Ferriter, R. v

THE VICE PRESIDENT: This defendant was convicted of attempted rape. His appeal as originally formulated was founded on the submission which was made to the judge that there was insufficient evidence to leave to the jury that what he did was more than a merely preparatory act. However, as the argument has developed it has become apparent that there is a second line to the submission, which is that there was insufficient evidence to leave to the jury to justify the inference that, even assuming there was a more than merely preparatory act, the intent was not merely to assault the complainant sexually, but to commit the specific offence of rape.

The background is this. The defendant had spent the evening drinking in a public house where the complainant was the barmaid. He appears to have been there all night, and he had no doubt been drinking most of the time. By the end of the evening he was the only remaining customer and she was alone behind the bar. Nobody else seems to have been in the building at all, certainly not in the bar in question.

The complainant had for some time been ready to leave. She had her coat on and had her bag over her shoulder. She could be seen on the CCTV footage which the jury saw standing about, quite patently waiting for the last drinker in the bar to stop and go home. That was the defendant. He did not leave. He arrived instead behind the bar with her. He confronted her face to face and a struggle ensued. The two of them ended up on the floor. Part of the time he was on top of her on the floor and part of the time, because she struggled, they were more like side by side on the floor. She was successful in her struggles and eventually she broke free. She was able to run to another public house nearby and to get help. A man from the other public house went to the scene of the offence and was able to detain the defendant who was still there.

The defendant pleaded guilty to counts of theft of spirits, namely a bottle which he had detached from the optics, and of some money from the tills, all taken after the complainant had left the public house and run away. That left two counts for the jury to consider. Count 1 was a count of attempted rape and count 2 was a count of sexual assault.

At the conclusion of the Crown's case, Mr Oscroft on behalf of the defendant asked the judge to rule that there was insufficient evidence that anything more than mere preparation had taken place. That submission the judge refused. The submission is renewed before us.

It is a commonplace that attempted rape requires proof of two things. The first is an intention to rape, rather than to do anything else, and the second thing that must be proved is actions which are more than mere preparation for committing the offence. To borrow the language of Lord Bingham in R v Geddes [1996] Crim LR 894, it is often helpful to invite the jury to consider whether the defendant has done an act which shows that he has actually tried to commit the offence in question, or whether he has only got ready or put himself into a position or equipped himself to do so in future.

Mr Oscroft has referred us to a decision of this court in Beaney [2010] EWCA Crim. 2551. That was a case in which the defendant accosted a woman who was leaving a railway station at night. He put some kind of weapon to her neck and pushed her into some bushes. She went to the ground but was able to break free and run away, leaving her bag behind. The defendant took her bag and was found later in possession of her i-Pod which had been in it. In due course his case was that it had been simple robbery or theft but there was no sexual motive at all. This court held that on the facts of that case there was insufficient evidence of an intent to rape, as distinct from an intent to commit a lesser sexual assault. For that reason the conviction for attempted rape was quashed and a conviction for attempted sexual assault was substituted.

It is essential to separate in the analysis of this case, as it was in Beaney, the evidence as to the defendant's intention on the one hand and whether there was more than mere preparation on the other. As we have said, the principal submission advanced to the judge and initially the principal submission advanced to us, focused on the second of those questions. But logically it makes sense to consider first the question of intention.

The defendant's case here, rather as Mr Beaney's case, was that there was nothing sexual in his mind at all. His case was that what he wanted to do was to take the money out of the tills behind the bar. Indeed it was his case that he told the unfortunate complainant that that is what he was after -- in effect that he said to her that she need not fear anything worse, he was only after the money. The evidence however belied that assertion. First, she said he had said no such thing and she would undoubtedly have heard it if he had. The jury plainly believed her and did not believe him. Secondly, her evidence, plainly accepted by the jury, was that he had tried while they were struggling on the ground, on something like three or perhaps four occasions, to pull her trousers down. True it was that because she was wearing a top coat the part of the trousers that he was able to get his hand on were at or about knee level, or possibly below, but that is what was accessible. Whilst it was of course a perfectly proper submission to make to the jury on his behalf, for Mr Oscroft to contend that he might simply have been trying to prevent her from getting up and running away, rather than actually trying to remove her trousers, the jury was quite entitled to take the view that that was not so, and plainly it did.

