M had faced allegations of historic sexual abuse, the earliest incident concerning events from 1950, 66 years ago. M’s arrest and charge had been announced with a fanfare of publicity, his subsequent acquittals passing virtually unnoticed. Is it ever too late to prosecute historic allegations? Given the finite investigative resources available and the prevalence of more recent and other forms of criminality, is there a need for a fundamental reappraisal of how we deal with such cases?

Very old defendant, very old allegations

M was headmaster of a boarding school in the 1960s and 1970s. He had been tried four times for similar allegations in the 1970s. All previous proceedings resulted in acquittal or dismissal of charges. Complainant pressure led to a Crown Prosecution Service (CPS) review in 2013. Witnesses were re-interviewed and enquiries made to identify further potential evidence. Fresh allegations emerged, including from two further complainants, now pensioners, who had provided character evidence for M in the 1970s proceedings. They now alleged abuse by M from their childhood in the 1950s. Initial legal advice not to proceed was reversed, and M was charged with 50 offences involving 19 separate complainants, spanning a 20-year period.

Following pre-trial legal argument, the trial judge ruled that some allegations should be stayed, due to the loss of documents and the impossibility of now having a fair trial. The Crown challenged the decision, unsuccessfully, in interlocutory proceedings in the Court of Appeal ([2015] EWCA Crim 1928). The trial judge then ruled that any trial would include a maximum of four complainants, stating that the proceedings were at the limit of what was acceptable in terms of M’s meaningful participation in the trial process. M suffered from a catalogue of age-related ailments, and a range of special measures were introduced. Statements had to be read out to M as he was virtually blind. Audio amplification equipment was used as he was 90% deaf. M’s powers of processing information and recall were inhibited by Parkinson’s disease, requiring unnatural pauses in the evidence as each question and answer had to be repeated. M’s short-term memory was greatly diminished, and at the beginning and end of each court session the evidence had to be summarised to him by counsel. Court sitting was limited to 45-minute sessions, with a maximum of four sessions a day. Sitting days were often much shorter on the advice of ever present doctors and court appointed intermediaries.

Two trials progressed to jury verdicts. Both resulted in acquittals. Undeterred, the Crown sought a further trial, and was only prevented from doing so with the judge’s intervention in staying all further proceedings.

Practice past and present

It used to be unusual to try cases arising from allegations over 30 years in age; not any more. There are many reasons for this. There is more understanding of the genuine reasons for delaying complaints and in the current climate, complainants are more willing to come forward. The change in the law no longer requiring corroboration of a complaint is another factor. The requirement for a corroboration warning was abolished by statute (in relation to the unsworn evidence of children by s 34 of the Criminal Justice Act 1988, and in relation to complainants of sexual offences by s 32 of the Criminal Justice and Public Order Act 1994). Prior to abolition, a judge was required to give technical directions to a jury on corroboration, which were often bewildering in their complexity. Deterrence is another factor: no one should be seen to avoid or be above justice purely due to the passage of time. The authorities themselves have targeted historic, high-profile abuse. Operation Yewtree and the startling extent of the exposure of the activities of celebrities and the success in securing convictions against many, has provided encouragement to genuine victims to come forward. On 21 August 2016 Radio 1 DJ Chris Denning pleaded guilty to 21 offences of historic sexual assault on young children, admissions made while serving time for previous similar offending. On the other hand, other high-profile cases not resulting in conviction have had devastating reputational consequences.

Current framework for prosecuting

The CPS adopts the two-stage test in every prosecution, considering first the sufficiency of evidence, then the public interest. When considering the evidence in allegations of rape, lawyers must adopt the ‘merits-based approach’, and ask whether the evidence is sufficient to merit a conviction given what is known about the defence case. CPS Guidance on Rape and Sexual Offences is focused on the complainant, with little mention of the suspect. Reviewing lawyers are understandably hesitant to pass judgement on the quality of a complaint, any complainant having the right to seek a review of a decision not to charge. In reality, if a complaint with any detail is made, and there is no material that fundamentally undermines or contradicts the account, it will almost always overcome the evidential test.

