Hepburn v R.

Evidence closely connected with an alleged sexual offence may be admitted as important explanatory evidence or as relevant to an important issue, including a defendant’s asserted belief in consent. Its prejudicial effect must be considered, and the jury must be directed to use it only for its proper evidential purpose.

An apparent inconsistency in verdicts does not make a conviction unsafe where the verdicts can rationally reflect different findings about consent or belief at separate stages of the sexual activity. A jury note will not ordinarily disclose the reasoning of every juror or establish a logical inconsistency.

The appellant was tried for oral and vaginal rape arising from one incident after a night of drinking. He was convicted of oral rape and acquitted of vaginal rape at a retrial in the Crown Court at Worcester. The earlier jury had failed to agree. He was sentenced to five years’ imprisonment.

By leave of the single judge, he appealed against conviction. He challenged the admission and use of WhatsApp messages concerning a sexual-conquest game, and contended that the differing verdicts were logically inconsistent. The central questions were whether the messages rendered the conviction unsafe and whether the jury’s verdicts could stand together.

Appeal dismissed. The conviction for oral rape was not unsafe.

1. The judge made no error in admitting the 17 WhatsApp extracts from 27 March 2017 onwards. The court doubted that they fell within section 98(a) of the Criminal Justice Act 2003. However, they were plainly admissible under sections 101(1)(c) and 102 as important explanatory evidence, and under section 101(1)(d) as relevant to the appellant’s asserted belief in consent.

2. The judge had sufficiently addressed prejudice. The issue had informed the argument and his exclusion of the earlier messages. There was no material failure to address section 78 of the Police and Criminal Evidence Act 1984 or the safeguards governing bad-character evidence. His direction correctly told the jury that the appellant was not on trial for sexism and that the messages could be used only if they assisted on the issue of consent. Although one line of cross-examination about promiscuity was irrelevant, it did not undermine the safety of the conviction.

3. The jury’s verdicts were not logically irreconcilable. The jury could have been sure that there was no consent to oral penetration because the complainant was asleep or mistaken about the appellant’s identity. It could nevertheless have reached a different conclusion about the appellant’s belief in consent by the time vaginal intercourse began. The jury note did not reveal a common or fixed basis of reasoning, and it was unsafe to overanalyse it.

4. Neither ground established that the conviction was unsafe. The appeal was therefore dismissed.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction in [2020] EWCA Crim 820.
• Crown Court at Worcester — at a retrial, convicted the appellant of oral rape on 12 April 2019 and acquitted him of vaginal rape; he was sentenced to five years’ imprisonment on 30 April 2019.
• Earlier Crown Court trial — the jury failed to agree.