Anonymized Summary of the Opinion

Factual and Procedural Background

The Appellant was tried in the Crown Court and, on 2 October 2024, was convicted by a majority of 10-1 of the sole count on the indictment, rape, and sentenced to eight years' imprisonment. The Appellant obtained leave to appeal against conviction from the Single Judge.

The alleged offending concerned events in July 2022 at a multiple-occupancy house in The City where the complainant had been living for a few weeks. The complainant (aged about 60 and alcohol dependent) later died in May 2023 from a heart condition with alcohol-related liver disease. On the night in question the Appellant had earlier sought sex from his then-partner (Witness B) who refused; the Appellant left and returned with bottles of wine. The Appellant was subsequently found in the complainant's room and was accused of rape by the complainant and by others shortly afterwards. Police attended the following morning and recorded body-worn footage of the complainant's complaint; an ABE interview with the complainant was conducted five days after the alleged events. Forensic swabs taken later did not identify semen or DNA attributable to the Appellant. The Appellant denied the offence at interview and gave evidence at trial asserting there had been no sexual contact.

After the complainant's death the Prosecution applied under section 116 of the Criminal Justice Act 2003 to admit the complainant's ABE interview and body-worn footage. The admission of that hearsay evidence and subsequent related rulings (including an application under section 125 of the Criminal Justice Act 2003 to stop the case) were central to proceedings at trial and form the core issues on appeal.

Legal Issues Presented

1. Whether the Recorder and the trial judge were correct to admit the deceased complainant's ABE interview and contemporaneous body-worn footage under section 116 of the Criminal Justice Act 2003, despite the inability to cross-examine the complainant.
2. Whether that hearsay evidence should have been excluded as unfair under section 126 of the Criminal Justice Act 2003 or section 78 of the Police and Criminal Evidence Act 1984, given the potential prejudice to the Appellant.
3. Whether the trial judge erred in refusing to revisit the earlier hearsay ruling after the anticipated supporting witnesses had fallen away (i.e. were not called or were unreliable), such that the fairness of admitting the hearsay should be re-assessed.
4. Whether the trial judge erred in refusing the defence application to dismiss the case at the close of the Prosecution case pursuant to section 125 of the Criminal Justice Act 2003 on the basis that any conviction would be unsafe.

Arguments of the Parties

Appellant's Arguments

• The admission of the deceased complainant's hearsay evidence under section 116 should have been refused because its admission made the proceedings unfair; the judge placed undue weight on the ability to challenge the complainant's account by other witnesses and insufficient weight on the prejudice to the Appellant.
• When several anticipated prosecution supporting witnesses fell away, the defence argued the original hearsay ruling should be revisited because the premise that other witnesses would enable testing of the complainant's account had changed materially.
• At the close of the Prosecution's case the defence argued the case should be stopped under section 125 CJA 2003 because the case was unconvincing, relied heavily on untested hearsay, the complainant's reliability was compromised by intoxication and inconsistent accounts, the sole live supporting witness had admitted a significant lie, and forensic evidence was neutral—therefore any conviction would be unsafe.
• The defence also argued that, had there been no delay in charging, the complainant could have been cross-examined before her death under relevant provisions.

Prosecution's Arguments

• The complainant's account had substantial probative value and was supported by surrounding circumstances and other evidence: the Appellant asked his girlfriend for sex and said he could get sex for £10; the Appellant had been in the complainant's bedroom before his girlfriend entered and accused him; the complainant and Appellant were seen in various states of undress; and the complainant made a contemporaneous accusation of rape.
• Although other witnesses were not called for various reasons (missing, unwilling or unreliable), their absence did not render the defence prejudiced in a way that required exclusion of the hearsay; the complainant's evidence could still be assessed against other available materials and by jury direction.
• The original section 116 ruling was correct and had been properly reviewed by the trial judge in light of the changed circumstances; the trial judge's conclusion that the earlier ruling remained valid was submitted to be correct.
• The application under section 125 to stop the case was rightly refused because the statutory framework had been applied and there was no basis to conclude the case was unsafe.

Table of Precedents Cited

Court's Reasoning and Analysis

The appellate court reviewed the Recorder's initial ruling admitting the complainant's ABE interview and the trial judge's decision to allow that ruling to stand despite the subsequent non-availability or unreliability of some witnesses the Prosecution had expected to call.

The court accepted that the statutory gateway in section 116 of the Criminal Justice Act 2003 was properly engaged because the complainant was deceased. The central analytical steps taken by the judges were:

1. Assessing probative value: The ABE was the complainant's account and was the principal piece of evidence as to whether sexual intercourse had occurred; it had substantial probative value.
2. Considering supporting material: The judges examined surrounding evidence that could support or undermine the complainant's account — body-worn footage recording her contemporaneous complaint, evidence about the Appellant's prior request for sex and comments about paying for sex, evidence (from a live witness, Witness A) as to what was observed immediately before/after, and agreed facts. The forensic evidence was neutral and did not assist either side.
3. Weighing prejudice and procedural safeguards: The judges considered whether the inability to cross-examine the complainant created such prejudice as to require exclusion under section 126 CJA 2003, or section 78 PACE 1984. They concluded that any prejudice could be mitigated by careful jury directions and that the Appellant had other means to challenge the Prosecution case (including giving his own account). The court rejected the contention that the admission rendered the trial unfair.
4. Revisiting the hearsay ruling after witness attrition: The court examined whether the absence of other expected witnesses materially changed the fairness calculus. The judges concluded that the absent witnesses would likely not have provided evidence of the actual penetration and that the evidence they could have given about events before and after the alleged offence would probably have supported the complainant. The possibility that cross-examination of those witnesses might have revealed inconsistencies was considered speculative and did not warrant overturning the prior ruling.
5. Application of authorities: The Recorder and trial judge had considered relevant authorities (Horncastle, Al-Khawaja, Riat, Ibrahim and the later R v BOB formulation). The appellate court found that the judges had properly applied legal principles about admissibility, probative value, prejudice and the jury's role in evaluating evidence and credibility.
6. Section 125 application to stop the case: At the close of the Prosecution's case the trial judge refused to stop the case. The appellate court agreed that the statutory tests were properly applied and that the case was not so unconvincing that a conviction would be unsafe simply because it relied in part on hearsay from the deceased.

Overall, the court concluded that the reliability of the complainant's hearsay evidence was capable of proper testing and assessment by the jury in light of the whole of the available material, and that the directions and other procedural safeguards available did not make the trial unfair.

Holding and Implications

DISMISSED.

The appeal against conviction was dismissed. The appellate court held that:

• The Recorder was right to admit the complainant's ABE interview and body-worn footage under section 116 of the Criminal Justice Act 2003.
• The trial judge was right to refuse to revisit the hearsay ruling in light of the absence or unreliability of other witnesses, and was right to refuse the application to dismiss the case under section 125 CJA 2003 at the close of the Prosecution case.

Consequences: The Appellant's conviction and sentence remain in force. The court did not identify any basis for concluding the trial was unfair or that the conviction was unsafe. The opinion does not purport to establish a novel legal principle beyond applying existing authorities to the facts of this case; accordingly, no new binding precedent beyond the application of the cited authorities is stated in the opinion.

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