Following negotiations between the defence and the prosecution at the Crown Court, Andy Rootsey’s client avoided a potential conviction for sexual assault after the prosecution agreed not to proceed on that charge and accepted a guilty plea to a lesser charge of common assault instead.
Our client was then sentenced to a fine and left court with no conviction for any sexual offence, no prison sentence and no place on the sex offenders’ register.
The case shows what can happen when a complainant withdraws support for a prosecution, and how a pragmatic, well-judged defence approach can utilise that shift in position as a negotiating opportunity that provides a satisfactory outcome for all parties, with the least stress on everyone involved.
A night out, an allegation, and a case on camera
Our client was charged with sexual assault, contrary to section 3 of the Sexual Offences Act 2003. The allegation was that he had touched another man sexually, without consent, in a busy nightclub. For anyone facing a charge like this, the worry is not only the court case itself. It is what a conviction for a sexual offence would mean for the rest of their life.
Just weeks before trial, the complainant withdrew his support for the prosecution. Our client understandably hoped that would be the end of it. It was not. The Crown decided to continue, relying on the club’s CCTV.
The footage did show contact between the two men, including what appeared to be a smack to the complainant’s bottom. Our client did not dispute that the contact had taken place. The real question, and the one on which the whole case turned, was whether or not that touching was sexual.
On the morning of trial, the prosecution accepted a guilty plea to common assault. The sexual assault charge was dropped, and with it the lasting damage that such an allegation can do to a person’s reputation.
Why withdrawal does not automatically end a case
Many people assume that if the complainant “drops the charges”, the case is over. In England and Wales, that is not how it works. A prosecution is brought by the Crown, not by the complainant, and only the prosecutor can decide to stop it.
Complainants withdraw for all sorts of reasons. Some regret how far a drunken incident has gone, some want to avoid the stress of court, and some no longer stand by what they first said. When it happens, CPS policy is for the police to take a statement from the complainant explaining why. A good defence team will ask to see that statement, because it can sometimes help the defence case.
The prosecutor must then look at the case again. The question is whether there is still enough evidence for a realistic prospect of conviction without the complainant, and whether a prosecution is still in the public interest. The complainant’s wishes matter, but they do not decide the outcome.
What the prosecution can do next
Once a complainant pulls out, the prosecution usually has five options.
1. Drop the case. If the complainant’s account was the whole case, the Crown may discontinue or offer no evidence.
2. Force the complainant to attend. The Crown can apply for a witness summons. This is often unattractive for the prosecution because a reluctant witness who is made to give evidence often does not repeat what he first said, so this route carries real risk for the prosecution.
3. Res gestae. Statements made in the immediate aftermath, such as an excited first complaint to door staff or a 999 call may be admitted under section 118(1) paragraph 4 of the Criminal Justice Act 2003, if the maker was so emotionally overpowered by the event that the possibility of concoction can be disregarded. Body-worn footage of first police contact and any 999 call deserve close scrutiny for that reason. In this particular case no such evidence existed in this regard.
4. Use the complainant’s statement without him. This is a hearsay application under the Criminal Justice Act 2003. The law, however, sets clear limits. A witness who simply does not want to give evidence does not fall within section 116. Where the statement is the heart of the allegation and the defence cannot cross-examine the person who made it, the courts are rightly cautious of admitting such evidence.
5. Rely on other evidence. The Crown can try to prove the case without the complainant, using CCTV, independent witnesses or anything said in police interview.
In our client’s case, the Crown’s realistic options were the fourth and fifth. We were confident that a hearsay application, properly resisted by the defence, was likely to fail. That left the prosecution relying on the CCTV alone.
The turning point: was the touching sexual?
CCTV can be powerful evidence, but it has limits. It shows what happened. It cannot always show why.
To convict of sexual assault, the prosecution must prove that the touching was sexual. Under section 78 of the Sexual Offences Act 2003, touching that is not obviously sexual in itself becomes sexual only because of its circumstances or the purpose behind it. A smack to the bottom on a crowded dance floor could be read in more than one way. Horseplay, a drunken misjudgment or an unwanted but non-sexual gesture are all possibilities a jury would have to consider.
