Case No: 200703369 B5 
Neutral Citation Number: [2007] EWCA Crim 2056
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Tuesday, 10th July 2007

B e f o r e:

LADY JUSTICE HALLETT DBE 

MR JUSTICE BUTTERFIELD 
 
MR JUSTICE WILKIE 
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Application by the Crown Prosecution Service under section 58 
of the Criminal Justice Act 2003 

R E G I N A 

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MISS H NORTON appeared on behalf of the Appellant
MR A LEWIS appeared on behalf of the Respondent
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J U D G M E N T 

1.	LADY JUSTICE HALLETT:  This case is yet another sad example of what can happen when young people roam the streets of our cities vulnerable through drink and/or drugs.  A 16 year old girl came to London to celebrate the New Year.  She got drunk, she became separated from her friends and she ended up with strangers.  She had sex with one of them.  The defendant is accused of being that person.  He is now in the charge of a jury on a single count of raping her, contrary to section 1(1) of The Sexual Offences Act 2003.  
2.	At the close of the Crown's case, Mr Andrew Lewis, on behalf of the defendant, successfully made a submission of no case to answer before the trial judge, His Honour Judge McGregor‑Johnson.  The judge gave his reasons on 28th June 2007.  The Crown Prosecution Service, represented by Miss Heather Norton, seeks to appeal the judge's ruling in accordance with section 58 of the Criminal Justice Act 2003.  Given the fact that a jury remains empanelled, the application for leave has been expedited. 
3.	It is necessary to rehearse in a little detail the prosecution evidence.  On New Year's Eve 2005 the complainant, VR, and her two friends, BG and PK, traveled from their homes in the [an] area to central London.  Some time between 8 o'clock and 9 o'clock in the evening they met a friend.  He drove them to Hayes, where they bought a bottle of wine and a litre of vodka.  They also smoked some cannabis before boarding a train.  The girls originally intended to get off at Westminster, but they continued to London Bridge, on their way consuming the alcohol they had bought.  P drank the wine, V and B shared the litre of vodka.  
4.	Having seen the New Year in, the girls made their way to Elephant and Castle, where they smoked some more cannabis.  They then traveled by tube to various places, ending up at North Acton.  By this time the complainant and her friend, B, had fallen out.  V became separated from her friends.  They got off the train at North Acton, but she continued, as she thought to White City.  
5.	The complainant was very frank in her evidence about lapses in her memory.  She had no recollections of her movements between Elephant and Castle and White City.  She could not remember the argument with B.  She could not remember becoming separated from her friends.  Both P and B said that she was very drunk.  B said she needed looking after.  B also described her as stubborn and determined to get her own way.
6.	V got off the tube on her own at White City.  She could recall the BBC building, cars and lights.  On the opposite side of the road was a car containing three men, one of whom called her over.  For some unknown reason, possibly problems with a former boyfriend, she got into the car.  She sat in the back next to a man she described as Asian, said to be this defendant.  The car drove off.  
7.	In the course of the journey she said the man in the front passenger seat started “fingering” her, as in digital penetration.  She said she did not know when this started or how it happened.  She told the jury that the unknown man must have undone her jeans without her knowledge.  All she could say was that when she saw his hand between her legs, she pulled it out, she did her trousers back up and told him to get off. His response was to laugh. She said she did not consent to what the man did. 
8.	The prosecution case was that about ten minutes later the defendant asked her for sex.  She described what happened in her video taped interview as follows:
"... I just remember the man in the back saying, 'Can I have sex?' but I can't remember what I said to him and all of a sudden my trousers were like yanked down and then he was like, he'd like pulled them down to my knee and then he just like pushed my legs forward and my like jeans were like covering my face and my nose, and he was just like having sex with me and I remember I couldn't breathe or anything."
Later she said:
"I think I tried, I think I might have tried to say get off me but I don't think he could hear me because like the jeans was over my face and there was some music playing."
9.	She confirmed in her evidence that she did not want to have sex with the man, that she did not think that she did so willingly and she did not think that she would have consented.  She said she could not remember what she had said to the man because she was drunk. When pressed by Mr Lewis in cross‑examination, she said she could not recall what she was thinking or saying.  By using the word “consented” in this way, Miss Norton argued that it was clear that the complainant meant she could not say whether she had actually said "yes" or "no".  Mr Lewis objected to this interpretation of the evidence.  He argued that the complainant was clearly unable to exclude the possibility that she had said "yes" to sex.  
