Historic Sexual Offences

Introduction: What a historic sexual offence allegation means for you

Being accused of a sexual offence is one of the most distressing experiences anyone can face. When the allegation relates to something said to have happened many years ago – even decades ago – the situation can feel even more overwhelming.

People often assume that allegations made after such a long period must be impossible to prosecute. Unfortunately, that is not the case. Police regularly investigate allegations dating back 20, 30 or even 50 years, and prosecutions frequently proceed despite the absence of forensic evidence or independent witnesses. The oldest offence we have dealt with was 55 years old by the time it was charged!

At the same time, historic allegations create unique challenges for both the prosecution and the defence. Memories fade, witnesses die, records disappear and opportunities to gather evidence may have been lost forever. These factors do not automatically prevent a prosecution, but they can play a significant role in the outcome of a case.

At Chetwode Criminal Defence Solicitors we have represented clients facing allegations dating back more than half a century. We understand the legal complexities involved, the emotional impact these investigations have on individuals and their families, and the importance of carrying out thorough investigations from the earliest stage.

If you have been contacted by the police about an allegation from many years ago, obtaining specialist legal advice bef

What are historic sexual offences?

A historic sexual offence is simply a sexual offence that is reported a significant time after it is alleged to have happened. There is no legal definition of how much time must pass before an allegation becomes "historic". Some cases involve delays of several years, while others concern events said to have taken place in the 1960s or 1970s.

Historic allegations can involve any type of sexual offence, such as rape, sexual and indecent assaults, abuse within families, schools, sports teams, children’s homes or religious institutions. The allegations are frequently made by adults reporting events that happened to them as children. It’s therefore important to assess the accuracy of the reporting given the account may be being given by a 50-year-old person but the memories involved were created by a very young brain that may not have understood what was happening, may have been affected by a child’s imagination and may simply have invented facts over the years.

Over the last two decades there has been a substantial increase in the reporting of historic allegations. Greater public awareness, media coverage and changes in attitudes towards sexual offending have encouraged many complainants to report incidents long after they say they occurred.

While many complainants have genuine reasons for delaying a report, the passage of time inevitably makes it more difficult for everyone involved to establish exactly what happened.

What does the law say?

One of the first questions in any historic sexual offence case is which law applies.

The Sexual Offences Act 2003 fundamentally reformed the law governing sexual offences and came into force on 1 May 2004. It introduced many new offences and changed the legal definitions of existing ones.

However, the Act is not retrospective.

If the allegation concerns events before May 2004, the offence must normally be prosecuted under the law that existed at the time, usually the Sexual Offences Act 1956 or the common law.

This distinction is extremely important because the elements of offences changed considerably. For example: the legal definition of rape was different under the earlier legislation; consent was defined differently; many offences that exist today did not exist before 2003; the sentences that can be imposed are frequently very different.

Occasionally allegations will span the law change or it will be impossible to establish whether an alleged offence occurred before or after the law changed. Special statutory provisions exist to deal with those situations so that uncertainty over dates does not necessarily prevent prosecution.

For this reason, anyone defending a historic allegation needs solicitors who understand both the current law and the legislation that applied decades earlier. Happily for our clients – although perhaps not for the author of this article – our solicitors went to law school and entered legal practice before the law changed.

What must the prosecution prove?

The prosecution must prove every element of the offence under the law that applied at the relevant time. Even though the allegation is elderly, the prosecution must still prove every element of the offence as they would have to prove if the incident happened last week. That can cause problems for them

Unlike many recent cases, historic allegations often involve very little physical evidence. DNA evidence may no longer exist. Medical evidence is usually unavailable. CCTV has rarely survived. Digital communications may never have existed.

As a result, many prosecutions rely primarily on the complainant's account.

That does not mean the prosecution's case is automatically weak or automatically strong. Every case depends upon careful examination of the evidence that remains available and whether the prosecution can prove guilt beyond reasonable doubt.

Why are historic allegations particularly difficult?

