R v Mohammed [2025] EWCA Crim 1139: Circumstantial Evidence and “More Than Merely Preparatory” Acts—Reaffirming the Galbraith/Masih Threshold for No-Case Submissions in Attempted Rape

Introduction

In R v Mohammed [2025] EWCA Crim 1139, the Court of Appeal (Criminal Division) refused a renewed application for leave to appeal against conviction on a single count of attempted rape. The case is a clear, practical reiteration of the approach to submissions of “no case to answer” where the prosecution case is circumstantial, and it clarifies—within the context of attempted rape—how the “more than merely preparatory” requirement under the Criminal Attempts Act 1981 is to be approached by trial judges and juries.

The appellant, aged 37, had been convicted of attempted rape alongside multiple counts of sexual assault, theft, and fraud. His appeal concerned only the attempted rape count. The facts involved a highly intoxicated complainant, a timeline reconstructed via CCTV and audio recordings, and a series of incriminating circumstances—partial undressing of the complainant, the appellant being naked from the waist down, contemporaneous sexual remarks, injuries consistent with resistance, and the appellant’s possession and use of the complainant’s bank cards.

Central to the appeal was the Recorder’s rejection of a half-time submission that there was “no case to answer” on the attempted rape count. The Court of Appeal endorsed the Recorder’s approach and emphasized the correct legal test derived from R v Galbraith and applied in circumstantial cases via R v Masih. It also referenced Attorney General’s Reference (No. 1 of 1992) on what constitutes acts “more than merely preparatory.”

Note: The Sexual Offences (Amendment) Act 1992 applies. Nothing should be published that is likely to identify the complainant.

Summary of the Judgment

The Court refused the renewed application for leave to appeal. It held that:

The Recorder correctly directed himself to the Galbraith test, as nuanced by Masih for circumstantial evidence, asking whether a reasonable jury, properly directed, could properly convict on the prosecution’s evidence taken at its highest.
The circumstantial evidence—partial undressing of the complainant, the appellant’s sexualized statements and conduct, injuries consistent with resistance, his own description of “dramas” when sex did not occur, and the overall timeline—was capable of supporting the inference that the appellant intended to commit rape and had gone beyond merely preparatory acts.
The question whether the conduct had crossed the line into “more than merely preparatory” was properly left for the jury, in line with Attorney General’s Reference (No. 1 of 1992).
The application was “hopeless”; nothing had been overlooked by the single judge. A 28-day loss of time order was imposed to reflect the unmeritorious renewal.

Analysis

Precedents Cited and Their Influence

R v Galbraith [1981] 1 WLR 1039:
The foundational authority on “no case to answer.” It establishes that if there is no evidence on an essential element, the case must be stopped; otherwise, where there is evidence upon which a jury could properly convict, issues of assessment and weight belong to the jury. The Recorder and both the single judge and the Court of Appeal proceeded on this footing.
R v Masih [2015] EWCA Crim 477 (Pitchford LJ at [3]):
In circumstantial cases, the judge must ask whether a reasonable jury could exclude all realistic possibilities consistent with innocence. This does not usurp the jury’s function; it frames the threshold question. The Court of Appeal here explicitly “helpfully” relied on Masih to structure its analysis. The decision confirms Masih as the controlling lens for circumstantial no-case submissions.
Attorney General’s Reference (No. 1 of 1992) [1993] QB 94:
A leading case on attempts (particularly attempted rape) under the Criminal Attempts Act 1981. It emphasizes that the law does not require the defendant to have performed the final act; the question is whether the defendant has moved from mere preparation to embarking upon the crime proper. The single judge expressly invoked this in assessing whether the conduct was more than merely preparatory.
R v Jabber [2006] EWCA Crim 2694 (approved in Goring v R [2008] UKPC 56 at [22]); R v Hedgcock, Dyer and Mayers [2007] EWCA Crim 3486; R v G and F [2012] EWCA Crim 1756:
These authorities sit within the same line reaffirming Galbraith’s approach to sufficiency of evidence and the jury’s primacy in inferential reasoning. Their cumulative effect is to caution against withdrawing a case from the jury where a rational route to conviction exists on the evidence taken at its highest.

Legal Reasoning Applied by the Court

The appellate court’s reasoning proceeds in three linked steps:

Correct Test: The Recorder asked the right question: taking the prosecution evidence at its highest, could a reasonable jury, properly directed, convict? In a circumstantial case, this includes whether such a jury could exclude realistic innocent explanations (Masih).
Evidence Capable of Meeting the Test: The prosecution’s circumstantial mosaic included:
- Contemporaneous sexualized statements by the appellant evidencing an intention to have penetrative intercourse.
- The complainant’s highly intoxicated state and vulnerability.
- Relocation to a car and the appellant being naked from the waist down when discovered.
- Partial removal of the complainant’s underwear (found around one ankle), implying prior removal of trousers.
- Physical injuries consistent with resistance and the appellant’s scratches.
- The appellant’s own account that there were “dramas” because sex did not occur in the car.
- Possession and use of the complainant’s bank cards and recovery of her purse from his car (supporting the broader narrative of opportunistic exploitation).
On this evidence, a reasonable jury could rationally infer both an intent to rape and acts surpassing mere preparation. The Court emphasized that the disputed inferences and competing interpretations were quintessential matters for the jury.
“More than Merely Preparatory” Is for the Jury on These Facts: Guided by AG’s Ref (No. 1 of 1992), the Recorder correctly recognized that whether undressing and related conduct amounted to the crime proper was a jury question. The Court accepted that the partial undressing and circumstances—particularly in combination with the appellant’s sexual admissions and the complainant’s resistance—could logically be judged “more than merely preparatory.”

