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Ben Hargreaves looks at the case law from R (Ebrahim) v Feltham MC  2 Cr.App.R. 23 through to R v Hewitt  EWCA 1247 and considers whether there is any prospect of turning the tide on the diminishing scope for successful abuse arguments in historic sex allegations.
R (Ebrahim) was a turning point in abuse cases, ruling that the circumstances in which a trial would “inevitably be unfair are likely to be few and far between” and that criminal trials are well placed to cope with argument about lost evidence.
For the last twenty years there has been a deliberate and effective deployment of Ebrahim by the Crown and Appeal Courts. The idea that a stay would be granted for even a significant claim of potential evidential disadvantage has gone. Prior to Ebrahim, stays on the grounds of loss of material or even potential loss of the opportunity to find defence witnesses could lead to a stay on the grounds of unfairness.
On one hand, the better understanding of the trauma suffered by victims of abuse with the accompanying factors of fear, inhibition and immaturity which leads to young victims to keep quiet perhaps until later adult life is better reflected by this approach. Complainants are not penalised by the delay. Other jurisdictions which formerly had a statutory limitation period for the prosecution of certain offences have followed suit: in 2013 the Netherlands removed all limitation periods for prosecuting sexual offences which carry a minimum term of 8 years.
However, while the change must be seen as positive in recognising the terrible effects of sexual abuse on young people, the bar for a stay has been raised so high now that this proper principle to prevent unfair prosecutions has all but disappeared.
It is clear that imposing a stay in situations of missing records is not a step that will be taken lightly; it will occur when the trial process, including the judge’s directions, is unable adequately to deal with the prejudice caused to the defence by the absence of the materials that have been lost. The court should not engage in speculation as to what evidence might have become unavailable but instead it should focus on “any missing evidence which represents a significant and demonstrable chance of amounting to decisive or strongly supportive evidence emerging on a specific issue”.
It is difficult to envision any circumstance where the trial process will not be able to cope with lost material. For example, in PR the trial judge allowed the case to proceed where evidence gathered by the police in 2002 – and accepted to be relevant to the defence – was destroyed by water and was therefore unavailable for trial in 2018.
The Court of Appeal have taken an equally strong line as can be seen in the judgement in PR. In DPP v Fell  EWHC 562 Gross LJ observed
“the burden of proof is on the party seeking a stay… the standard is a balance of probabilities … the party seeking a stay must make good to the civil standard that owing to the missing evidence he will suffer serious prejudice to the extent that no fair trial can be held … the grant of the stay is exceptional. It is effectively a measure of last resort. It caters for and only for those cases which cannot be accommodated with all their imperfections within the trial process.”
R v Hewitt perhaps demonstrates how courts will deal with such cases. It is well worth reading the judgment in full. Hewitt , 80, managed a care home. He was convicted of the rape of a resident that happened 37 years before. The allegations were made in 2014. Hewitt did have previous from 1995 for sexual assaults at the home committed in the 1970’s. On the fresh allegations he was indicted with rape against C, a second count of other rapes against C, the rape of another female and numerous sexual assaults against three boys. Unused material was served in August 2018 but the medical and social services records were not provided and in December 2018 it was confirmed that such records could not be provided. C alleged the incidents started at Easter and it was agreed by all parties that the only Easter this could have been was the one the Easter one month before H left.
The abuse of process application was heard by the judge at the end of the prosecution case. During the trial it had transpired that C had made a similar allegation against another person and may have got the events confused – hence the importance of that particular Easter. C was recalled as were other witnesses and cross examined in light of the new evidence. The application for a stay was refused by the trial Judge. H was convicted of the single count of rape against C but acquitted of the multiple count. The jury failed to reach verdicts on other counts.
Despite the Crown accepting that the disclosure exercise had been “thoroughly imperfect”, that the sensitive unused schedule had not been reviewed by the CPS, and that missing documentation was almost inevitably going to be unavailable after such a delay, the Court of Appeal found that the trial judge was perfectly placed to assess whether the trial was fair and was entitled to conclude that the trial process could compensate for any prejudice arising from the delay.
R v Burke  EWCA Crim 29 is an example of where an abuse has been upheld but is now dismissed as a case that merely “turns upon its own facts” rather than setting a precedent. Here a defendant was charged with historic sex offences against boys in a children’s home where he had worked 30 years beforehand. The trial judge’s refusal to stay the proceedings was upheld in relation to all but one complainant, KS, whose allegation differed because it related to one single occasion when the defendant was said to have assaulted KS after he was returned to the home by the police after absconding. Available records showed he had absconded more than once in the time period. But, absent records from the home, it was not possible to tie the dates down – so the Court did allow a stay. However, it must be added that it was not solely because of the absent records, but also because fresh evidence had cast a new light upon KS.
The reality is that while the law allows a stay to be granted, in practical terms it arises in exceptionally rare cases. Practitioners are perhaps better served emphasising that there is lost material, illustrating what it might have shown and the disadvantage that it puts the defendant at rather than seeking to persuade a court that the case merits a stay. This tactic will force the trial judge to deliver a summing up that directs the jury to consider the unfairness presented to the defence by the loss of material. If the summing up is insufficient it will give the opportunity to appeal.
Ben Hargreaves is a highly-regarded leading junior, with a practice encompassing serious sexual offences, murders, and high-end financial crime.
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