Ferriter, R. v

An attempted rape conviction requires proof both of an intention to commit rape, rather than a lesser sexual assault, and of conduct going beyond mere preparation. The question on conduct is whether the defendant has actually tried to commit the offence, rather than merely made ready for it.

Evidence of a sexual purpose, including an attempt to remove clothing, may establish sexual assault but does not without more establish the specific intent required for rape. Where the jury’s necessary findings establish sexual assault, the Court of Appeal may quash an unsafe attempted rape conviction and substitute sexual assault under section 3 of the Criminal Appeal Act 1968.

The defendant was convicted of attempted rape after attacking a lone barmaid behind the bar of a public house. The jury also had a count of sexual assault before it. The defendant had tried repeatedly to pull down the complainant’s trousers during the struggle.

On appeal, he contended that his conduct was no more than preparatory and that the evidence did not establish an intention to rape. The central issues were whether the conduct amounted to an attempt and whether it supported the distinct inference of an intention to rape rather than to commit a lesser sexual assault.

Appeal allowed. The conviction for attempted rape was quashed. A conviction for sexual assault was substituted, with a sentence of three and a half years’ imprisonment.

1. Attempted rape requires proof of a specific intention to rape and conduct going beyond mere preparation. The court adopted the helpful inquiry from R v Geddes [1996] Crim LR 894: whether the defendant has actually tried to commit the offence rather than merely got ready, positioned or equipped himself to do so.

2. The defendant’s physical attack and repeated attempts to pull down the complainant’s trousers plainly went beyond preparation. He was already trying to commit a sexual offence. The court noted that Beaney [2010] EWCA Crim. 2551 had treated substantially less explicit conduct as sufficient to pass the preparation threshold.

3. There was ample evidence of a sexual intention. The jury was entitled to reject the defendant’s assertion that he sought only money. However, there was no evidence capable of establishing an intention to commit rape, as distinct from an intention to commit another serious sexual assault. The Crown properly accepted that evidential gap. The attempted rape conviction was therefore unsafe.

4. The jury’s necessary findings established a sexual assault. Under section 78 of the Sexual Offences Act 2003, conduct may be sexual because a reasonable person would regard its purpose as sexual, even if its nature might otherwise be equivocal. That was plainly so here.

5. Section 3 of the Criminal Appeal Act 1968 applied. The court substituted sexual assault and imposed three and a half years’ imprisonment, concurrent with the sentences for the theft counts.

• Court of Appeal (Criminal Division) — allowed the appeal, quashed the attempted rape conviction, substituted sexual assault and imposed a sentence of three and a half years’ imprisonment: [2012] EWCA Crim 2211.
• First-instance court — convicted the defendant of attempted rape; the court and citation are not stated in the judgment.