R v G – Rape and Sexual Assault at Inner London Crown Court – 2023

The complainant was said to be so intoxicated she could not have reasonably provided consent to any sexual activity. The Prosecution relied upon CCTV evidence depicting the complainant completely unconscious on the bar room floor where it was said that the defendant could be seen to sexually assault her on camera before dragging her off, out of camera shot, in order, the prosecution claimed, to rape her.

The complainant alleged that she had come around to find the defendant having sexual intercourse with her before fleeing the bar and immediately reporting the matter to Police. The defendant denied sexually assaulting the complainant and denied rape, relying upon expert medical evidence, obtained by the defence, that confirmed that penile penetration was virtually impossible for the defendant to achieve due to a pre-existing medical condition and that rather than sexually assaulting the complainant he had been trying to rouse her.

The case involved a litany of errors and failings on behalf of the Police from the outset of the investigation, including, the loss of the complainants clothing, failure to record witnesses details, failure to properly store body worn footage and most critically of all, the loss of all the complainant’s forensic samples including blood/urine samples and vaginal swabs which would have provided strong evidence, one way or the other, as to whether penile penetration had in fact taken place.

The Defence made an application to stay the proceedings on the basis that the loss of evidence by the prosecution meant that a fair trial was no longer possible in circumstances where the lost evidence was highly relevant to the central issue of the complainant’s level of intoxication, her credibility and whether or not an act of vaginal penetration had taken place.

The application was granted, and the Judge stayed the proceedings, citing the fact that the investigation had been “woeful” and “negligent”.   The Judge ruled that the defendant could not have a fair trial and regarded the circumstances as being similar to those in the case of R v Ali [2007] EWCA Crim 691. The Judge relied on the fact that there was no evidence to support the bare allegation of rape and that the complainant had a confused and limited recollection.

Upon appeal by the Prosecution against the terminatory ruling, The Court of Appeal reversed the abuse of process ruling on the grounds that the Judge had fallen into error in finding that there was an “evidential vacuum” in the case and failed to consider properly the evidence that did exist in support of the prosecution case which meant that a fair trial was possible, namely the complainant’s account, the CCTV (which did not show any rape but showed her incapacity to consent to any sexual activity which may have occurred shortly after), the “first complaint” evidence and the potential for the Defendant to give/call evidence. The case was reported as Regina v ANP [2022] EWCA Crim 1111

The case has also the subject of legal commentary and analysis in a variety of publications “abuse-of-process-for-lost-evidence-alive-and-kicking”

Following the reversal of the abuse of process ruling, the matter was re-listed for trial in April 2023.

In the meantime, the complainant’s samples and swabs were, by pure chance, found in a police cupboard which was being cleared out, nearly 4 years after they had been lost.  They were sent for analysis (the blood and urine samples showed that the complainant was highly intoxicated at the time and the vaginal swabs were negative for any of the Defendant’s DNA). The Prosecution would then however attempt to rely upon the contention that as the samples had been incorrectly stored for 4 years any available DNA may have degraded. Similarly the Prosecution claimed that the penile swabs, which had not been lost, that had been taken from the defendant shortly after the time of his arrest, may have been negative for the complainants DNA as he may have washed his penis before the swabs were taken.

At trial, the Defendant was unanimously acquitted of both Rape and Sexual Assault after a short jury deliberation.

The case raised a number of interesting questions including whether the Court of Appeal were right to reverse the Judge’s ruling on abuse of process in circumstances where the Defendant faced a bare allegation of rape and nearly all of the critical evidence which may have assisted him was lost due an undoubtedly negligent police investigation.

Gudrun Young KC of 2 Hare Court Chambers was instructed Counsel