Historic Sexual Offences

The difficulty of ensuring a fair trial in respect of allegations that are sometimes decades old is an obvious one. The courts have made it clear that it is important to understand the unique reasons why victims of sexual offences may not come forward initially. In that context, the courts have regularly found that a fair trial is possible because of the Judge’s ability to direct the jury and regulate the fairness of the proceedings [ R v F(S) [2011] 2.Cr.App.R. 28; R v S (SP) [2006] 2 Cr.App.R. 23; R v Smolinksi [2004] 2 Cr.App.R. 40].

That said,  each case has to be considered on its own facts, and there are still circumstances where the delay will render any trial unfair, particularly where a crucial piece of evidence has been lost (See for example Sheikh v The Crown [2006] EWCA Crim 2625)..

In addition to the particular difficulties presented by delay, allegations of a historic nature also often involve defendants who are physically infirm or whose mental deterioration is significant. The traditional method of dealing with defendants who are ‘unfit’ to be tried focuses on a defendant’s mental health difficulties (Criminal Procedure (Insanity) Act 1964)..

These cases often do not fall within that category but nevertheless present particular challenges. Notwithstanding the importance of proper medical assessments and the adjustments that can be made to the trial process, the boundary between a fair trial and an oppressive proceeding is sometimes approached. What to do with a defendant who is fit, but only for 30 minutes at a time, meaning any trial last weeks and weeks and weeks, or any cross examination of a complainant lasts days and days? Understandably given the serious nature of the allegations, the courts appear currently reluctant to interfere on the basis of physical infirmity alone (See for example R (on the application of Janner) v Westminster Magistrates Court [2015] EWHC 2578 ).

The advent of the use of video links into people’s homes may provide solutions to some of the problems with the recent amendments to the Criminal Justice Act now permitting defendants to give evidence in this way if in the interests of justice (Section 51 Criminal Justice Act 2003 as amended on 28th June 2022).