DELAY

A custodial sentence of 9 years and 6 months and a further probation period of one year imposed on a 91-year-old former monk for historical offences of indecent assault, buggery and attempted buggery was unduly lenient, and was replaced with a custodial term of 12 years.

It had not been an abuse of process to prosecute an elderly man for an historic offence of sexual assault which had been committed against a seven-year-old family member. The 23-year delay between the offence and trial did not of itself justify a stay of prosecution, and the judge had been entitled to determine that the offender, who suffered from dementia and other physical ailments, was fit to plead and stand trial.

The requirement in the Criminal Procedure Rules 2014 Pt 67 to give immediate notice of an intention to seek permission to appeal against a terminating ruling was a mandatory pre-condition to establish appeal jurisdiction. Prosecution counsel’s failure to give such notice, where he had withdrawn from the case due to professional embarrassment but remained ostensibly holding the prosecution brief, meant that the court lacked jurisdiction to consider an application for permission to appeal.

The court granted leave to prefer a voluntary bill of indictment under the Administration of Justice (Miscellaneous Provisions) Act 1933 s.2(2)(b) against the defendant, Gary Glitter, on counts of alleged historic sex abuse. Acknowledging the exceptional nature of its decision, the court held that it was in the interests of justice, and the defendant would not be denied a fair trial by reason of delay.

An offender’s convictions for historic offences of rape, buggery, attempted rape, indecent assault and murder were deemed safe, as the judge had given the jury adequate directions as to the dangers of delay and its effect on the evidence.

A 30-year delay on the part of a complainant did not render an offender’s convictions for indecent assault, indecency with a child, and rape unsafe as the judge had sufficiently dealt with any prejudice to the offender in his summing up and directions to the jury and there had been other evidence that supported the complainant’s evidence.

The Court of Appeal in Northern Ireland overturned an appellant’s convictions on three out of eleven counts of historic sexual abuse on the basis that they were unsafe. It found the remainder to be safe, rejecting arguments that the judge had erred in permitting evidence of reprehensible behaviour and that a fair trial had been rendered impossible by the passage of time.

Although the delay in the appellant’s prosecution for historic sexual offences was extreme, the resulting missing evidence was not of a degree of cogency that could amount to a finding of serious prejudice in its absence. The trial judge had given the jury appropriate directions regarding the effect of the delay and the appellant’s convictions were safe.

Where there had been a long delay in bringing a prosecution for indecent assaults, the effect of the delay on the perpetrator’s identification was often best addressed by a short, self-contained direction that focused on the defendant. Although a judge’s direction on the effect of delay on the identification of a Buddhist monk who had sexually assaulted a nine-year old girl in a temple 34 years ago had not been structured in the most appropriate way, it had not amounted to a misdirection and the resulting convictions for indecent assault were safe.