … factory, or that he was at the tech, or wherever, and the various things he was doing at the time. If an allegation had been made, for example, at the time, in relation to a specific date or a time or a place, he might have been in a position to produce alibi evidence or something of that nature. But he is not in that position, because he is disadvantaged now by these allegations coming all these years later, there are some specific allegations, and there is a veritable avalanche of specimen charges. He is not in a position to address them in that way. So, members of the jury, when you are deliberating, consider the effect and the impact that delay might have had in this case."

While the judge made sure that the jury appreciated the difficulty that a defendant faces so far as remembering where he was at a time in the distant past and therefore in producing alibi evidence he did not ask the jury to reflect on whether delay served to cast any room for doubt as to the complainants' reliability. We consider that the jury should have had it drawn to their attention that because of the delay the evidence had to be examined with particular care before they could be satisfied of the guilt of the appellant on any of the counts on the indictment. However, we would not have regarded this omission, in itself, as providing a reason for setting aside the convictions.

Good character

"The defendant in this case has asked about whether or not he had a clear record. That would open the door for the Crown to adduce a bad record if he had a bad record. The Crown has not done that, so from that you can take it he has a clear record. That is of twofold relevance. First of all, it is less likely, other things being equal, that the accused would commit the criminal offence. Secondly, where his credibility has to be weighed, he is more likely to be telling the truth than if he were shown to be a man of bad character. The weight of previous good character varies with the type of offence. Under general circumstances, it is always a relevant matter when weighing the question of guilt or innocence."

This direction deals with the first and second limb of a good character direction, as they are sometimes described. In a case such as this where a considerable length of time has passed since the date of the alleged offences and there was no suggestion that any similar allegations had been made against the appellant the jury should have been told that he was entitled to ask them to give more than usual weight to his good character when deciding whether the prosecution had satisfied them of his guilt. In the passage of the summing up which preceded the reference to good character the judge gave the normal direction on the burden and standard of proof. In a case of delay such as this we consider that more was required along the lines that we have indicated.

Contamination and Collusion

Demeanour

"To allow such evidence to be given merely because it is said that it could show consistency or inconsistency with the complainant's account obscures the fact that, unless there is some concrete basis for regarding the demeanour and states of mind described by the witnesses as confirming or disproving that sexual abuse has occurred, it cannot assist a jury bringing their common-sense to bear on who is telling the truth."

The court held that the evidence did not render the conviction unsafe as the judge had told the jury emphatically that the evidence about demeanour and incontinence in no way confirmed what she had said.

Separate consideration

"Where however the Crown do not rely on similar fact and the charges are not severed, it is essential that the jury is directed in clear terms that the evidence on each set of allegations is to be treated separately and that the evidence in relation to an allegation in respect of one victim cannot be treated as proof of an allegation against the other victim. If such a warning in clear terms is not given there is the risk that the jury may wrongly regard the evidence as cross admissible in respect of each separate set of allegations, and may, as a consequence, rely upon what amounts to no more than the evidence of propensity as evidence of guilt."

Nelson J. also said in R v D "A sensible overview of the judge's directions must be taken, rather than a minute analysis capable of depriving the direction of its ordinary meaning."