Ryan Mark P [2019] EWCA Crim 1247

The appellant faced three allegations of rape and was convicted at a third trial of one allegation, being acquitted on the other two. The complainant, E, was the step niece of the appellant, the allegations arose on the same evening after a party. The appellant was alleged to have gone into the room where E was in bed drunk, she said he had
vaginally then anally penetrated her, returning 20 minutes later to vaginally penetrate her again. The defence case was that the allegations were false and fabricated.

The first ground of appeal was that due to a lack of disclosure the defence were not in a position properly to pursue the potential for “confabulation” on the part of E. The second ground was that the verdict on count 1 was inconsistent with the acquittals on counts 2 and 3 on the basis the allegations were part and parcel of one incident over a period of 20 minutes.

The Court found it difficult to understand the basis for ground 1 of the appeal. At the first trial counsel sought to promote a possible issue of confabulation and sought an adjournment for that purpose but failed. The fact remains that after the first trial the defence, if it saw fit, could have adduced expert evidence on that issue. Counsel at the first trial appeared on the appeal but not the intervening trials and argued that relations between him and the judge had not been good, and it infected all that followed thereafter. That was not accepted, the Court was satisfied the defence had been given full and proper disclosure.

As to the second ground in his summing-up the judge directed the jury to consider the count separately and the defence did not challenge the way in which the summing-up was put on that point. One can see a logical basis for the jury’s conclusions on the evidence, most of the points raised were, in reality, jury points. The jury were properly directed in law, there was no unfairness in the trial approach, and they were entitled to reach the conclusions that they did. The second ground was also rejected, and the appeal dismissed.