Bryan, R v

On a half-time submission in an attempted-rape case, the question is whether the prosecution evidence, taken at its highest, is capable of sustaining a conviction for the offence charged. The court should assess the evidence as a whole.

It is unnecessary and potentially confusing to seek evidence that is consistent with an intention to rape but not with a lesser sexual offence. Evidence capable of supporting an intention to rape will commonly also support a lesser sexual offence. The jury may infer the requisite intent from the totality of the conduct and surrounding circumstances.

The appellant was convicted in the Crown Court at Woolwich of attempted rape, assault occasioning actual bodily harm and outraging public decency. He received an extended sentence of 15 years. By leave of the single judge, he appealed only against the attempted-rape conviction.

The complainant said that, after the appellant had gained her trust when she was stranded after a night-bus journey, he led her into a secluded part of a park, knocked her down, lay on top of her, covered her mouth and nose, held her thigh and tore her tights. The issue was whether the evidence was sufficient to leave attempted rape to the jury.

1. Appeal dismissed. The trial judge was entitled to reject the half-time submission and leave attempted rape to the jury.

2. Attempted rape requires proof of an intention to rape. Applying the Galbraith principles, the sole question at the half-time stage was whether the prosecution evidence, taken at its highest, was capable of sustaining a conviction for the offence charged.

3. The court distinguished R v Ferriter, [2012] EWCA Crim 2211. The evidence in that case was more equivocal of the drunken defendant’s intention. In this case, the preceding conduct, the isolated location, the complainant’s account of being forced to the ground and restrained, the grabbing of her thigh, and the tearing of her tights provided sufficient evidence from which a jury could infer an intention to rape.

4. The court disapproved the suggested comparative approach in R v Ferriter. A judge need not identify evidence that is consistent with rape but inconsistent with a lesser sexual offence. Evidence of an intention to rape will ordinarily also be evidence of a lesser sexual offence. The proper inquiry is the straightforward sufficiency question under the Galbraith principles, assessed on the evidence in its totality.

• Court of Appeal (Criminal Division): dismissed the appeal against the attempted-rape conviction: [2015] EWCA Crim 433.
• Crown Court at Woolwich: the appellant was convicted before His Honour Judge Saggerson of attempted rape, assault occasioning actual bodily harm and outraging public decency.