CRIMINAL PROCEDURE

A 78-year-old man whose extradition to the Falkland Islands was sought in order to prosecute him for 12 alleged historic sexual abuse offences from the mid-1980s was bailed. The unusual features of the case, including the individual’s ill-health and his caring responsibilities, and the fact that he had not offended since completing a sex offenders’ treatment programme in 2002, meant that the risks of him absconding or committing further offences were minimal.

Convictions for sexual offences were safe despite the fact that material about the complainant had not been disclosed to the defence, because the picture of the complainant put before the jury was nevertheless a sufficiently accurate one.

The court considered issues relating to the impact of the Youth Justice and Criminal Evidence Act 1999 s.28 and the pre-recorded cross-examination of vulnerable child witnesses, and provided guidance regarding best practice for trial judges and advocates.

A Lucas direction would not have been appropriate, or helpful to the defendant. where an allegation of sexual assault turned wholly on the jury’s assessment of the respective credibility of the defendant and the complainant.

To establish “possession” for the purposes of the offences of possessing indecent images of children or extreme pornographic images, the prosecution had to establish (a) that the images were within the accused’s custody or control so that he was capable of accessing them, and (b) that he had known that he possessed images. Where unsolicited images were sent to the accused by the messaging application “WhatsApp” and automatically downloaded to his phone’s memory, it was highly likely that (a) would be made out; whether (b) was made out would depend on whether he knew he had received images.

While a judge’s summing-up could have been more clearly expressed, it was not confusing, did not advocate the prosecution case and it did not render the trial unfair. Trial judges were reminded of the guidance and draft directions contained in the Crown Court Compendium. Those directions provided judges with an invaluable resource which, when adapted to the facts of a case, provided an appropriate framework for a legally correct direction.

A prosecutor’s decision not to charge a man with the rape of a woman with learning difficulties was not irrational. The circumstances of the man’s acquittal some years earlier on charges of sexual activity with a person with a mental disorder impeding choice were such that the prosecutor had been right to conclude that the man would be able to establish that a second prosecution was an abuse of process.

The court allowed Romania’s appeal against the grant of bail to a requested person who had been convicted and sentenced to seven years’ imprisonment for sexual offences against an 11-year-old girl whilst working as her dance teacher. The court was satisfied that there were substantial grounds to believe that the requested person would fail to surrender at the extradition hearing.

Where an offender had distributed an indecent photograph of a girl under the age of 18 contrary to the Protection of Children Act 1978 s.1(1)(b), but it was unclear if the girl was under 16, a notification requirement should not have been imposed on him. He had not been convicted of an offence listed within the Sexual Offences Act 2003 Sch.3, which was necessary to impose a notification requirement. There was a clear discrepancy between those provisions, and the court would have to be alive to that discrepancy when discharging its duty under the Criminal Procedure Rules and, if necessary, decide whether a child’s exact age could be resolved.