Delay affects everyone involved in a criminal investigation. For complainants, memories inevitably change over time. Even honest witnesses may struggle to remember precise dates, locations or sequences of events after many years.

For defendants, delay often creates even greater practical difficulties. Potential witnesses may have died. Businesses, schools and employers may no longer hold records. Telephone records, CCTV footage and financial documents are unlikely to exist. Addresses may have changed repeatedly. People who could have provided an alibi may no longer be traceable. Sometimes it becomes impossible to establish where somebody was living or working at the relevant time.

Some years ago, we were instructed to investigate an appeal for a man convicted of historic sexual offences. He had claimed to be out of the country on the relevant dates as he was a merchant seaman who spent most of his time on board ships all over the globe. We were able to track down records that his original solicitor had missed, but it involved extensive searching of both British and foreign records, which in those days couldn’t be done online!

These difficulties make early defence investigations particularly important. A solicitor may still be able to locate documents, identify surviving witnesses or obtain information before it disappears altogether.

Common defence strategies

Every historic case is different, and the appropriate defence will depend upon the evidence. However, a number of issues arise regularly.

It did not happen

Many defendants simply deny that any offence occurred. It is important to have as much information as possible about the date of the offence to give you the opportunity to look into any records that still exist that might provide an alibi. Frequently, the prosecution try to get away with giving a rough date, something like “between the 1st January 1964 and the 31st December 1964”, which makes producing an alibi impossible and can make it very difficult to even identify the incident in question.

The defence may identify inconsistencies within the complainant's account, contradictions with independent evidence or reasons why the allegation cannot be true.

Mistaken identity

The passage of time increases the possibility of honest mistakes. Names, dates and identities can become confused, particularly where the complainant knew many people at the time.

Investigations sometimes reveal another individual whose background or behaviour more closely matches the allegations.

Consent

Where the allegation concerns adults, consent may remain a live issue.  Read our in-depth guide to the law on consent.

Even where many years have passed, surrounding circumstances, witness evidence and the history of the relationship may help explain why the defendant believed the sexual activity was consensual.

Memory and recollection

Modern psychological research demonstrates that memory is not like a video recording. People reconstruct memories over time, sometimes incorporating later experiences or misunderstandings.

Expert psychological evidence can assist where memory reliability becomes a significant issue.

Abuse of process

In exceptional circumstances the defence may argue that the delay has made a fair trial impossible. This is known as an abuse of process application. Courts are very resistant to these applications but properly formed they can succeed.

Such applications are relatively uncommon and rarely succeed, but they remain available where missing evidence or lost opportunities make a fair trial impossible.

Evidence that may help your case

Because witnesses may be unavailable or simply unable to remember events anymore, it becomes far more important to track down written records that can assist your defence.

These might include employment records that show you and the complainant did not work together at the time, place or way that would permit the offending to occur. For example, Lucy alleges that she was raped by her boss, Kevin in the storeroom of the shop they worked in together. Employment records might show that Kevin was not Lucy’s boss and might point towards another person as the attacker, thus supporting Kevin’s denial and raising the possibility of mistaken identity.

Medical records can be enlightening. While it’s possible that a complainant might say the attacker was very sweaty and his medical records might show an inability to sweat at the time, other medical conditions can be important. For example, in a case we dealt with the complainant alleged that our client had been masturbating while indecently assaulting her. Medical evidence proved that our client was physically incapable of masturbating as he had been rendered impotent following surgery more than a decade before the alleged incident.

Photographs can be an important piece of evidence to assist a jury. If they have only the complainant’s and defendant's accounts to go on then they need to assess the credibility of each person. If the complainant says that she has been abused by the defendant over many years and could not stand to be near him but photographic evidence shows a close relationship in which the complainant appears to have no problem speaking to and being close to the defendant, it may undermine her credibility for the jury. The same is true of letters, diaries and calendars that contradict the complainant’s account.

There are all sorts of records that could be useful to the defence and a good solicitor will help you identify what might exist so that investigations can be undertaken to recover anything that still exists.

