The Court of Appeal has dismissed an appeal by B.S. against the refusal of an injunction to stop a prosecution over an alleged rape in 1970.
The appeal concerned an order made by the High Court on 7 October 2016. B.S. had sought judicial review to restrain the Director of Public Prosecutions from proceeding with the case, which was listed for trial in the Central Criminal Court. The Court of Appeal held that the High Court judge was correct to refuse the injunction. It did not determine guilt or innocence; that is for the criminal trial court.
The prosecution concerns an allegation that B.S. raped a seven-year-old girl on one or more unknown dates between 1 January and 21 May 1970. B.S. was 16 at the time. The complainant said he worked as a labourer on her parents’ farm and assaulted her on several occasions after luring her to a field with sweets and money. B.S. denies assaulting her and disputes that he was dismissed because of the allegation.
B.S. argued that the deaths of two other farm labourers and the complainant’s father left him unable to defend himself fairly. He said the labourers might have described farm conditions and whether he was left caring for the children, while the father might have supported his account that he was let go after misfortune on the farm. The DPP argued that there was no specific basis to say the witnesses would have given evidence helpful to the defence.
The appeal judgment said a person seeking to stop a prosecution must show a real or serious risk of an unfair trial that cannot be addressed through rulings or directions by the trial judge. A theoretical possibility that a missing witness might have helped is insufficient.
The court found that B.S.’s assertions about the two labourers did not go beyond theoretical possibilities. It also considered a statement from the complainant’s mother, now deceased, saying that after her daughter told her of the assault, she informed her husband, who paid B.S. his wages and dismissed him. In light of that statement, the court said it was highly improbable that the father would have given evidence helpful to the defence on the reason for the dismissal.
The appeal judgment also noted a statement from the complainant’s older sister alleging that B.S. sexually assaulted her when she was 12 or 12½. That material formed part of the circumstances considered on the injunction application; the Court of Appeal did not decide its admissibility at trial.