10.	After the intercourse the complainant said that the man kept trying to kiss her, but she pushed him away and also said "no" when one of the men in the front of the car asked if it was his turn next.  In due course the car stopped.  The men invited her to go into a house, she refused and walked off crying.  She saw a minicab and asked the driver for directions.  He offered her a lift.  Again, for some unknown reason, she accepted, and in the course of the drive the cab driver assaulted her and tried to kiss her.  She rebuffed his advances.  She subsequently told her friends what had happened.  She was persuaded to go to the police.
11.	When examined by a doctor she was asked what happened and Mr Lewis asked us to highlight her response. The doctor said:
"She was unsure if the Indian male had raped her.  She remembered having sex with him but she didn't remember if she gave her consent."
12.	The complainant herself could not recall saying this. The defendant is Albanian, not Indian.
13.	The complainant’s clothes were examined and semen was found in the crotch area of her underwear.  A full DNA profile was obtained.  This matched the defendant.  The chances of a matching profile being obtained from a man unrelated to him was estimated at 1 in 8 billion.  The forensic scientist stated that this was a conservative estimate.  Despite this, the defendant still insists that he was not the man who had intercourse with the complainant that night.
14.	The defendant was circulated as “wanted”.  He was arrested on 31st December 2006.  In interview, he denied any knowledge of the complainant and claimed that he had been in a nightclub in Enfield with a man called Tony all night.  Clearly, if the jury accepted that it was his DNA in the underwear, then his account of being in Enfield was a lie.
15.	On behalf of the defence, Mr Lewis submitted to the trial judge that there was no case to answer because the Crown had not established that intercourse had taken place without consent.  He argued that, firstly, the complainant clearly had capacity to consent because she had rejected the advances of the first and third man.  Second, absent any issue about capacity, the only remaining issue was whether or not the complainant had, in fact, consented.  Third, at its highest, the Crown's case was that she could not remember whether or not she had consented. As Mr Lewis put it to us, the Crown simply could not exclude the possibility that the complainant had said "yes".
16.	Miss Norton conceded at trial that she did not seek a conviction on the basis that consent had been withdrawn; she sought a conviction on the basis that consent had never been given. In response to the argument before us that the Crown could not exclude the possibility that the complainant had said "yes" and the Crown could not establish that the complainant had said "no", Miss Norton relied on cases such as R v Malone [1998] 2 Cr App R 447, in which it was stated in clear terms:
"There is no requirement that the absence of consent has to be demonstrated or that it has to be communicated to the defendant for the actus reus of rape to exist."
Further in the judgment it is said:
"It is not the law that the prosecution in order to obtain a conviction for rape have to show that the complainant was either incapable of saying no or putting up some physical resistance, or did say no or put up some physical resistance."
17.	This statement of principle, Miss Norton argued, supported her contention that the Crown does not need to establish that the complainant said "no" to the defendant, or that the complainant had not said "yes".
18.	She submitted the issue here was simply whether or not there was sufficient evidence from which the jury could conclude that the complainant did not consent.  She argued there was ample evidence to that effect.  The complainant said she did not consent to sex when she got in the car and she did not consent to the fingering of her by the male in the front seat. Thereafter the alleged rapist (a man she had only just met) yanked her clothes down suddenly and pushed her into position. She had said that she did not think that she would have consented to intercourse in these circumstances.  She also suggested that she may have told the man to get off her because she did not want to have sex with him.  When he tried to kiss her, she pushed him away and she did not think she would have taken part in sex willingly.  Miss Norton also reminded us that she cried as she left the scene.  She said that she felt disgusted with herself and she did not think she would have just gone along with sex.
19.	Miss Norton argued further that even if the complainant had said "yes" to intercourse ‑ which, on the facts of this case, she maintained was highly implausible ‑ there remained an issue as to whether or not she had the capacity to consent.  There was ample evidence from which the jury could have concluded that she did not have such capacity.  She is a small girl, just 5 foot 3 in height, weighing 8 stone 3 pounds, aged 16, who on any view had consumed half a litre of vodka and smoked cannabis prior to the incident.  She was described as very drunk and in need of being looked after.  Miss Norton reminded us she could not remember details of her journey and some of what happened when she was sitting in the car.  She also had little recollection of the subsequent assault at the hands of the minicab driver.