In this case, the prosecution’s account of sexual purpose depended heavily on comments our client was alleged to have made to the complainant. Those alleged comments were known only through the complainant. Without him at court to give evidence, and with the hearsay route likely closed, the prosecution could not put those comments before the jury. What remained was footage of physical contact, stripped of the words said to give it a sexual meaning.
That changed the shape of the case entirely. The evidence that our client had touched the complainant without his consent remained strong. The evidence that the touching was sexual had become thin.
Securing ‘the deal’
The English courts do not have “plea bargaining” in the American sense. They do allow the prosecution to accept a guilty plea to a lesser offence, if that plea still lets the court pass a fair sentence. Prosecutors must follow the Code for Crown Prosecutors and the Attorney General’s Guidelines on the Acceptance of Pleas, which include considering the views of the complainant. A prosecutor facing a fragile case is entitled to weigh up the risk of losing at trial.
In the Crown Court, a summary offence such as common assault can be added to the indictment as an alternative count, where it is founded on the same facts or evidence as the indictable offence charged (section 40 of the Criminal Justice Act 1988). That is what happened here. Our client accepted that he had touched the complainant without consent. He did not accept that the touching was sexual. A guilty plea to the alternative count of common assault, on a clearly non-sexual basis, reflected exactly that.
Why the deal mattered
It is tempting to think a weak prosecution case means a guaranteed acquittal. It does not. A trial would still have carried a risk of a sexual assault conviction. A jury might have watched the footage and drawn its own conclusions. Similarly, the Jury may have rejected the explanation given by the defendant in interview or from the witness box, and no defence lawyer can promise an outcome.
The consequences of that conviction would have been severe:
1. The sex offenders’ register. Where the complainant is an adult, a conviction for sexual assault by an adult offender places the offender on the register if the court imposes any sentence of imprisonment (including a suspended sentence), a hospital order, or a community sentence of 12 months or more. Being on the register means reporting personal details to the police within days of sentence, keeping them updated on changes of address and travel abroad, and remaining under those obligations for a period that can run from several years to life.
2. Prison. Sexual assault carries a maximum of 10 years’ imprisonment. Even at the lowest level of seriousness, the sentencing guidelines allow for custody, and the starting point is a high-level community order, which on its own could have meant notification.
3. Stigma. A conviction for a sexual offence follows a person through enhanced criminal record checks, job applications, professional regulation and personal relationships. It is often the label, more than the sentence, that does the lasting damage.
By contrast, common assault is a summary only offence with a maximum sentence of six months. It carries no notification requirement and none of the stigma attached to a sexual conviction. The plea removed every one of those risks at a stroke with no risk of a sexual conviction, little risk of prison and no risk of being placed on the register.
Ultimately, our client was fined. The Judge accepted that the lesser charge had not been offered before the day of trial, so our client was entitled to full credit for his guilty plea. The Judge then acceded to the defence application to deal with the case by way of a fine.
It is important of course to point out that a guilty plea should only ever be entered where the client accepts that he committed the lesser offence, and the decision is always his. Our role is to give clear, honest advice about the risks so that the client can make that choice with his eyes open, as was the case here.
What this means if you are facing an allegation
If a complainant has withdrawn from a case against you, the advice you receive at that moment can make all the difference. In our experience:
Do not assume the case is over. Prepare as though it will go to trial until the prosecution formally stops it.
The detail of the evidence matters. What the CCTV actually shows, what was said and who can prove it are often the questions that decide the case.
Hearsay applications can be resisted. The prosecution cannot simply read out a statement from a witness who does not want to attend. A properly argued response can keep untested evidence out.
There may be a better outcome than trial. A carefully negotiated plea to a lesser offence, on the right basis, can remove the risk of a far more serious conviction.
Early advice protects you. Putting forward a realistic proposal early can also protect the credit you receive for a guilty plea.
Facing an allegation of Sexual Assault
At Murray Hughman, we regularly represent people accused of serious sexual offences, including complex cases where the evidence is not what it first seems. We give clear, honest advice and we fight hard for the best possible outcome.
If you or someone close to you is facing an allegation, contact us in confidence on 020 7701 8653 or at info@murrayhughman.co.uk.
