Where a trial judge gives the statutory warning under s 294 of the Criminal Procedure Act 1986 that delay in complaint does not necessarily indicate the allegation is false, a Kilby direction must also be given to balance the warning by informing the jury that delay in complaint may be taken into account in assessing the complainant's credibility. However, the failure to give the Kilby direction does not necessarily result in a miscarriage of justice if the issue of the complainant's credibility was otherwise adequately placed before the jury. The distinction between credibility (truthfulness) and reliability (accuracy) in jury directions may be significant when assessing whether the proviso should be applied. Practitioners charging historical sexual offences must verify that the offence as charged existed at the relevant date, particularly where legislative amendments changed the definition of sexual intercourse or carnal knowledge.
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