R v BQL & Anor

This is a prosecution appeal, pursuant to section 58 of the Criminal Justice Act 2003, against a ruling by a judge that the two accused had no case to answer on charges alleging a number of offences.

Reporting restrictions apply to this case in accordance with the provisions of section 71 of the Criminal Justice Act 2003. For that reason the names of the accused have been anonymised in the listing of this case. We shall refer to them by randomly chosen letters, BQL and AKO.

Further, and in any event, the victim of the alleged offences is entitled to the lifelong protection of the provisions of the Sexual Offences (Amendment) Act 1992. Accordingly, during her lifetime no matter may be included in any publication if it is likely to lead members of the public to identify her as the victim of the alleged offences. We shall refer to her as "C", and we shall, so far as possible, avoid referring to circumstantial detail which may lead to her identification. We shall return to the reporting restrictions at the conclusion of this judgment.

We summarise the relevant facts. C had attended a Christmas event with a female friend. She drank alcohol and became intoxicated. In the early evening C left the event alone. So far as the evidence shows, she then met BQL. In broad summary she went with him to a house which he occupied with others and into a bedroom which he shared with his brother, AKO. It does not appear that C had met either of them before that day. She left the house around five hours later.

Later scientific analysis was to show traces of semen from AKO and DNA from BQL on swabs taken from C's vagina; DNA from AKO on C's underwear; and blood from BQL on her clothes.

Toxicology evidence was to the effect that around the time she went into the house with BQL, the level of alcohol in C's blood would have been about three and a half times the legal limit for driving.

C told the police that she had no recollection of what happened to her until she came round in a room with two men she did not know. She was then wearing little, if any, clothing.

CCTV footage was recovered which showed C and BQL meeting in the street. The judge was to note in his ruling that the footage showed C to be clearly intoxicated. For an appreciable period of time she and BQL were standing against some railings by a pedestrian crossing, kissing. The footage shows that C put her hand inside BQL's trousers and moved her hand inside the trousers for some time. It further shows her falling to the ground on two occasions and being pulled back up by BQL. At one stage C parted from BQL and crossed the road, leaving behind a bag containing some items she had earlier purchased. BQL then crossed the road after her. The footage then recorded the two walking in the direction towards the house where BQL lived with his co-accused. It showed them arriving at the front door. We shall say more about that shortly.

In the course of the walk towards the house of the accused, C made or received three telephone calls. The prosecution pointed to her incoherence during those calls as an indication of her incapacity.

A housemate of the accused returned to the house about ten minutes after C and BQL had arrived. He heard activity within the room shared by the accused and listened at the door for a time. He then went upstairs, collected other housemates and came back to the door, where he made a recording on his mobile phone. The judge summarised the audio recording as showing that a person who must have been C directed a man more than once to look at her, directed the man to take off what it is suggested could only be an item of clothing, commented on the penis of the person to whom she was speaking, told someone that he should not touch her until she told him to, said that when she touched his "dick" she wanted it to be a "proper dick", and asked whether the person to whom she was speaking knew what it meant to "fuck" her.

This recording was played to C for the purposes of a second Achieving Best Evidence interview. She questioned whether it was really her speaking. She said, "If it was me, I was acting as if it wasn't me".

Neither of the accused made any comment in interview. BQL made a prepared statement in which he denied rape or any other sexual offence; and AKO later made a prepared statement in which he said that his semen could innocently have been transferred onto C's underwear.

The prosecution were able to point to initial remarks by each of the accused on arrest as being lies.

The accused were charged on an indictment containing five counts. Count 1 charged BQL with kidnapping C; count 2 charged him with kidnapping C with intent to commit a sexual offence; count 3 charged both BQL and AKO with the rape of C; count 4 charged them both with assault by penetration of C; and count 5 charged BQL with sexual assault on C.

C gave her evidence in the form of recorded interviews and was cross-examined on behalf of both the accused.

At the conclusion of the prosecution evidence Miss Siatta and Miss Rogers, then as now representing the accused, submitted that there was no case to answer. Their submissions were opposed by counsel then representing the prosecution.

The judge was helpfully referred to case law, including R v Bree [2007] EWCA Crim 804, R v H (Hysa) [2007] EWCA Crim 2056, and R v Kamki [2013] EWCA Crim 2335.

The judge began his ruling by considering counts 3, 4 and 5. He said that the way those counts had been charged was odd in itself, reflecting the lack of evidence as to what had taken place in the bedroom. He characterised the prosecution case as "leaving it to the jury to try to work out". The judge then reminded himself of the familiar test set out by the then Lord Chief Justice in R v Galbraith [1981] 1 WLR 1039, at 1042:

The judge then summarised the independent evidence which bore directly on the issue of consent. He noted the prosecution's submission that the CCTV footage of events by the pedestrian crossing was evidence of the extent of C's intoxication, but said that the prosecution had not considered "any alternative reason for the complainant twice dropping to her knees at a time when clearly she is disinhibited". He accepted the prosecution's submission that what happened outside the property could not be separated from what happened in the bedroom, but said that that was a point which cut both ways.

