R v HEF

This is a case to which the provisions of the Sexual Offences (Amendment) Act 1992 apply. Reporting restrictions apply in this case. No matter may be published if it is likely to identify either of the two complainants as the victims of these offences. We shall refer to them as ‘C1’ and ‘C2’ in the course of this judgment. That is a lifetime prohibition unless it is waived or lifted in accordance with section 3 of the Act.

The provisions of section 45 of the Youth Justice and Criminal Evidence Act 1999 are also engaged in this case because the appellant is 16 years old. This means that the court may direct that whilst he is under the age of 18, no matter relating to the appellant shall be included in any publication if it is likely to lead members of the public to identify him as a person concerned in the proceedings. We understand that such an order was made in the Crown Court and we propose to do the same as regards any reporting of this appeal. We make it clear that this does not in any way tie the hands of the Crown Court on any future occasion when it may be considering whether to make an excepting direction under section 45(4) or (5) of the 1999 Act. The appellant is identified by a random set of initials 'HEF'.

This is an appeal against conviction brought by leave of the single judge on three grounds. Leave was refused on a fourth ground which counsel for the appellant, Ms Rose, seeks to renew.

On 18 July 2025 in the Crown Court at Wood Green following a trial before Her Honour Judge Mensah (“the Judge”) and a jury, the appellant was convicted of two counts of rape, one count of assault by penetration and three counts of sexual assault. He was acquitted on a number of other counts. He has not yet been sentenced. All but one of the counts of which the appellant was convicted related to C2. He was acquitted of the rape of C1 on a different occasion in 2023 and on the night on which the offences against C2 were committed.

C1 and C2 were 16-year-old school friends. The appellant (then aged 15) and C1 had an on-off relationship since November 2022, and she admitted that she still had feelings for him, but for a few months prior to the weekend on which the offending occurred she had been dating his friend, whom we shall call ‘J’.

On Saturday 25th May 2024, J contacted C1 and asked her if she wanted to meet up with him and the appellant, inviting her to bring along a friend. C1 and C2 travelled to London and met the two young men at the train station. The group all went to a flat in Hackney, arriving there at around 9.30 pm. J and C1 then went out for a walk, leaving the appellant and C2 in the flat.

C2's account to the police of what happened next was that she smoked some cannabis, or a substance she believed to be cannabis, which was given to her by HEF, but it affected her in an unusual way: her ears were ringing, her vision was affected and at one point she thought she was going to pass out. She said that after this happened, HEF pinned her against the wall and began kissing her neck. She told him to stop and get off her but he continued. He then carried her to the bedroom and started kissing her again and failed to stop when she shouted at him and tried to push him away. The appellant told her that there would be consequences if she did not allow him to do what he wanted and she felt threatened and scared by this.

He then undressed her to her underwear, lay next to her on the bed and then digitally penetrated her vagina for 5 to 10 minutes. She was too frightened to say anything. He then climbed on top of her and had vaginal intercourse with her against her will. This lasted somewhere between 20 and 45 minutes, during the course of which she began to cry. It was difficult for her to say how long this lasted because of the effect of the drugs on her. He then grabbed her hair, forced her head back and orally raped her, before eventually allowing her to get up and get dressed. She said that he threatened to use a knife on her if she told the others what happened.

Shortly afterwards, C1 and J returned to the flat. C1 said that C2 looked terrified. The two young women went into the bathroom together, and C2 told C1 what had happened. C1 apologised to her for taking her to the flat. C2 was crying and C1 calmed her down. In cross-examination C2 said that she was still feeling the effects of the cannabis and C1 told her that she had had a similar experience with cannabis in the past. C1 alleged that subsequently HEF also raped her. That was a count on which he was acquitted.

Both C1 and C2 stayed in the flat overnight, a fact on which the defence understandably relied as undermining their accounts.

Next morning, C2 left the flat on her own and made her way home. C1 told the police that after C2 had left, the appellant pulled her into the living room and closed the door behind them. He started to touch her vagina over her clothing and tried to kiss her. He became angry when she moved her head away, but did not prevent her from leaving the flat and travelling home.

C2 sent a text message to C1's father telling him what had happened. When C1 got home she was distressed. Her clothing was in a state of disarray. Her father took her straight to the police station, where she was interviewed. C2 told another friend that she had been raped and that friend's mother took her to the police station, where she was interviewed.