The first question in the case is accordingly whether there was evidence from which the jury could safely infer a sexual intent rather than the intent to rob which the defendant asserted. We are entirely satisfied that the jury had ample material on which to conclude that the intention was sexual molestation as distinct from robbery. If he had wanted the money, he would have said so and he did not. The attempt to remove her trousers, which the jury clearly accepted, is wholly inconsistent with robbery and only consistent with sexual intent. Her handbag which was over her shoulder and likely to contain something of some value was not touched. When he came in behind the bar he went straight to her, rather than to the tills, and when she ran away it was some little time before he went anywhere near the tills and then only after he can plainly be seen deliberating for some time whether to pour himself a glass from one of the optics or to take, as in the end he did, one of the bottles down.

The next question is however more difficult. It is whether there was material on which the jury could safely infer that the sexual intention which the defendant plainly had was to commit the specific offence of rape with all that that entails, rather than something unpleasant and sexual but not necessarily the particular kind of penetration which is rape.

We sympathise with the judge in leaving the entire case to the jury because it is not at all clear to us that the submission which we have just articulated was ever clearly made to the judge. But the answer of Mr Connor for the Crown to the simply expressed but penetrating question of my Lord, Popplewell J, is revealing. Was there, my Lord asked, any evidence or activity which was capable of justifying the conclusion which pointed to an intent to commit rape rather than, for example, an intent to molest her sexually under her clothes in some other way? Mr Connor's frank answer was that there was not, and he is right. In those circumstances we are, we think, driven to the conclusion that the conviction for attempted rape is unsafe.

Before we come to the consequences of that, we need to address the third question which is: was this a case in which the jury was entitled to say, assuming an intent either to rape or to commit some other sexual offence, that the activity of the defendant went beyond mere preparation into trying to do it? We have not the slightest doubt that his actions did go well beyond mere preparation and into trying to do it. He was engaged in the act of molesting the unfortunate complainant physically and trying to remove her trousers. If that is not more than mere preparation we are not at all sure that we know what is. We observe that in the case of Beaney this court reached a similar conclusion in relation to activities on the part of that defendant which were a good deal less explicit than the activities of this one. What had there been done was no more than to reach out a hand towards the complainant's leg.

The result therefore is that we are left with a case in which there was ample evidence of an intent to commit a serious sexual assault, involving the removal of the lady's trousers and thus, plainly, an assault directed at her private parts unclothed. The jury must, on the findings that it made, have concluded that that was his intent and they must in those circumstances, had they gone on to consider count 2, have concluded that there was in this case a sexual assault. There was clearly a physical assault and by section 78 of the Sexual Offences Act 2003, touching or other activity is sexual if a reasonable person would consider that the act is of its nature sexual, but also if such a person would consider that, whilst of its nature it was equivocal, yet because of the purpose of the perpetrator it was sexual. This is a case of the second of those alternatives without, in our view, the slightest doubt.

In those circumstances, section 3 of the Criminal Appeal Act 1968 plainly applies and the right course for this court to take is, whilst quashing the conviction for attempted rape, to substitute a conviction of sexual assault. That means that we must then consider the question of sentence.

The judge passed a sentence of four years' imprisonment in respect of the count of attempted rape. Had it been a full rape it would plainly have been something in the order of five or six years. It is true that the physical assault of the complainant did not in this case, happily as it turned out, reach the interference with the complainant's private parts but it is plain that that was what the defendant was about. He was doing it at night against a vulnerable complainant, vulnerable in the sense that she was a lone woman doing her job in a public house where there was nobody else to support her. Had it not been interrupted by her succeeding in escaping, it might well have attracted quite a long sentence of imprisonment. Even as it was, it was a matter of no little gravity. It is not quite as bad as an attempt to commit the offence of rape, but there is not an enormous difference from that in an attempt to interfere with her unclothed private parts in some other way than by way of rape, given that in both cases it did not in fact proceed. Doing the best we can, we are entirely satisfied that a sentence of not less than three-and-a-half years' imprisonment is appropriate on the substituted count of sexual assault.

Accordingly, the outcome of this appeal is that the conviction for attempted rape is quashed, a conviction for sexual assault is substituted and the sentence for that is three-and-a-half years, concurrent to the sentence which was imposed by the judge in respect of counts 3 and 4 for the relatively insignificant thefts which the defendant carried out by way of afterthought.