The judge noted that C had said in cross-examination that it was not her on the recording because she could not remember. The judge continued:

The judge then helpfully summarised the effect of the case law to which he had been referred. He set out a series of numbered propositions. They included the following:

The judge made the following assessments of the evidence. First, he said:

The judge again commented critically about the prosecution case, saying that the prosecution could not decide on which charge there was evidence on which a jury could properly convict.

For those reasons the judge concluded that in relation to counts 3, 4 and 5 "limb 1, or if not certainly limb 2(a), of Galbraith applies".

As to counts 1 and 2, the judge ruled that there was some evidence of a lack of consent, but it was tenuous because it was wholly inconsistent with the consent demonstrated by the independent evidence of the events in the bedroom. He concluded that those counts fell within limb 2(a) of Galbraith. Thus, the judge ruled that there was no case for either of the accused to answer.

The prosecution gave notice of appeal against that ruling. All necessary formalities have been complied with and the acquittal undertaking required by section 58(8) of the 2003 Act has been given. The judge declined to expedite the appeal and the jury was discharged.

By section 61 of the 2003 Act, this court has the power to confirm, reverse or vary the rulings to which the appeal relates. However, by section 67 this court may not reverse a ruling

For the prosecution, Mr Jarvis submits that the judge fell into error and made a ruling which was not reasonably open to him. Mr Jarvis accepts that a drunken consent is still a consent. But he submits that if a woman becomes so intoxicated that she no longer has the capacity to choose, she cannot consent to sexual activity. He further submits that a complainant who appears to be a willing participant in sexual activity will not be consenting if she lacks the capacity to do so.

Mr Jarvis argues that the judge overlooked this important point, and gave too much emphasis to evidence which undermined the prosecution case and too little weight to the evidence which pointed to a lack of ability on C's part to exercise autonomy. The crucial question the judge had to consider, submits Mr Jarvis, was this: Could a reasonable jury find that C lacked capacity to consent? That question is distinct from the question whether C did consent.

In the passage which we have quoted (at paragraph 21 above) from paragraph 19(vii) of the judge's ruling, Mr Jarvis submits that the judge mistook this point. He invites our attention to R v Bree, to which we shall return in a moment, and he points out that in R v H (Hysa) this court observed that questions of capacity will generally be for a jury to resolve.

In the circumstances of this case, Mr Jarvis submits, the judge should have concluded that a reasonable jury could properly find that C lacked capacity to consent and that therefore she could not consent either to accompany BQL to the house, or to engage in any sexual activity with either of the accused. Mr Jarvis adds the further submission that the judge misdirected himself in relation to the possible significance of lies told by the two accused when arrested.

For the accused, it is submitted that the judge correctly directed himself in law, carried out a careful and unimpeachable analysis of the evidence, and reached conclusions which were properly open to him.

Counsel emphasise cases such as R v B [2008] EWCA Crim 1144 and R v M and T [2009] EWCA Crim 2848, which make clear that in circumstances such as these, this court should only interfere with the decision of the trial judge if it was outwith the range of reasonable conclusions open to him. Miss Siatta and Miss Rogers both submit that this court could not in the circumstances of this case, unusual as they undoubtedly are, conclude that the judge's ruling was outwith the range of reasonable conclusions open to him.

We are grateful to all counsel. Their submissions have been clear, focused and of great assistance to the court.

We remind ourselves of the terms of section 74 of the Criminal Justice Act 2003:

We agree with counsel that none of the presumptions about consent, which are addressed in sections 75 and 76 of the Act, arises in this case. As was observed by this court in R v Bree at paragraph 24, one of those statutory provisions (section 75(2)(d)):

The court in R v Bree reflected on the issues which arose in cases such as this, and at paragraph 34 said:

Reflecting on the circumstances of the present case, the following features are, in our view, important.

First, we think it appropriate to begin with consideration of counts 1 and 2, rather than starting, as the judge did, with counts 3, 4 and 5. We take the view that if there is a case for BQL to answer on count 1, then in the light of what happened shortly after they reached the house there is also a case to answer on count 2.

In considering these two counts, the CCTV footage of C and BQL in the street is very significant. On the one hand, it shows the couple kissing and shows C putting her hand inside BQL's trousers and apparently moving her hand for an appreciable period. But, on the other hand, a jury could reasonably find that it also shows that C was obviously very intoxicated, to the point that she was unable to remain upright without holding on to BQL and some railings for support. As we have noted, she twice fell over. On the second of those occasions she landed quite heavily on the ground. Although the judge hinted at a possible sexual connotation to C "twice dropping to her knees", his reference to that as an "alternative reason" is an acknowledgement that the jury could take a different view.