The appellant was arrested on 25 June 2024 and interviewed twice in the presence of an appropriate adult and a solicitor. He relied upon a prepared statement in which he denied the allegations in their entirety. He stated that the allegations were false and that his communications with C1 on Instagram would demonstrate this. Apart from this, he answered ‘no comment’ to most questions put to him. Those which he did answer were reduced to agreed facts.

At trial, the defence case in respect of the counts concerning C2 was that she consented to all the sexual activity with HEF in the flat which he accepted took place whilst C1 and J were absent, and indeed that she had been the instigator of it and an enthusiastic participant. She encouraged him verbally and removed her own clothes. The defence case statement included an allegation that it was C2 who had brought the cannabis to the flat and that she had asked HEF for a Rizla to roll the spliff.

The defence case in respect of the allegations concerning C1 on 25 and 26 May 2024 was a straight denial of any sexual contact between them that weekend. HEF had told C1 that he did not want to date her anymore. Moreover, she had been seeing his friend J. Messages passing between them after the night in question would demonstrate that he had committed no crime. They included one in which C1 told him that her father had forced her to make these allegations.

The appellant gave evidence in his own defence which was broadly in line with his defence statement. He explained that he had been advised by his solicitor not to answer questions in his police interview.

In cross-examination HEF was asked about an incident when he met C1 in a park on 18 June 2024, a couple of weeks after the alleged offences were committed in the flat, and she collapsed after smoking strong cannabis which he admitted that he had given her. HEF called an ambulance and C1 was taken to hospital. Text messages were sent between HEF and C1 afterwards, in which she attributed her collapse to smoking the cannabis and he responded by telling her that she should not smoke cannabis. The defence wanted those messages to go before the jury, no doubt because it was believed that they would assist the appellant's defence. No objections were taken at the time by defence counsel to the questions asked in cross-examination about this incident, although submissions were made to the judge about certain inferences that the prosecution was inviting the jury to draw. That is a matter to which we shall return.

The question of C2's capacity to consent was not raised by the prosecution, nor was it an issue that the jury was required to determine. There was no suggestion made by C2 that the cannabis she had smoked had affected her ability to consent to sexual touching or sexual intercourse, nor was that ever any part of the prosecution case. Her own account was that she had capacity to consent but did not do so. She had made it clear to HEF that she objected to his kissing her and submitted to what had happened thereafter through fear. She was cross-examined on the basis of HEF's account that she understood what was going on, that she had encouraged him to have sex with her and was fully conscious at all times.

As defence counsel told the jury at the onset of her closing speech, this was a case which boiled down to the complainant's word against the defendant's word.

The grounds on which the single judge granted leave to appeal were:

It was further submitted that because the judge directed the jury that if they convicted on the counts against C2, they could use the evidence that they had taken into account on those counts against the appellant in relation to the counts in relation to C1 as a matter of cross-admissibility, any risk that he was wrongly convicted in relation to the counts on C2 would necessarily call into question the safety of the single verdict of guilty against him in relation to C1, which concerned the incident on the Sunday morning, after C2 had left the flat.

The single judge described the capacity groundas "just arguable". We regard that description as generous.

It was submitted in the Advice and Grounds that there is a real risk that one or more of the alleged errors materially affected the jury's conclusions on the issues of consent or reasonable belief in consent.

The ground on which the single judge refused leave has been renewed before us this morning, and Ms Rose has relied upon it as part and parcel of a pattern of misdirections by the Judge that she says, either together or singly, had an impact on the safety of the verdicts. We therefore deal with the renewed ground first. As put in the written grounds, it was that the jury were invited to draw impermissible inferences from what was described as "non-expert opinion evidence" regarding the effects of cannabis on the two complainants. The reason to address that ground first is that in our judgment it is inexplicably bound up with ground 2, the capacity ground.

The single judge was quite right to refuse leave on that ground; it is unarguable. The jury were not invited to draw impermissible inferences about the effects of cannabis and this was not a case requiring expert evidence. C1 and C2 both gave evidence about how they felt after smoking cannabis which HEF had allegedly given them. It was a matter for the jury whether they accepted that evidence, and they did not need an expert opinion on the possible after-effects of smoking cannabis to be able to decide if they believed them. The Judge was quite right to refuse the defence application for a direction that, because the jury had not received expert evidence about the cause of C1's collapse on 18 June, they could not permissibly draw the inference that it was caused by the cannabis she had smoked.

