Piers Morgan once asked William Roache about bedding 1000 women. Roache gave no clear answer. The prosecution were prevented from asking Roache the same question in the recent rape trial even though his evidence appeared different from what he had intimated on TV. Why? Because Roache was on trial for rape not for what we used to call underage sex and the issue in the trial was whether the alleged events happened at all. To reach a conclusion the jury had to be directed to be sure on evidence that was inconsistent. They also had to be directed that the offences were rape and there was no alternative.
It is important to understand that in the UK, old allegations are tried under the old law and it has major limitations. In the 1970’s, underage consensual sex could not be prosecuted unless the girl complained within 12 months. Statistically, most sex crime complaints are made 5 years or more after the event. This means that only non-consensual allegations can be tried now as we are many years on.
In the 1970’s the law required corroboration of a complaint. That has been abolished but it means that cases were not pursued at the time as generally sex takes place between two people so often there was no corroboration. Even if there was corrobration, cases were not investigated in a way which we would consider proper today; attitudes have changed within society as a whole and particularly within the police post-Heilbron and post-Stern. Cases prosecuted now are inevitably affected by the delay which can affect the quality of the evidence. It can be hard to remember what happened 30 years ago and often relevant records (which might show opportunity) are destroyed.
Commonly perpetrators were in positions of trust or authority – parents, priests, teachers, care workers and now celebrities like Stuart Hall. In the past children who made allegations against people in such positions were disbelieved. Of course many children simply did not even dare to complain. Nowadays, people feel much more able to complain and allegations of historic abuse are coming regularly before the courts. Anyone who is the victim of past abuse can still go to the police. This may not lead to a successful prosecution but, without a complaint, there is nothing to investigate. After so much time, such cases are difficult but not impossible to prosecute. It all depends on who or what is available to give evidence and what the suspect says about the allegation.
Those accused have a right to a fair trial and the evidence is tested in court. Delay, of itself, is not a ground to stop a case. For those of us regularly appearing as lawyers in such cases, in preparing to prosecute or defend a sexual offence some or all of the following questions might have to be answered:
(1) Adverse publicity. Alleged sexual offending often attracts adverse publicity. Since the decision in R v Abu Hamza, where, although not a sex crime trial, the trial was considered fair despite considerable adverse publicity, it is unlikely that an application based on adverse publicity alone would succeed. The courts have had to adapt to the largely unregulated internet where expressions and views are routinely broadcast. It will depend on the individual case whether the publicity is adverse, how the trial can be managed and what directions can be given to the jury to ensure there is a fair trial. Tosh on twitter cannot be allowed to risk a prosecution so most trials will go ahead with robust directions to the jury to decide the case on the evidence given in court.
(2) Are any relevant witnesses unavailable/uncontactable/dead? This might be important where the prosecution says that a sexual offence occurred on a particular date and the witness could, for example, provide an alibi for the defendant or where the recipient of a complaint is not available for cross examination. Much will depend on the significance of the evidence that the witness might have been able to give if available.
(3) Are any relevant records available? This could include police, social services, educational, medical or telephone records and could include video/DVD/audio recordings. This will be particularly important where the allegation was previously reported (formally or informally) but not prosecuted and records have since been destroyed or lost or where the police have failed to seize potentially relevant material.
(4) Are the allegations sufficiently precise for the defendant to be able to answer them? However distressing, the complainant must be able to give some evidence to satisfy the ingredients of an offence.
(5) Is/was the complainant capable of giving a reliable account? The capacity, for example of a child, may well be in issue. In old cases it is important to consider the age of a complainant who was a child at the time of the alleged sexual offence. Medical and school records might demonstrate an element of unreliability at the time which would not be cured just by passage of time. Conversely, psychological records may reveal that the capacity of a witness has altered over time. Usually, however, the reliability of a witness is a matter for a jury.
(6) Is the defendant well enough to be tried? This is particularly important where the defendant is fit to plead but physically or mentally infirm. Elderly defendants often have heart and blood pressure problems which might make the stress of a trial fatal and/or they may suffer from atrophy of the brain or senility which might seriously affect their comprehension or recollection. Ill health/fitness to be tried will be a matter for evidence from appropriate medical professionals.
Each case has to be considered on its own facts and, if the delay has caused prejudice to the defence, it might be appropriate to stop a prosecution but mostly these problems are dealt with by directions to the jury from the judge about how to deal with the delay when considering their verdicts. In numerous decided cases the Court of Appeal have upheld convictions after decades of delay. It should be noted that in some cases appeals have been allowed. The question for the court is what the prejudice is in that case.
These cases are never easy. The law is complex and the evidence varies but it is the evidence that matters and trials are for juries on the available evidence and on the applicable law, not speculation. William Roache can go back to work whilst the public wait for a verdict on Dave Lee Travis.