SR [2019] EWCA Crim 887

The appellant’s half-sister made allegations of sexual assault against him but refused to make a formal complaint or take part in an ABE interview (although in evidence she was adamant she had been interviewed). He was interviewed, denied the allegations and put forward an account the police thought was plausible, and they noted doubts with the veracity or credibility of the complaint on the police log. No further action was taken but 4 years later further allegations were made. The officer from the original investigation had left the police and refused to speak to the new investigation and the appellant’s interview was missing.

Trial counsel applied for the indictment to be stayed on the basis of abuse of process, the appellant’s case relied upon the credibility of the complainant and questions needed to be asked for the doubts expressed by the original investigating officer as to the veracity of the complaint. The application was refused on the basis the appellant could receive a fair trial, the jury could judge for themselves the credibility of the complainant, relevant parts of the log could be put before them and the appellant’s account was at least summarised in the log.

The grounds for appeal were that the prejudice suffered to the appellant in his defence could not fairly be rectified by the directions given to the jury and the proceedings should have been stayed as an abuse. The jury had not been told that the original social worker also had doubts, and nothing was said of any attempts to talk to her, the original officer was said to be wilfully obstructive, so the social worker’s view was more important given the criticism of the officer’s professionalism. It was also argued that the full effect of the missing interview and ABE was not explained to the jury and the serious prejudice caused.

Held: it was accepted that the loss of the earlier interview caused some prejudice to the appellant and that some reference should have been made to the absence of the social worker (although trial counsel didn’t say anything at the time), other missing evidence did not impact on fairness. This was a “troubling case” given the delay, absence of the original police officer, issue of the earlier ABE and the absence of the appellant’s earlier interview. Considering the totality of the trial process the Court was unable to conclude that the convictions were unsafe, and the appeal was dismissed.