We also note that the footage shows that when C left BQL, she stepped onto the zebra crossing without looking for any oncoming traffic and left behind her the bag containing her purchases. BQL then crossed the road after her.

Secondly, as the two walked towards the house, it would be open to a jury to find that C was being held up and steered by BQL, rather than embracing him.

Thirdly, and in our view importantly, the footage recorded when C and BQL arrived outside the house shows that C twice walked away but was on each occasion brought back by BQL. The prosecution's description of BQL as "frogmarching" her is one which the jury could find to be accurate.

Pausing there, whilst of course there are powerful jury points to be made on behalf of the accused, we are satisfied that the evidence showed a case to answer against BQL on counts 1 and 2.

Fourthly, whilst the judge was correct to say that events outside the house have to be viewed in the context of what the housemate heard a few minutes later, so too must the overheard activity be viewed in the context of C's evident reluctance to enter the house. A jury could properly find that her actions outside the house did not indicate or even suggest any consent to embark upon sexual activity in the house. We would add that a jury listening to the recording made by the housemate, as we have done, could find that C's speech was slurred.

Given C's evident intoxication and her evident reluctance to enter the house, a jury could reasonably be sure that any apparent consent to sexual activity minutes later, including sexual activity with a man other than the one who had brought her into the house, was not given by someone with capacity to consent.

Fifthly, in relation to the overhead activity in the bedroom, we accept as correct in law the prosecution submission that apparently willing actions by C would not have been consensual if, as a result of her intoxication, she lacked capacity to consent.

Sixthly, we note that a number of hours then passed before C says she woke, not knowing where she was and with no recollection of what had happened whilst in the company of two men she did not know. Her evidence was that she felt a soreness in her legs, as if they had been forced apart. We agree with the judge's observation that whether or not C could remember would be a matter for the jury in the context of their assessment of her credibility. We respectfully disagree, however, with his view that it "arguably does not matter" for the purpose of his decision as to whether there was a case to answer. If a jury could find that C was so drunk that she could not remember what happened over a period of hours, they could also find on the evidence as a whole that she was so drunk that she lacked capacity to consent.

Seventhly, the scientific evidence is capable of supporting a finding by a jury that both accused had engaged in sexual activity with C, and the evidence as a whole is capable of supporting an inference that each had encouraged or assisted the other.

Lastly, the factors which we regard as important in relation to C's capacity to consent are also important in relation to any claim by an accused that he reasonably believed she was consenting. We emphasise, however, that we accept Mr Jarvis' submission that the real question for the judge was whether a reasonable jury could find that C lacked capacity. We also agree with Mr Jarvis that if it was open to the jury to find that either or both accused had initially lied to the police, those lies would be relevant to the jury's consideration of C's capacity.

We recognise, of course, that on counts 3, 4 and 5 there are again powerful points to be made on behalf of the accused. We are, however, satisfied that those are points for consideration by the jury, not reasons for taking the case away from the jury.

We hesitate to differ from the conclusion reached by the judge who had heard the prosecution evidence, including that of C. With all respect to the judge, however, we are satisfied that he fell into error of law by treating the independent evidence of what C said and did solely as evidence which undermined the prosecution case, and by failing to consider also whether that same evidence was capable of showing that C lacked capacity to consent. As a result, his rulings that neither accused had a case to answer were rulings which it was not reasonable for him to make.

We, therefore, reverse the judge's rulings and order that the proceedings against both accused may be resumed in the Crown Court. In practice that will mean that the trial will have to re-start. Meaning no disrespect, we think it best for the trial to be heard by a different judge at a different Crown Court centre. We shall ask the Presiding Judges of the circuit concerned to allocate the venue and the judge. We direct that the case must then be listed as soon as possible to mention and fix a trial date.

We will now return, as we said we would, to the reporting restrictions. Having received helpful further submissions from counsel, we make an order pursuant to section 4(2) of the Contempt of Court Act 1981 postponing any reporting of these proceedings or of this judgment until after the conclusion of the trial which we have directed is to proceed.

Thereafter, the reporting restrictions in section 71 of the Criminal Justice Act 2003 will be disapplied.

The practical effect of these orders is that nothing may be reported about this case until the conclusion of the retrial. But thereafter the judgment may be reported in full in the terms in which it has just been given.

Mr Jarvis, in the usual way, would the prosecution please notify the court once the stage has been reached at the conclusion of the retrial.

MR JARVIS: Of course.

After delivering the above judgment of the court, the Vice-President made observations about two recurrent problems: the provision of audio or video recordings which cannot be heard or viewed by the court, either because they are in a format or on a platform to which the judges do not have access, or because the necessary link to the Egress platform has not been arranged; and the failure of practitioners to identify in advance of the hearing which part or parts of the material the court is asked to consider. The Vice-President urged practitioners to read and follow the Guide to Proceedings in the Court of Appeal, Criminal Division, in particular at section G5, and to consult the Criminal Appeal Office in the event of any difficulty.