Sadeer [2018] EWCA Crim 3000
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R v Sadeer [2018] EWCA Crim 3000 concerned an appeal against conviction for attempted rape, in which the Court of Appeal (Lord Justice Bean, Mr Justice King and Her Honour Judge Deborah Taylor, sitting as a judge of the Court of Appeal) allowed the appeal and quashed the conviction on the ground that there was no case to answer.
The appellant had pleaded guilty to kidnapping and inflicting grievous bodily harm. He stood trial for the anal rape of a teenage girl, RP, at an address in Rochdale. The prosecution case was that RP had been taken to the address and anally raped, and that afterwards the appellant, whom RP knew as “Sid”, had asked her to perform oral sex on him. She had refused and vomited over him, and the oral sex did not take place. The appellant’s case was that he had not been present at all.
When RP gave evidence in chief by way of a video‐recorded interview and was then cross‐examined, it became clear that she could not identify the appellant as having taken part in the anal rape. The prosecution then applied for leave to amend the indictment to add a new count (count 14) charging the appellant with attempted rape, particularised as an attempt intentionally to penetrate RP’s mouth with his penis without her consent. The judge granted the application. At the close of the prosecution case, the judge directed a verdict of not guilty on the anal rape count but rejected a submission of no case to answer on count 14. The appellant gave evidence denying presence or involvement. The jury convicted on count 14. The appellant appealed by leave on two grounds: first, that the acts alleged were only preparatory and could not found a conviction for attempted rape; and second, that the amendment had been made too late and should have been refused. The Court considered only the first ground.
RP’s evidence was that after the anal rape she had got up, and the appellant had asked her for a blow job, at which point he was sitting on the bed and had his penis out. She had said no and was then sick all over him. She did not give any further detail in cross‐examination or re‐examination. The judge directed the jury that an attempt required an act more than merely preparatory to the offence itself, indicating that the defendant had embarked upon the crime properly intending it should take place, as opposed to simply getting ready to do so. In the narrative part of the summing‐up, the judge said that the prosecution alleged the appellant had approached RP as she lay on the bed, requested oral sex and taken his penis from his trousers, which were said to be acts more than merely preparatory in the circumstances of RP having just been raped, being drunk, distressed, in pain and vulnerable. The judge stated that the defence case was that the incident never happened and that RP’s evidence was inconsistent and incapable of making the jury sure.
Lord Justice Bean, giving the judgment of the Court, held that the judge’s summary of the defence case on count 14 was inadequate because it omitted Miss Johnson’s submission, properly made, that even if everything happened as alleged the conduct still did not constitute attempted rape. The way the judge had put the case seemed to have encouraged the jury to think the choice was between accepting the prosecution case and convicting, or accepting the appellant’s denial of presence. The Court considered that at the close of the prosecution case there was no case to go to the jury on either element of the offence, namely that the acts were more than merely preparatory or that the appellant intended to proceed regardless of lack of consent. The prosecution had sought to rely on the context, submitting that because the incident followed the anal rape at which the appellant was present the jury were entitled to conclude that taking his penis out and asking for oral sex was more than merely preparatory and that he intended to proceed irrespective of consent, being stopped only by RP being sick on him. The Court rejected this submission. The context was entirely equivocal. The jury had to proceed on the assumption that the appellant had not taken part in the anal rape, notwithstanding his opportunity to do so. After taking his penis out, he had not simply advanced and tried to put his penis into RP’s mouth but had asked her for a blow job, to which she had answered no. Later he had driven her home. The context did not establish that he intended to proceed irrespective of lack of consent. The Court emphasised that the statutory test under section 1(1) of the Criminal Attempts Act 1981 required an act more than merely preparatory to the commission of the offence, and that this test was not capable of much elaboration.
For both reasons, the submission of no case to answer on count 14 should have been upheld. In short, the Court allowed the appeal and quashed the conviction for attempted rape because the evidence was insufficient in law to establish either that the appellant’s acts were more than merely preparatory or that he intended to proceed regardless of consent.
R v Qadir and Khan [1997] 9 Archbold News 1