As to the incident affecting C2, which occurred about two or three weeks earlier, C2 said HEF provided the cannabis which she smoked on the night of the alleged rapes. He said she brought it with her. If it was her own cannabis, she would have been more likely to have tolerated it, but either way, whoever supplied the cannabis, the real question was how it affected C2.

In cross-examination, prosecuting counsel put it to HEF that the cannabis they smoked was "strong stuff, strong weed" and the appellant agreed. He was then asked, "Was it part of the plan to get C2 stoned?" and he denied it. His evidence was that after she smoked the cannabis, "she was fine, she was chill, no problems".

In our judgment, prosecuting counsel was entitled to explore the line of cross-examination that HEF provided the cannabis joint to C2 on the night of 25 May 2024 to make her high and therefore more vulnerable to being sexually assaulted. It was also perfectly proper for him to explore with HEF whether he had done something similar to C1. He would have been entitled to pursue that line of questioning if the complainant had alleged that she was given alcohol rather than cannabis and described the adverse impact it had on her after she had consumed it. The fact that the substance was cannabis rather than alcohol did not turn a permissible line of cross-examination into an impermissible one.

The gravamen of Ms Rose's complaint, however, is not so much to do with that line of cross-examination, as to do with some of the phraseology that was used by prosecuting counsel in the course of the cross-examination. He suggested at one point to the appellant that C2 was "knocked out" by the cannabis that she had consumed, and that phrase and a similar phrase, "knocked her sideways", were repeated in the course of his closing address to the jury. Ms Rose, in her oral submissions, expressed concern that the suggestion that C1 had collapsed as a result of the cannabis, and therefore had been rendered unconscious, was being used as a parallel by the prosecution to suggest the effects that the cannabis had had upon C2 on the night of the alleged rape and therefore there was a danger that the jury might think that she was unable to consent to the intercourse that took place.

Whilst counsel's use of the phrase "knocked her sideways" or "knocked out" to encapsulate C2's description of how the cannabis affected her was somewhat infelicitous, those phrases cannot be considered in isolation. Prosecuting counsel never suggested to the jury that C2 was unconscious, nor that she was incapacitated by the cannabis to such an extent that she was unable to give consent. Having seen the context in which those phrases were deployed, we are satisfied that there was no danger whatsoever of the jury being misled into thinking that she may have been unconscious or that the cannabis had any influence on her capacity to consent.

It is also quite clear from the defence speech that the defence did not believe that the prosecution had changed its case in the course of the trial to one which raised the issue of C2's capacity to consent. On the contrary, counsel addressed the jury on the basis that the prosecution alleged that the cannabis was part of a "nefarious plan to take advantage of the girls". She suggested it was more likely that HEF was just a teenager who smoked cannabis. She also made the perfectly proper point that the fact that C1 and HEF both assumed that the cause of C1 becoming so unwell on 18 June was her cannabis consumption did not necessarily mean that they were right in that assumption, since there was no medical evidence about what had caused C1 to collapse. However, it is clutching at straws to suggest that the jury was being invited to draw an impermissible inference as to the cause of C1 becoming unwell on that occasion simply because, despite the fact that both she and HEF drew the same obvious inference at the time, it was not confirmed by a doctor's report.

In any event, this was not a central aspect of the prosecution case. Regardless of how cannabis may or may not have affected C1 on a later occasion, or even on an earlier occasion in 2023 when she said it impaired her memory, the jury had to decide whether the cannabis that HEF and C2 both accepted that they smoked on the night of 25 May was supplied by HEF or brought to the flat by C2; whether that mattered; if it was supplied by HEF why he gave it to C2; whether it affected C2 in the way she said it did; and if so, whether the symptoms she described experiencing had any bearing on the question whether she actually consented to the sexual activity that both of them had agreed had taken place.

There was no risk, in our judgment, that the jury might have thought that there was any suggestion that the cannabis impaired C2’s ability to consent. At no stage in the defence closing speech was anything said to suggest that defence counsel considered that the prosecution case had altered in any way or that she now had to meet a case of lack of capacity. Nor does this seem to be something which was raised with the Judge. In the course of this morning's hearing the court raised questions with Ms Rose about this, and she very fairly accepted that although she did have some concerns about the way that matters were left before the jury, she did not raise them at the time.