Even small pieces of information can sometimes undermine an allegation or demonstrate that key parts of the complainant's account are inaccurate.

Police investigation and court process

Historic allegations often begin with a complainant making a report to specialist police officers. The police will usually obtain a detailed account before deciding whether to arrest or invite the suspect to attend a voluntary interview.

Although voluntary interviews may appear less serious than an arrest, they should always be treated with the same level of care since anything you say can be used in evidence later on.

Following interview, the police may carry out extensive enquiries before sending the case to the Crown Prosecution Service for a charging decision. Because of the complexity of historic investigations, charging decisions often take many months.

If charged, the case will normally be sent first to the magistrates’ court and then on to the Crown Court for trial before a judge and jury.

Sentencing for historic sexual offences

One of the most common questions asked by people facing historic allegations is whether they would be sentenced under today's law or the law that existed when the offence allegedly occurred.

Courts apply the current Sentencing Council guidelines even where the offending took place many years ago. However, an important legal principle remains: the defendant cannot receive a sentence that is more severe than the maximum penalty available when the offence was committed.

The sentence imposed will depend upon numerous factors, such as:

• the nature of the offence;
• the age of the complainant;
• abuse of trust;
• the level of harm caused;
• the duration of the offending;
• the defendant's previous convictions;
• mitigation, including age and health.

In historic cases the court will also frequently consider the defendant's conduct during the years since the alleged offending. A previously unblemished life over several decades may be relevant to sentence, although every case depends on its own facts.

Chetwode Criminal Defence case studies

Allegation dating back more than fifty years

We represented a man in his eighties accused of raping a young girl at a party more than half a century earlier. Nobody could identify the precise date of the alleged incident and every other person thought to have attended the party had died or moved away. After hearing all the evidence, the jury concluded there was insufficient evidence to convict and returned unanimous not guilty verdicts.

Historic allegations made by an adult daughter

Our client faced numerous allegations made by his adult daughter, including claims of abuse spanning many years. Careful investigation revealed that several allegations were demonstrably impossible. Family members were able to provide evidence contradicting key parts of the prosecution case, leading the Crown to abandon many of the charges before trial. The jury acquitted our client of every remaining allegation.

Investigating decades-old family allegations

We advised a man accused of abusing members of his family during the 1970s. Unfortunately, he had been convicted before he contacted us and the rules governing appeals are very different from those dealing with trial. We conducted investigations in both the United Kingdom and Canada we uncovered evidence that could have demonstrated he was absent for substantial parts of the period covered by the allegations. The case illustrates why thorough investigation before trial is absolutely essential.

Frequently asked questions

Can I still be prosecuted after 30 or 40 years?

Yes. There is no limitation period for serious sexual offences.

Can somebody be convicted without forensic evidence?

Yes. Most historic cases proceed without DNA or medical evidence if the prosecution believes there is sufficient evidence for a jury to convict.

Why would somebody wait so long before reporting?

People delay reporting for many different reasons. Every case is different, and the reasons for delay do not determine whether an allegation is true or false, although the timing of an allegation may be relevant to the witnesses credibility particularly where there is some alternative motivation, such as a potential inheritance, also in play.

Can the case be stopped because it is too old?

Only in exceptional circumstances. The courts have the power to stop proceedings where a fair trial is impossible, but these applications succeed only rarely.

Should I answer police questions?

You should obtain specialist legal advice before deciding how to approach any police interview. Decisions made during the first interview can have significant consequences throughout the rest of the case.

How Chetwode Criminal Defence can help

Historic sexual offence cases require meticulous preparation and experienced legal representation.

We understand both the historic and modern legislation governing sexual offences, regularly instruct leading King's Counsel and specialist barristers, and work with independent experts where appropriate.

Our approach is proactive. We do not simply react to the prosecution's evidence; we investigate, identify witnesses, obtain records and build the strongest defence available from the earliest stage.

Whether you have been invited for a voluntary interview or have already been charged, obtaining specialist advice at the earliest opportunity gives you the best chance of protecting your position.