Responding to the danger of wrongful conviction for historical sexual abuse: A case for resurrecting abuse of process for delay?

Abstract

This article examines the potential risk of wrongful conviction for defendants facing historical sexual abuse charges where there is substantial delay. This risk arises from problems with truth-finding based on witness testimony, challenges posed by missing evidence and the increasing erosion of procedural safeguards. This article considers two recent proposals for reform, including first, whether the Court of Appeal should be more prepared to revisit the factual basis of decisions in historical sexual offence appeals; or second, whether there is a need to strengthen procedural safeguards at trial through the doctrine of abuse of process for delay. This article concludes that, whilst there would be advantages to broadening the grounds for appeal, the criminal courts should be more prepared to stay substantially delayed claims for abuse of process where there is missing evidence. The current approach has the potential to be unfair and fails to protect those defendants who are most disadvantaged by delayed claims.