Submitted by Penney Lewis* (CA 101)
Should there be a time limitin terms of number of years since the alleged offence took placeon prosecution of cases of child abuse?
1. In order to assess whether imposing a time limit would be the best means of ensuring the fairness of trials and avoiding miscarriages of justice, I will examine the current legal response to delay in cases of alleged child sexual abuse and whether it adequately ensures a fair trial and is consistent with the presumption of innocence, as required by Article 6 of the European Convention on Human Rights.1 The mechanism by which the legal effect of delay comes before the criminal courts is by way of an application by the defendant to the trial judge for a stay on grounds of abuse of process. (If unsuccessful, the alternative, although lesser remedy is often granted of a direction by the trial judge to the jury as to the effect of the delay on the defence.) In order to obtain a stay, the defendant must show "on the balance of probabilities that owing to the delay he will suffer serious prejudice to the extent that no fair trial can be held."2 In cases involving delayed prosecutions for child sexual abuse, the Court of Appeal has sidelined the "fair trial" test in favour of a test based on the justifiability of the delay. A representative example is the 1995 case of Wilkinson, in which Lord Taylor CJ wrote:
Unhappily, this court has had a number of cases in which there has been great delay before offences of sexual abuse, or alleged sexual abuse, within the family context, have been brought to trial. This is not surprising. In L.P.B. (1990) 91 Cr App R 359, Judge J said at p 361:
"The delay here is the result of reticence by the alleged victim in reporting the allegation. Such delay is not uncommon and is wholly understandable. It takes considerable courage for a young victim of sexual indecency at the hands of a parent or step-parent to report it. Delay is directly connected with and may well be a consequence of the offences themselves and the relationship between the victim and the alleged offender and indeed other relationships within the family".
Furthermore, there are casesand this is one of themin which the man accused is himself said to be responsible for the delay by making threats or promises to the alleged victim, or relying upon loyalty or shame in the victim to maintain secrecy.3
2. In an article in the Law Quarterly Review, Alastair Mullis and I accepted that the reasons for delay cited by the Court of Appeal were consistent with the psychological literature. We agreed that:
Such delay is justifiable and that in many cases it will be attributable to the actions of the abuser, either directly through threats, or indirectly, through shame or embarrassment, for instance. However, this kind of analysis is premised upon either acceptance or an assumption that the abuse has been perpetrated on the complainant. Moreover, when the court takes into account the defendant's contribution to the delay, the underlying assumption must be that the abuse has been perpetrated on the complainant by the defendant. Is such an assumption appropriate in a criminal trial, the primary goal of which is to determine whether the defendant did commit the acts alleged? Does this kind of assumption violate the presumption of innocence? Granted, it is the trial judge rather than the trier of fact who engages in this reasoning process. Nevertheless, in determining whether the defendant can receive a fair trial, surely a trial judge who has already assumed that the defendant is guilty by accepting that the complainant's reticence is justified by virtue of the abuse she suffered at the hands of the defendant is more likely to conclude that the trial will be fair than a trial judge who has made no decision as to the defendant's guilt.4
3. For this reason we argued in favour of a "fair trial" test, in which the trial judge would focus on the defendant's ability to receive a fair trial, and the particular difficulties which the defendant might face as a result of the delay.5 "If the overriding consideration on a defendant's application for a stay is truly to be the fairness of the trial, then examination of the complainant's lack of fault, or the defendant's culpability should be avoided."6
4. I suspect that the judicial focus on the justifiability of the delay in the English courts is born of frustration. Judges face a defendant who argues that he should not be tried due to delay, and yet is likely to be the cause of that delay. It is undoubtedly difficult to ignore the defendant's probable role in creating the problem he now seeks to exploit. Nevertheless, to give in to this frustration may risk the legitimacy of the criminal process and even a miscarriage of justice.
5. In addition to the principled objection to the justifiability approach, it also lacks substance. Once the complaint is assumed to be true, then delay in complaining will invariably be justified, as an effect of the sexual abuse assumed to have been perpetrated on the complainant by the defendant.7 The decided cases in England and Wales seem to bear this out.8 Thus the "fair trial" test should be the operative method of decision-making in this context, both in order to maintain the presumption of innocence, and because it is the only real test which can be applied.
6. The stay for abuse of process is not proving an adequate means to protect the fairness of the trial in its current form. Moving the focus away from the justifiability of the delay towards the fairness of the trial will go some way to achieving this goal. It may be that greater appellate scrutiny as a result of the Human Rights Act 1998 will accomplish this.
7. Statutory intervention (or prosecutorial guidelines) imposing a time limit on these prosecutions would be too blunt a tool to ensure the fairness of trials. Instead, we should concentrate on making the legal remedy available to the defendant one which truly protects his right to a fair trial and to be presumed innocent until proven guilty by requiring a prospective examination of the fairness of his trial.
* Module Leader, LLB course Principles of the Law of Evidence, School of Law, King's College London. Author or co-author of three articles on delayed criminal prosecutions for child sexual abuse: Penney Lewis and Alastair Mullis, "Delayed Prosecutions for Childhood Sexual Abuse" (1999) 115 Law Quarterly Review 265; Penney Lewis and Alastair Mullis, "Supporting Evidence and Illusory Double-Counting: Recovered Memory and Beyond" (2001) 5 International Journal of Evidence and Proof 111; Penney Lewis, "The Presumption of Innocence in Delayed Criminal Prosecutions for Childhood Sexual Abuse: Lessons from Ireland" (2001) Criminal Law Review 636.
1. The text of this evidence is in part derived from my article "The Presumption of Innocence in Delayed Criminal Prosecutions for Childhood Sexual Abuse: Lessons from Ireland" (2001) Crim L Rev 636-643.
2. Attorney-General's Reference (No. 1 of 1990) (1992) 1 QB 630 at p 644.
3. Wilkinson (1996) 1 Cr App R 81 at p 84.
4. Penney Lewis and Alastair Mullis, "Delayed Prosecutions for Childhood Sexual Abuse" (1999) 115 LQR 265 at pp 278-79. See also, the discussion of the decision of the Privy Council in Attorney-General of Hong Kong v Cheung Wai-bun (1994) 1 AC 1 in Lewis and Mullis, ibid at pp 279-80.
5. Examples include difficulties in finding witnesses who could corroborate the defendant's account or contradict the complainant's story; changes to important locations; destruction or loss of documentary evidence and the absence of evidence which might have failed to corroborate the complainant's account. For specific examples, see Lewis and Mullis, ibid. at pp 275-76.
6. Ibid at 279.
7. For a full discussion of the reasons why the effect of abuse on complainants is to make it very difficult for them to complain, see Lewis and Mullis, ibid at pp 267-68.
8. For cases in which the appeal against refusal of a stay was denied, see, eg, Metropolitan Stipendiary Magistrate ex parte Director of Public Prosecutions June 18, 1993, QB; Dutton (1994) Crim LR 910; R (1994) Crim LR 948; Birchall, The Times, March 23, 1995; Wilkinson (1996) 1 Cr App R 81; F (1996) Crim LR 257; B (1996) Crim LR 406; King (1997) Crim LR 298. See also Lewis, "The Presumption of Innocence", above n 1 at pp 642-43 for a fuller discussion of this point.