CPS Policy Statement on Rape and Sexual Offences encourages lawyers to overlook evidential inadequacies, stating that ‘rather than merely spotting the evidential failings, prosecutors are encouraged to think “well, there is a problem here but is there any way that we can improve the evidence so that the Code standard is met?”’ (The Decision to Prosecute, Chapter 1). Any allegation of serious sexual assault will generally also satisfy the public interest test simply by virtue of it amounting to an allegation of serious offending and, if proved, it being of a type that in most circumstances would merit a sentence of immediate imprisonment.

The age of the complaint, or of the accused himself, will never of itself be a reason not to prosecute. The case will progress to the Crown Court, and only then will the first effective check on such prosecutions kick in, by way of representations to the judge in dismissal proceedings – regarding the sufficiency of evidence – or abuse of process proceedings, the burden resting with the defence to prove that the accused either could not receive a fair trial, or it would be unfair for him to be tried.

Pressure on the system, and on those involved

The surge in complaints, coupled with a system that generally permits the cases to proceed to the Crown Court, has led to a leap in prosecutions. Quarterly Criminal Justice updates published by the Ministry of Justice (MoJ) and the Office for National Statistics (ONS) between 2013 and 2015 indicate that at a time when overall cases prosecuted has been steadily decreasing, those involving sexual allegations have been rising, and rising markedly. More than half of all cases now heard in the Crown Court concern sexual allegations, and the proportion is increasing.

Trials involving historic allegations are fraught with legal and practical difficulties. They also tend to take longer to try than any other type of cases, except fraud and forgery (MoJ/ONS Report, January 2013). The effect of wrongful convictions has been recently highlighted. On 20 July 2016 the Court of Appeal overturned the conviction of David Bryant, convicted in 2013 and sentenced to six years’ imprisonment for an allegation from 40 years ago. Evidence in prosecution hands showed the complainant to be a fantasist, a proven liar, suffering from an underlying personality disorder, but none of this material was disclosed at trial. Mr Bryant was exonerated, but only after spending three years in prison. Historic complaints provide fertile territory for such miscarriages of justice. Research into the effect of the passage of time on memories, especially when punctuated by physical or mental trauma, shows how memories can disintegrate, change or become fluid with time (see eg ‘Decay theory’, and ‘Memory Retrieval and the Passage of Time: From Reconsolidation and Strengthening to Extinction’ [Inda, Muravieva and Alberini], Journal for Neuroscience, 11.2.11).

In some CPS areas the demand placed on lawyers has reached crisis levels. Many lawyers are tasked solely with assessing and managing historic complaints. Investigative resources are diverted. Often specialist officers trained in investigating organised and international crime find themselves seconded to historic abuse cases, seeking to track down potential witnesses from another generation, searching for contemporaneous social and medical records which may no longer exist or are incomplete, all in an effort to satisfy the demanding disclosure requirements imposed by the Criminal Procedure and Investigations Act 1996, accompanying Code of Practice, and the Attorney General’s Guidelines.

Back to the future

Every other European country imposes a statutory limit on the prosecution of historic abuse offences, generally starting at 12 years and escalating to 20 years where the complainant is a child. It should hardly be controversial to at least question whether it is time for a similar approach here, with resources instead focused on more recent abuse allegations and other serious crime.

Exceptions to a general rule might include cases where there is corroborative evidence; recent forensic discovery (eg from medical advances); where the central issue is not whether an incident occurred but the circumstances (eg consent); confession or admission; some other good and justifiable reason (eg evidence of an organised paedophile operation), or clear public interest. This is not proposed as an exhaustive list, but rather a prompt for debate. At a time when the UK has chosen to turn its back on Europe, is this one area where we should be considering marching in step?

Contributors Richard Jory QC, 9-12 Bell Yard, London and Sam Jones, Guildhall Chambers, Bristol

Best practice points

  1. Identify and address the range of potential special measures at an early stage.
  2. Consider using an intermediary from the outset, and arranging a pre-trial meeting between the intermediary and suspect.
  3. Ensure medical evidence is relevant and up to date, and consider the level of court attendance required of medical experts.
  4. Timetable debrief periods to ensure the suspect has kept pace with proceedings and details of evidence.
  5. Provide daily updates to the judge summarising relevant information regarding the suspect’s health, being careful to maintain privilege when doing so.
  6. Be flexible: circumstances may well change during the course of proceedings.