R v Kelsey Jones

Attempted rape requires proof of acts more than merely preparatory and an intention to penetrate vaginally with the penis. That intention may be inferred from the totality of the evidence. Realistic alternatives involving a lesser sexual offence must be capable of rejection. A complaint direction should explain that a complaint is not independent evidence of truth, but its omission does not automatically make a conviction unsafe. Significant planning is fact-sensitive, and hiding in wait to trap a lone woman may satisfy the requirement. A sentence for attempted rape must be adjusted to reflect that the completed offence was not committed.

Following a trial at the Crown Court at Mold, the appellant was convicted of attempted rape, false imprisonment and assault occasioning actual bodily harm. He received ten years’ imprisonment for attempted rape, with concurrent sentences for the other offences. He appealed against conviction on the grounds that the evidence did not establish an intention to rape and that the jury had not been directed on the evidential value of the complaint. He also challenged the categorisation and sentence, particularly the findings on planning and the adjustment for an attempted rather than completed offence.

Convictions. The appeal against conviction was dismissed. The convictions were safe.

1. Attempted rape. The offence requires proof of acts more than merely preparatory and an intention to rape, meaning an intention to penetrate the complainant’s vagina with the appellant’s penis. The relevant question was whether the evidence, viewed as a whole, enabled a properly directed jury to infer that intention and reject realistic alternatives involving a lesser sexual offence. The court applied the principles in R v G & F [2012] EWCA Crim 1756. R v Beaney [2010] EWCA Crim 2551, R v Ferriter [2012] EWCA Crim 2211 and R v Bryan [2015] EWCA Crim 548 were fact-specific illustrations rather than sources of new legal principles. Concealment, waiting in the women’s toilets, rejection of the offer of money, the force used, restraint, covering the complainant’s head and lifting her dress were cumulatively sufficient to establish the requisite intention.
2. Complaint evidence. A jury should ordinarily be reminded that a reported complaint cannot independently support the truth of the complainant’s account. The absence of such a direction does not automatically make a conviction unsafe. Its effect depends on the importance and nature of the complaint and the evidence as a whole. Here, the injuries and surrounding observations provided some independent evidence, the source of the complaint was obvious, the incident occurred in a locked cubicle, and the central issue was credibility. In the context of the clear and consistent evidence, the omission did not render the convictions unsafe.
3. Sentence. Significant planning is fact-sensitive and requires judgment. Limited duration or sophistication is not necessarily decisive; in a predatory sexual offence, hiding in wait in a location designed to trap a lone woman may amount to significant planning. The findings of culpability A and category 2A, together with the psychological harm, vulnerability, humiliation, confinement, violence and totality of the offending, were open to the sentencing judge. However, the ten-year starting point related to completed rape and required a sufficient reduction for the attempt. The sentence was therefore quashed and nine years’ imprisonment substituted.

• Court of Appeal (Criminal Division) ([2022] EWCA Crim 1066): dismissed the appeal against conviction and allowed the appeal against sentence to the limited extent of substituting nine years’ imprisonment for ten.
• Crown Court at Mold: following trial, convicted the appellant of attempted rape, false imprisonment and assault occasioning actual bodily harm, and imposed the sentences described above.