She said it was possible at that stage that she had not appreciated the true significance of prosecuting counsel’s remarks, but then the jury returned mixed verdicts and they acquitted the appellant of all the other counts relating to C2 as well as most of the counts relating to C1. The counts on which they convicted him were the counts in relation to C2 where consent was the central and key question that they had to determine, and it was on mature reflection that Ms Rose said she came to the conclusion that there may have been a real risk that the jury had become confused about the cannabis consumption and its impact upon her capacity to consent.

That was a very fair and honest acceptance of the position by counsel. We accept of course that sometimes a misdirection may have been given to the jury in circumstances where it is overlooked at the time, and it is this court's obligation to put things right if that is so. No criticism is to be attached to Ms Rose for what happened at the trial. But looking at matters in the round, we are not satisfied that that risk has been made out in relation to C2’s capacity to consent, and that is a decision that we have reached on looking at the entirety of what happened. It does not appear to have occurred to either counsel or to the Judge, and nobody suggested to the Judge at the time, that there was an issue in relation to capacity. The Judge was not required to give a direction on a matter which was not in fact in issue before the jury.

It was not the prosecution case that C2 did not have or may not have had capacity to consent, nor could it have been, sensibly, in the light of C2's detailed account of what happened in the flat. It would have been possible for the Judge to have made it clear that it was accepted that C2 did have capacity. She could also have directed the jury that consent given whilst under the influence of drink or drugs is still consent, even if consent would not have been given whilst sober, but that if C2 did not consent, the cannabis may have affected her ability to resist or complain. In the light of hindsight, it might have been better if such a direction had been given to the jury, as it would have obviated any of the concerns that have since been raised. However, the absence of such a direction does not give rise to any grounds for doubting the safety of the conviction. The jury plainly believed C2's account of what happened and disbelieved the appellant.

Turning to the remaining ground, which also has a bearing on the issue of consent, this is a complaint about the section 34 direction given to the jury about the ‘no comment’ interview. As articulated in the written Grounds of Appeal, it is based on a non-existent premise. The jury were not told that they could potentially hold against HEF his failure to mention anything to the police about cannabis use. The Judge did not direct the jury that one of the facts that HEF had failed to mention in interview on which he now relied and which might be the basis for drawing an adverse inference was the fact that on his account C2 brought cannabis with her to the flat.

The Judge's written section 34 direction was not the first draft. After discussions with counsel, a second version was prepared which omitted any reference to a failure by HEF to mention in interview that C2 had brought the cannabis to the flat. The second version was the direction which was given. That took Ms Rose somewhat by surprise, she told us, because when she had originally objected to the initial draft the Judge had ruled against her, but obviously the Judge, on reflection, had decided to modify her draft.

The revised section 34 direction focused on the following specific facts that HEF did not tell the police in interview:

The concern expressed by Ms Rose to us about the direction in her oral submissions again fed into the question of whether or not there was a risk that the jury had been misled on the issue of consent. When giving the direction to the jury, the Judge referred to HEF's account being “that C2 consented freely and not under the influence of drugs.” We can understand why that gave rise to a concern that this implicitly suggested to the jury that the drugs might have impaired C2’s freedom to consent. That is a separate point, and different from the complaint that the jury might have thought that the prosecution case was that C2 was comatose and incapable of consent for that reason. However, in context, the focus of the Judge's direction was plainly on the absence of an explanation given to the police officers by HEF that this was consensual intercourse with the focus upon consent, rather than on the fact that C2 had consumed drugs.

Standing back and looking at the totality of the trial and the way in which the jury were directed, we do not consider that this relatively short line in the section 34 direction could possibly give rise to a real risk that the verdicts in relation to the offences committed against C2 were unsafe. Although it might have been better expressed, it went nowhere near implying that C2 may have been incapable of consenting because she had smoked cannabis. Even if it would have been better if the words "and not under the influence of drugs" had been omitted from the section 34 direction, this case did not turn on HEF’s silence in interview, but rather, on which of the two main protagonists the jury believed.

For those reasons, we refuse the renewed application for leave on the ground refused by the single judge and we dismiss the appeal on the grounds for which she gave leave.