PCD Solicitors are pleased to have secured the quick acquittal of a client prosecuted for rape, assault by penetration, and physical assault. Following effective arguments made by the defence, the judge concluded that the evidence presented by the prosecution was weak, vague and contradictory, and ruled that the defendant had ‘no case to answer.’ Subsequently, the jury was directed to acquit our client on all counts.
What is ‘no case to answer’?
Around halfway through a criminal trial, the defence has the opportunity to make a ‘no case to answer’ submission. This takes place after the prosecution have closed their case, and before the defence presents their evidence.
These submissions are made to the judge, and are used to highlight any serious discrepancies, flaws or weaknesses in the prosecution’s evidence. In considering this submission, the judge must apply two legal tests, derived from the second limb of R v Galbraith (1981). These are:
- Is there any evidence against the defendant?
- If there is evidence against the defendant, is this evidence strong enough that a jury can safely consider a conviction?
If the answer to either of these tests is ‘no’, then the judge must dismiss the case.
Securing a ‘no case to answer’ verdict is rare, and difficult to achieve; usually, judges will prefer to refer cases to the judgement of a jury, who will ultimately decide on the defendant’s guilt. As a result, these rulings are only made when the prosecution has presented a case that is inherently flawed, vague or contradictory, or where the judge is not satisfied that the jury will be able to safely convict due to very weak or circumstantial evidence. Making these submissions requires a robust and proactive defence with an acute understanding of the prosecution’s case, and an awareness of the technicalities and procedures of the trial process.
Background:
Client M instructed PCD Solicitors shortly after being charged with multiple serious offences. These were:
- Count 1: Rape by oral penetration without consent, contrary to s.1 of the Sexual Offences Act 2003;
- Count 2: Assault by penetration, contrary to s.2 of the Sexual Offences Act 2003;
- Count 3: Causing a person to engage in sexual activity without consent, contrary to s.4 of the Sexual Offences Act 2003, and;
- Count 4: Assault occasioning actual bodily harm, contrary to s.47 of the Offences Against the Person Act 1861.
Each of these charges are extremely serious, and carry significant custodial sentences. Rape and assault by penetration both carry a maximum sentence of life imprisonment; causing a person to engage in sexual activity without consent with penatration, as alleged in this case, also carries a life sentence. If convicted, Client M was facing a lengthy prison sentence, as well as registration as a sex offender and likely restrictive measures such as a Sexual Harm Prevention Order (SHPO) on his release.
Charges were brought after a report was made by a single female complainant, who alleged that Client M had raped her in a bathroom during a house party. She initially claimed that she had entered into sexual contact with Client M willingly, but this had become non-consensual. Client M repeatedly denied these allegations, and entered a ‘not guilty’ plea.
Our Approach:
Following our instruction, PCD Solicitors undertook a thorough review of the prosecution’s evidence, which was based on an initial interview with the complainant, subsequent cross-examination footage, and medical tests. During this process, we advised Client M in the instruction of defence counsel from our network of barristers to support our assessment, and provide effective advocacy at trial. Immediately, we identified significant discrepancies in the evidence and advised on making a ‘no case to answer’ submission.
During this submission, our barrister argued that:
- There were significant contradictions in the complainant’s account of events;
- The complainant’s recollection of events was vague, and affected by her consumption of drugs and alcohol;
- Although no fault of the complainant, charges were brought by the Crown Prosecution Service (CPS) a long time after she had made her report, and therefore;
- There was insufficient evidence to secure a safe conviction.
This was based on multiple factors. Although the complainant had been quick in making her report, her account of events changed considerably between her initial interview and cross-examination. She repeatedly contradicted whether oral sex with Client M had been consentual or not, how or at what stage she allegedly withdrew her consent, and whether she attempted to leave the bathroom or not.
Moreover, the complainant freely admitted to being under the influence of illegal drugs and alcohol at the time of the encounter, and said that her recollection of events was therefore ‘blurry.’ She also admitted to remaining at the party after the encounter had taken place, and engaging in seemingly friendly and light hearted communication with the defendant over text the following day. In court, she said that she ‘had not realised’ that the encounter had been non-consensual until describing events to a friend, and it was only after this conversation that she made her report to the police. As consenting to sex at the time - and only retrospectively deciding that consent was not given - is not considered rape, this brought into question the whole basis of her allegation.
The Outcome:
After the defence’s submission had been made, the judge considered the extent to which a jury could safely convict on the prosecution’s evidence. He accepted that:
- The complainant's evidence was inherently vague;
- There were significant contradictions between her interview and cross-examination, and;
- The timing of the alleged withdrawal of consent was unclear and inconsistent.
He subsequently ruled that the defendant had no case to answer, and instructed that it be withdrawn. The prosecution declined their right to appeal this decision, and the jury was instructed to return a ‘not guilty’ verdict on all counts. Client M was therefore acquitted on all four counts, and avoided wrongful conviction as a sex offender.
On the result, Marcus Johnstone, solicitor and managing director, said:
‘We are very pleased to have secured such a rare decision in this case - protecting Client M from a long trial on the basis of weak and unsubstantiated evidence.
In rape cases like these, the prosecution often relies on the complainant’s account - or ‘live evidence’ - as their primary piece of evidence. This comes with its own challenges: the more credible the live evidence is, the more likely a jury is to return a guilty verdict.
But when this evidence is weak and flawed, and affected by significant changes or contradictions, it is incumbent on the judge to exercise their prerogative in seeing the case thrown-out of court.
We are very happy to have made such compelling and effective representations in this case, and therefore shielded Client M from a potential unsafe conviction.’
PCD Solicitors are a nationwide criminal defence firm, specialising in defending and appealing false allegations of sexual crimes. If you or someone you know are being investigated for rape or similar offences, you can contact our team here.