Rezart Lame [2019] EWCA Crim 729

The applicant was convicted of three counts of rape, assault by penetration and one attempted rape.  He was sentenced to a total of 9 years’ imprisonment and a SHPO.

The applicant and complainant met on a dating app and went to the applicant’s flat after a date and kissed. The prosecution case was that the applicant then forced her to have sex vaginally, then anally raped her, forced his penis into her mouth and attempted to rape her in the morning. The defence case was that they had consensual sex, he accidentally inserted his penis into her anus, of which she made no complaint, and they had further consensual sex the following morning.

There were two proposed grounds of appeal, that his representatives failed to obtain and call good character evidence and the judge failed to give a sufficient direction relating to s34 of the Criminal Justice and Public Order Act 1994.

A good character direction was given, and the legal representatives said they had asked for names of character references, but none were provided. The fact that they could have reacted to the applicant’s failure does not provide a justiciable ground of appeal.

Section 34 permits an inference to be drawn but s38(3) prevents a conviction based solely on the adverse inference.

The Crown relied on the fact that the applicant said in evidence that it seemed to him the complainant had asked to go with him to the car wash and he said she could not, this was provided as a reason why she may make a false complaint. He had not said this in interview.

Held: in this case there was no possibility of the applicant being convicted wholly or mainly on the strength of the adverse inference. The ground of appeal is not arguable, permission was refused.