20.	Despite objection from Mr Lewis, Miss Norton also attempted to rely upon the fact that the jury could find the defendant had lied about having sex with the complainant that night.  At trial she conceded ‑ and, by the sounds of it, immediately regretted the concession ‑ that any lies told by the defendant would only be relevant to his state of mind and whether he reasonably believed that the complainant was consenting.  She now seeks to withdraw that concession.  She argues that if the defendant did lie and he was the man who had sex with the complainant, his lie could well go to the issue of consent and capacity to consent.  If the defendant lied about his knowledge and involvement because he did not reasonably believe that V was either consenting or had capacity to consent, she argued that would be cogent evidence to be taken into account in deciding whether she in fact consented or had the capacity to consent.  If the defendant was the man, his knowledge and/or belief would be highly material evidence.
21.	Mr Lewis argued that the complainant herself did not assert that she lacked the capacity to consent; she simply suggested that she had gaps in her memory.  He maintained that her evidence supported his contention that she was able to withhold consent, for example from the first man and the minicab driver.  Further, he argued that she had a good memory of some of the detail of that night, for example what she saw when she got out at White City and some of the detail of what went on as she got into the car.
22.	The judge, in his ruling, observed that, at its highest, the complainant's evidence was that she did not think she would have consented.  He stated that the prosecution accepted the complainant could not say that she did not say "yes". He moved immediately from the issue of whether or not she had consented to the issue of whether there was evidence that she lacked the capacity to agree by choice as a result of taking drink and drugs.  He stated that he took into account the decision in R v Bree [2007] EWCA Crim 804.  He found that although there was evidence of drunkenness, it was insufficient to allow a jury safely to conclude that the complainant had lacked the capacity to consent.  He pointed to evidence which supported the defence submission that immediately before and after intercourse the complainant had demonstrated a capacity to agree or disagree by choice.  He also referred to the evidence of the complainant's friends that although they said she was very drunk, they also said she was capable of expressing herself clearly, being stubborn and insisting on doing what she wanted.
23.	Miss Norton placed some reliance upon the decision in Bree, to which the judge referred.  She placed reliance upon it in general, but she also placed reliance upon it in particular insofar as the President, in giving the judgment of the court, referred to the well publicised case of R v Dougal heard at the Swansea Crown Court.  This was a case in which the prosecution offered no further evidence where the complainant could not remember giving or withholding her consent.  At paragraph 32 of Bree, the court observed:  
"Without knowing all the details of the case, and focusing exclusively on the observations of counsel for the Crown in Dougal, it would be open to question whether the inability of the complainant to remember whether she gave her consent or not might on further reflection be approached rather differently.  Prosecuting counsel may wish he had expressed himself more felicitously." 
24.	Bree was a case, Miss Norton reminded us, in which the complainant had not said "no" to intercourse with the defendant. She had a patchy recollection of events and she could not say whether or not she was responding to the defendant's advances.  
25.	In Bree the observations of the court in R v Lang [1976] 62 Cr App R 50 are quoted with approval.  In a case of rape where there was evidence of drink and the issue was consent, "the critical question is not how she came to take the drink, but whether she understood her situation and was capable of making up her mind… [attention should have been focused upon] the state of her understanding and her capacity to express judgment in the circumstances".  This principle was emphasised in Bree, where the court held:
"... as a matter of practical reality, capacity to consent may evaporate well before a complainant becomes unconscious.  Whether this is so or not, however, is fact specific, or more accurately, depends on the actual state of mind of the individuals involved on the particular occasion." 
26.	Before stating our conclusions, it is worth noting our powers.  Under section 61(1) of the Criminal Justice Act 2003 this court has power to confirm, reverse or vary any ruling to which the appeal relates.  Section 67 provides:
"The Court of Appeal may not reverse a ruling on an appeal under this Part unless it is satisfied ‑ 
that the ruling was wrong in law, 
that the ruling involved an error of law or principle, or
that the ruling was a ruling that it was not reasonable for the judge to have made."  
27.	In the time available for argument, we have been asked to approach this case simply on the basis that it is section 67(c) which applies here.
