Friday Law Report: Warning need not always be given

16 July 1999 Regina v M Court of Appeal, Criminal Division (Lord Justice Rose, Vice President, Mr Justice Wright and Mr Justice Kay) 17 June 1999

IN TRIALS of defendants accused of sexual offences where there had been a long delay between the commission of the offences and complaint being made, although a clear warning to the jury would usually be desirable as to difficulties for the defence which might have resulted from that delay, the precise terms of the warning could be left to the good sense of trial judges. In some cases, however, such a warning might not be necessary, and its absence would not necessarily render a conviction unsafe.

The Court of Appeal dismissed the appellant's appeal against his conviction in 1998 of 12 serious sexual offences against two girls aged under 13 and a boy under 16, for which he was sentenced to 15 years' imprisonment.

The victims were the three children of a woman with whom the appellant had had a relationship, and whom he had married in 1976. All the allegations in the indictment related to conduct between September 1972 and May 1985.

The appellant appealed against conviction on the ground, inter alia, that the judge had dealt inadequately with the question of delay in his summing up. It was contended on his behalf that the judge's directions to the jury were too neutral, in that, although he had drawn attention to the delay between the commission of the offences and the complaints to the police in 1995, he had not sufficiently emphasised the disability to the defence arising from delay.

Counsel for the appellant had relied on the decision in R v Percival (unreported, 19 June 1998), submitting that that in the light of that judgment specific matters of difficulty raised at the trial which had been caused or contributed to by the delay should have been laid before the jury in the context of the Crown's duty to prove its case.

Tmothy Hartley (Registrar of Criminal Appeals) for the appellant; Michael Smith (Crown Prosecution Service) for the Crown.

Lord Justice Rose VP said that it was apparent that the judgment in Percival had been directed to the summing up in that particular case. No attempt by the court to lay down principles of general application in relation to the way in which judges should sum up in cases of delay could be found in the judgment. The court accordingly wished to discourage attempts being made, with apparently increasing frequency in applications and appeals to the Court of Appeal, to rely on Percival as affording some sort of blueprint for summings up in cases of delay.

The case afforded no such blueprint. Indeed, in the area of delay in reporting sexual offences, as in so many others, prescription by the Court of Appeal was best avoided. Trial judges should tailor their directions to the circumstances of the particular case. In a case where there had been many years of delay between the alleged offences and trial, a clear warning would usually be desirable as to the impact which that might have had on the memories of witnesses, and as to the difficulties which might have resulted for the defence.

The precise terms of that warning and its relationship to the burden and standard of proof could 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 might be unnecessary and its absence, where the evidence was cogent, would not necessarily render a conviction unsafe, particularly when counsel's submissions at trial had not highlighted any specific risk of prejudice: see R v H [1998] 2 Cr App R 161.

That approach was entirely consonant with the observations of Lord Bingham CJ, giving the judgment of the Court of Appeal in R v Lloyd (unreported, 30 November 1998). Amended guidance as to directions on delay would shortly be issued by the Judicial Studies Board.

The directions given by the judge in the present case had been properly tailored to the circumstances. They were unimpeachable, and the conviction could not be regarded as unsafe.