Anonymised Summary of Opinion

Factual and Procedural Background

Opinion delivered by Judge Andrews. The Appellant was convicted after a trial at The Crown Court in The City before Judge Moore and a jury of rape (count 1) and breach of a Sexual Risk Order (SRO) contrary to section 122H of the Sexual Offences Act 2003 (count 2). He had earlier pleaded guilty to an unrelated offence of conspiracy to steal from Company A at an earlier Crown Court; that matter was transferred to the trial court for sentence. The Appellant was on bail for the theft-related offence when he committed the offences underlying counts 1 and 2. The Appellant subsequently applied for leave to appeal against conviction and sentence; both applications were renewed after an earlier refusal by the Single Judge.

Background facts (as found or alleged at trial): on the evening in question the Complainant had consumed alcohol at a business event, accepted a lift from the Appellant in return for a petrol contribution, and was driven to a hotel in The City area where, the prosecution alleged, the Appellant carried the intoxicated Complainant into a room, undressed her and had sexual intercourse while she lacked capacity to consent. CCTV and hotel staff evidence supported that the Complainant was so intoxicated she could not stand unaided. The Appellant denied non-consensual sex, claiming the intercourse was consensual and that he had informed the Complainant about the SRO; he gave evidence at trial and had given a largely 'no comment' police interview.

Legal Issues Presented

1. Whether the trial judge erred in refusing to sever the count of breach of the SRO from the rape count on the ground that the SRO's existence was highly prejudicial to the Appellant.
2. Whether the directions to the jury on the potential effect of the Complainant's intoxication on her reliability were inadequate.
3. Whether the directions to the jury on consent in the context of a highly intoxicated complainant were legally sufficient.
4. Whether the judge erred in giving a direction under section 34 of the Criminal Justice and Public Order Act 1994 concerning adverse inferences from the Appellant's 'no comment' interview, particularly where the Appellant said he acted on legal advice.

Arguments of the Parties

Appellant's Arguments (presented by Attorney Milne)

• The SRO's existence was so prejudicial that the count for breach should have been severed; no jury direction could remove the risk of fixation on the Appellant as a "sexual predator".
• The judge's directions on the Complainant's intoxication did not adequately address how intoxication might affect her reliability as a witness.
• The judge's directions on consent in the context of intoxication were defective.
• The s.34 direction was inappropriate because the prosecution failed to provide the jury with a list of the questions asked in interview and other relevant interview particulars; the jury could not properly assess whether the Appellant could reasonably have been expected to mention certain facts.

Respondent's Arguments

• The counts were properly joined; the SRO and the rape were inextricably linked and central to the single issue of consent, and trial together avoided requiring the Complainant to give evidence twice.
• The trial judge conducted the joinder/severance exercise in accordance with rule 3.29(4) of the Criminal Procedure Rules and gave robust directions to the jury to mitigate prejudice.
• The judge's directions on intoxication and consent were appropriate and consistent with authority (including R v Bree).
• The s.34 direction was properly given because the jury could consider whether the Appellant could reasonably have been expected to volunteer key facts even without being shown specific interview questions, consistent with appellate authority.

Table of Precedents Cited

Court's Reasoning and Analysis

The court agreed with the Single Judge that the refusal to sever count 2 was within proper judicial discretion. The trial judge had applied rule 3.29(4) of the Criminal Procedure Rules, considered relevant factors, accepted there was a risk of prejudice but concluded that robust directions would overcome it, and distinguished the defence authorities Laycock and Lewis for sound reasons. The court emphasised that the counts were properly joined because they arose from the same facts, were inextricably intertwined, and the central issue for both counts was consent; inclusion of the SRO count avoided the need for another trial and potential further trauma to the Complainant.

On intoxication and witness reliability, the court found no need for extended directions about general effects of alcohol; the judge had dealt sufficiently and fairly with the issue in the summing-up. On consent in the context of intoxication, the court approved the judge's direction that consent given while disinhibited by drink remains consent, citing alignment with R v Bree.

Regarding the s.34 (Criminal Justice and Public Order Act 1994) direction, the court considered the omission by the prosecution of a list of interview questions. It analysed Harewood and Green, noting the statutory test requires whether, in the face of questioning, a fact was one which the defendant could reasonably have been expected to mention and that it is not necessary the jury know of specific questions. The judge's direction focused on the principal facts not volunteered in interview (knowledge of the SRO, that sexual intercourse occurred, and that it was consensual), and the court concluded a reasonable jury properly directed could find the Appellant could reasonably have been expected to volunteer those matters. The s.34 direction was therefore appropriate.

On sentence, the court found the sentencing judge's finding that the Appellant was a 'dangerous offender' to be open to, and plainly available to, the judge. The court accepted the sentencing judge had regard to the pre-sentence report, which assessed high risk of sexual reoffending and concerning characteristics, and had properly considered youth and maturity (applying Clarke). The judge categorised the rape as harm Category 2 and culpability B, increased the starting point for specified aggravating factors, avoided double counting by not treating the SRO breach as an aggravating factor, applied the Rape guideline principles on good character, and structured an extended sentence with determinate custodial term and extension period while imposing concurrent shorter sentences on the other offences to reflect totality. The court concluded the sentences and the 20-year sexual harm prevention order were neither wrong in principle nor manifestly excessive.

Holding and Implications

REFUSED: The renewed applications for leave to appeal against conviction and against sentence were refused.

Direct consequences: the Appellant's convictions and the sentences imposed (including the extended custodial sentence and concurrent determinate sentences, and the 20-year sexual harm prevention order) stand. The court did not identify any basis for concluding the convictions were unsafe nor that the sentences were excessive. The opinion does not purport to create new legal precedent; it affirms the trial judge's exercise of discretion and the application of existing authorities.