News Criminal Defence 2nd May 2023

Gudrun Young KC acts for Defendant acquitted of rape after the Court of Appeal reversed Abuse of Process Ruling

Following a “lock in” in a bar on New Year’s Eve 2018 a complainant, having consumed a significant quantity of alcohol, said she was in and out of unconsciousness when she “came to” to find herself lying on a floor with the Defendant, the bar manager, penetrating her with his penis.  She was found in a distressed state outside some 15 minutes or so later by passers-by.  She told them that she had been raped and the police were called.

The main bar area of the premises was captured by CCTV and relevant parts of the footage showed the complainant in a collapsed state with events matching that which she described, save for the crucial fact that the footage did not show any act of sexual intercourse at all.

It was the Crown’s case that the complainant was unclear as to where the rape took place and, because it was not shown on the footage, it must have happened in the 15 minutes when they went “off camera” and before she was found outside, despite the fact this area inside the premises not covered by CCTV bore no relation to her description of the room in which she was raped.

The Defendant denied that any act of vaginal penetration had taken place.  The investigation was characterised by a series of mistakes from the very outset.  The police who attended the scene and took a first account from the complainant failed to switch on their Body Worn Cameras or make any notes.  Body Worn Videos of the Defendant’s arrest and a “walk through” of the premises were taken but then not stored properly/destroyed.  Whilst the Defendant’s penile swabs were taken and came back negative, all of the samples taken from the complainant (including blood/urine samples and vaginal swabs) were lost when they were moved to a different location at another police station a few weeks after the allegation.  Her clothing, including her underwear, was seized but then lost.  An eyewitness gave his details to the police, but the details were not correctly recorded and he could not be traced.

In June 2022 the Defence made an application to stay the proceedings on the basis that the loss of evidence by the prosecution meant that a fair trial was no longer possible in circumstances where the lost evidence was highly relevant to the central issue of the complainant’s level of intoxication, her credibility and whether or not an act of vaginal penetration had taken place.  The application was granted and the Judge stayed the proceedings, citing the fact that the investigation had been “woeful” and “negligent”.   The Judge ruled that the defendant could not have a fair trial and regarded the circumstances as being similar to those in the case of R v Ali [2007] EWCA Crim 691 (the Court quashing the convictions in a case where a number of relevant documents had been lost or destroyed).  The Judge relied on the fact that there was no evidence to support the bare allegation of rape and that the complainant had a confused and limited recollection.  The Court of Appeal reversed the abuse of process ruling on the grounds that the Judge had fallen into error in finding that there was an “evidential vacuum” in the case and failed to consider properly the evidence that did exist in support of the prosecution case which meant that a fair trial was possible, namely the complainant’s account, the CCTV (which did not show any rape but showed her incapacity to consent to any sexual activity which may have occurred shortly after), the “first complaint” evidence and the potential for the Defendant to give/call evidence if he chose.

The case was reported as Regina v ANP [2022] EWCA Crim 1111 and has been the subject of legal commentary and analysis in a variety of publications.

Following the reversal of the abuse of process ruling, the matter was re-listed for trial in April 2023.  In the meantime, the complainant’s samples and swabs were, by pure chance, found in a police cupboard which was being cleared out, nearly 4 years after they had been lost.  They were sent for analysis (the blood and urine samples showed that the complainant was highly intoxicated at the time and the vaginal swabs were negative for any of the Defendant’s DNA).

At trial, the Defendant was unanimously acquitted after a short jury deliberation, which is perhaps unsurprising given the difficulties with the complainant’s account, the fact that the CCTV did not show any rape and the lack of supporting evidence.

The case raises a number of interesting questions.  Were the CPS right to continue with the case when the CCTV came to light, showing that a rape did not take place at the relevant time and in the absence of any supporting evidence?  This is perhaps an illustration of the current climate where the CPS, in an attempt to right the wrongs of the past and improve the statistics of rape cases being brought to trial, are proceeding with cases where the prospect of a conviction is unlikely and/or it is not in the interests of justice to do so.

Secondly, was the Court of Appeal right to reverse the Judge’s ruling on abuse of process in circumstances where the Defendant faced a bare allegation of rape and nearly all of the evidence which may have assisted him was lost due to police incompetence/negligence?  Is the jury’s verdict a vindication of the Court of Appeal’s ruling that the Defendant could have a fair trial despite the loss of evidence, or an example of a lucky escape from a potentially unsafe conviction (especially when some of the samples came to light only by chance at the 11th hour, the results of which were helpful to the defendant)?  And in what circumstances – faced with an undoubtedly negligent police investigation and the loss of evidence critical to the defence – will the Court of Appeal uphold a submission that there has been an abuse of process?


Gudrun Young KC was instructed by Andy Rootsey of Murray Hughman.




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