Impact and Significance

This decision does not invent new doctrine, but it meaningfully consolidates and applies settled principles to a modern evidential matrix (CCTV and smartphone audio). Its practical consequences are notable:

For prosecutors: Where a tapestry of circumstantial evidence points to attempt, courts will resist removing the case from the jury. A combination of digital traces, admissions, physical circumstances (partial undressing), and resistance injuries will typically surpass the Galbraith threshold.
For the defence: Half-time submissions will struggle where multiple strands of circumstantial proof cohere. To succeed, the defence must identify a specific evidential gap on an essential element rather than rely on general criticisms of credibility or weight.
For trial judges: The judgment models a structured ruling: isolate the strands, apply Masih’s “realistic possibilities” filter, and reserve matters of inference and weight to the jury unless an essential element is unsupported.
For future attempted rape prosecutions: The case underscores that attempted rape can be proved without a “last act” toward penetration. Partial undressing and sexualized conduct, coupled with evidence of resistance and intoxication, will commonly be sufficient to go to the jury on the attempt limb.
Appellate practice: The 28-day loss of time order signals the Court’s intolerance for hopeless renewals where the single judge’s analysis is sound. It is a warning against speculative appeal strategies.

Complex Concepts Simplified

No case to answer (Galbraith): At the close of the prosecution’s case, the defence can argue that the evidence is insufficient as a matter of law. The judge must ask: taking the prosecution evidence at its highest, could a reasonable jury convict? If yes, the case continues; if not, the count is withdrawn.
Circumstantial evidence (Masih): Indirect evidence from which guilt can be inferred (e.g., conduct, opportunity, admissions, injuries). The judge considers whether a reasonable jury could exclude realistic innocent explanations. If so, the case goes to the jury; if not, it may be stopped.
Attempt and “more than merely preparatory”: Under the Criminal Attempts Act 1981, a person is guilty of attempt if, with intent to commit the offence, they do an act that is more than merely preparatory. The law does not require the final step; the issue is whether the defendant has moved from preparation into executing the crime (AG’s Ref (No. 1 of 1992)).
Attempted rape: The state must prove intent to commit rape and acts beyond preparation. Evidence can include explicit sexual statements, circumstances indicating a move toward penetration (e.g., undressing), and resistance/injury patterns. The jury assesses whether the line has been crossed.
“Reasonable jury, properly directed”: A legal yardstick used by judges to decide sufficiency. It assumes jurors follow accurate directions of law and engage in rational inference on the evidence presented.
Loss of time order: In unmeritorious appeals or renewals, the Court of Appeal may order that a period (here, 28 days) does not count toward the sentence served pending appeal. It deters hopeless applications and preserves appellate resources.
Sexual Offences (Amendment) Act 1992: Grants lifetime anonymity to complainants in sexual offence cases. Publications must avoid details likely to identify the complainant.

Key Case Features Applied to the Facts

The Court’s conclusion that the attempted rape count should proceed to the jury rested on the strength of a cumulative narrative:

Objective digital timeline (CCTV) placing the appellant with a visibly intoxicated complainant for a sustained period.
Audio recordings capturing explicit sexual intent and the complainant’s distress.
Physical circumstances in the car: the appellant naked from the waist down; the complainant’s underwear around one ankle.
Injuries and scratches indicating resistance and a struggle.
Statements by the complainant to friends describing refusal and resistance.
The appellant’s own explanation that “dramas” occurred because sex did not happen in the car—amounting to an admission of intent and failed execution.

Each strand may be equivocal in isolation, but the law permits the jury to consider the strands together. The Masih test recognizes that, in circumstantial cases, coherence of multiple indicators can persuasively exclude realistic innocent possibilities.

Practical Takeaways for Practitioners

Prosecution: Frame the case as a multi-strand circumstantial mosaic; document the transition from preparation to execution (e.g., relocation, undressing, isolation, sexual admissions). Preserve and present digital evidence in a clear timeline.
Defence: Before making Galbraith submissions, identify which essential element is wholly unsupported. Where the matrix reasonably permits a conviction, reserve arguments of weight and credibility for the jury.
Judges: In rulings on no-case submissions, expressly traverse the Galbraith/Masih questions and articulate why the inferences are for the jury where multiple strands exist.
Police/Investigators: Secure and synchronize CCTV, audio, and physical evidence. Digital contemporaneous utterances can powerfully evidence intent.

Conclusion

R v Mohammed is a strong restatement of two core propositions:

In circumstantial prosecutions for attempted rape, the Galbraith/Masih framework governs: if a reasonable jury could exclude realistic innocent explanations and convict on the evidence taken at its highest, the case must be left to the jury.
The “more than merely preparatory” requirement is satisfied where, viewed cumulatively, the conduct shows a move from preparation to execution—here, partial undressing, sexualized admissions, and evidence of resistance. Whether that threshold is crossed is ordinarily a jury question.

The decision thereby provides practical guidance for trial management in sexual offence attempt cases, underscores the probative power of modern circumstantial and digital evidence, and signals the Court’s willingness to deter meritless appellate renewals through loss of time orders. Its broader significance lies in reaffirming jury primacy in evaluating inferential evidence while offering a clear template for when no-case submissions should, and should not, prevail.