I now inform you of a significant consequence of the fact of delay and this is the impact of the delay on [BDX's] duty to defend himself against these charges. In assessing the evidence in this case, you will need to have regard to the following significant considerations because of the delay, especially since the offences are alleged to have been committed in about 1997 up to 2001 or 2002, and we are now of course in almost the middle of 2008.
You must regard these significant considerations that [BDX] lost the opportunity to make enquiries at or close to the time of the alleged incidents. That is number one. Number two, that [BDX] has lost the ability to explore the alleged circumstances in detail soon after the offences were said to have occurred, and such an exploration may have uncovered evidence which would have thrown doubt upon the complainant's allegations or confirmed [BDX's] denial of the charges, although you must bear in mind he does not have to prove or disprove anything. [BDX], thirdly, lost the means of testing the complainant's allegations which would have been available had there been no delay in prosecution. The advantage he lost was testing them at an earlier point in time, and other witnesses, apart from those who did give evidence, who may have been able to give evidence contradicting the complainant's allegation or allegations, can no longer remember relevant details, and those witnesses who did give evidence, the [Ls] and the other man who gave evidence, they also have difficulty in remembering relevant details.
I instruct you as a direction of law that you have got to take those disadvantages into consideration when determining whether the prosecution has proved [BDX's] guilt beyond reasonable doubt and I think it is probably worthwhile if I repeat what I have just said that in assessing the evidence you need to have regard to these significant considerations because of the delay, that [BDX] had lost the opportunity to make enquiries at or close to the time of the alleged incident. Secondly, that [BDX] had lost the ability to explore the alleged circumstances in detail soon after the offences were said to have occurred, and such an exploration may have uncovered evidence which would have thrown doubt on the complainant's allegations, or confirmed his denial of the charges, although as I said, there is no onus on him to prove or disprove anything.
[BDX], thirdly, lost the means of testing the complainant's allegations at an earlier point in time, and that would have been available had there been no delay in prosecution, and that is not a criticism of the prosecution, of course, because there was no complaint made until 20 February 2006, and other witnesses who may have been able to give evidence contradicting the complainant's allegations, can no longer remember relevant details, and those who did give evidence may no longer be able to remember relevant and pertinent details about the times that they spent with the accused man, and I repeat my instruction to you as a direction of law that you have got to take these disadvantages into consideration when considering whether the prosecution has proved [BDX's] guilt beyond reasonable doubt.
Another consequence of the delay is its possible effect, especially on the reliability of the complainant's memory, as well as indeed, of course, [BDX's] memory, because the accused's memory may be faulty on some matters because after all he is part of the human race too, and his memory may be non-existent on other matters which could perhaps exculpate him.
It is a matter of common human experience that honest people are subject to faulty recollection or inaccuracy, and you will easily understand that the passage of time may affect any witness' memory and people may convince themselves that some incident occurred in a particular way in the past, and one cannot ignore the effective imagination in motion, prejudice or suggestion, on how past events are remembered after many years. You will understand also that some people honestly and accurately recall incidents in the past with clarity and can swear to them sufficient for a jury to accept and believe what the witness is saying after the jury has given that evidence careful scrutiny.
You have got to consider the question of delay and its effect on memory and possible effect, especially on the reliability of the complainant's memory. As I just said, you will easily understand that the passage of time can affect any witness' memory, while in some cases people simply forget things. In other cases, their memory can become distorted, that is, they may come to remember things that did not really happen.
Experience has shown that human recollection is frequently erroneous and liable to distortion in this way and the likelihood of this error increases with the length of delay, and the risk is enhanced if the complainant was young when the alleged offence took place, and one's recollection of events occurring in childhood is often distorted or mistaken. It is therefore important that you carefully consider, not only whether the complainant's evidence is honest, in the sense that she believes it to be true, but also whether it is in fact true. Whilst you should use your common sense and experience in life in assessing the effect of the delay upon the complainant's memory, you must keep in mind the possibility that she honestly believes what she is saying, but is mistaken due to the distortion of her memory because of the delay that has occurred.