28.	In most cases this court will take some persuading to exercise its powers under section 61(1) to reverse a ruling made by a trial judge based on his assessment of the evidence. He will have had the inestimable advantage of having seen the witnesses give their evidence and having heard their evidence being tested.  A trial judge will usually be in a far better position than this court to assess the strength of the evidence at the close of the Crown’s case.  Unusually, however, this is a case where the Court of Appeal is in a relatively good position to judge whether or not the case should have been left to the jury.  We have a full transcript of the complainant's video‑taped interview and we have a transcript of her evidence.  It is also common ground that the complainant appears to have been a honest witness, doing her best to recall what had happened, and was unusually frank.  Thus, her credibility is not in issue and her reaction to questioning is of limited significance. 
29.	We must focus on the evidence called before the jury to prove the following four issues:
whether sexual intercourse took place between the defendant and the complainant; 
ii. whether the complainant in fact consented to intercourse; 
iii  whether the complainant had the freedom and capacity to consent; and, 
iv. whether the defendant reasonably believed that she consented.
30.	Given the DNA evidence, the jury may have little difficulty with the first question ‑ that is not a matter for us.  As to the next three questions, whatever concessions made by Miss Norton in the heat of argument, in our judgment the jury would be entitled, as a matter of law, to bear in mind any lies, if that is what the jury find them to be, told by the defendant as to whether or not he had sex with the complainant on the night in question.  If the jury decided he lied because he knew the complainant was too drunk to consent or knew that she in fact did not consent, that would undoubtedly help them in their task of assessing whether he raped her.  He was better placed than anyone, if he was the man concerned, to form a view as to the complainant's condition and attitude.
31.	We are satisfied on our review of the evidence, helpfully summarised by Miss Norton and by Mr Lewis that, with respect to the very experienced judge, there is here sufficient evidence of rape to be left to the jury.  As was pointed out in argument, whatever progress Mr Lewis had undoubtedly made in cross‑examination, in re-examination the complainant insisted she did not want to have sex when she got into the car, she did not want to have sex when she found the clothing on her face and she told the man to get off during the course of intercourse.  The fact that she did not say "no" at the moment of initial penetration is not, in our judgment, fatal to the prosecution case.  
32.	We are satisfied that this was a ruling that it was not reasonable to make within the meaning of section 67.  The judge has erred, in our view, by trespassing too far into the jury's territory by withdrawing the case from them.  It was for the jury, not the judge, to decide, on the basis of the evidence called, whether, on these facts, in this case, the complainant had the capacity to consent and/or in fact consented to intercourse or not.  
33.	To our mind, despite Mr Lewis' eloquent efforts, his submissions are based to a large extent on the premise that because the complainant cannot remember if she consented or not, that is fatal to the prosecution.  This principle, if it is such, was expressly disavowed by this court in Bree: see paragraphs 30 to 32.  As Miss Norton observed, Mr Lewis' arguments are all good jury points.  No doubt they will be deployed to great effect in his closing speech, but in our judgment that is exactly where they should be deployed.  This is pre‑eminently a case for a jury.
34.	Issues of consent and capacity to consent to intercourse in cases of alleged rape should normally be left to the jury to determine.  It would be a rare case indeed where it would be appropriate for a judge to stop a case in which, on one view, a 16 year old girl, alone at night and vulnerable through drink, is picked up by a stranger who has sex with her within minutes of meeting her and she says repeatedly she would not have consented to sex in these circumstances. 
35.	Accordingly, we give the Crown Prosecution Service leave to appeal the ruling and we allow the appeal.  The ruling is quashed.  The case will be remitted to the Crown Court for the trial to continue as soon as possible.  
36.	We understand that the judge has sensibly made arrangements for the jury to be contacted so that they can resume the trial as soon as possible, and we note ‑ and are delighted to note ‑ that the judge was very careful in giving his ruling and telling the jury they must go away for a short time, not to give them any hint of what was afoot.  They can therefore resume this trial blissfully ignorant of the judge's ruling and this appeal.  
37.	Given this matter is going back for trial, the reporting restrictions must stay in place.  There must be no reporting of this case until the trial is concluded.
38.	LADY JUSTICE HALLETT:  Mr Lewis, Miss Norton, thank you for your efforts.  You last were doing this trial on 28th June.  What is the prognosis?  When are you expected to resume as you now have to?
39.	MISS NORTON:  Tomorrow.
40.	MR LEWIS:  The judge indicated to the jury that the court would contact them today and they would try to resume tomorrow morning.
41.	LADY JUSTICE HALLETT:  Good.
42.	MR LEWIS:  That is the plan.
43.	LADY JUSTICE HALLETT:  Thank you both very much.