R v Frederick Lake

In a rape trial, evidence of a complainant’s prior complaint must be explained as evidence originating from the complainant, not as independent support for the allegation. The jury should be directed to identified material consistencies or inconsistencies. Where a complainant’s distress is prominent, the jury must be told that genuine distress does not necessarily establish guilt and may have an innocent explanation. An adverse-inference direction under Criminal Justice Act and Public Order 1994 must contain the required safeguards. A judge must avoid questioning that conveys disbelief in the defendant’s account. The safety of a conviction depends on the cumulative effect of any errors and the evidence as a whole.

The appellant was convicted of rape at the Crown Court at Lewes on 3 September 2021 and sentenced to seven years’ imprisonment. Sexual intercourse was admitted. The central issue was whether the complainant was asleep, as she alleged, or awake and consenting, or appearing to consent, as the appellant maintained.

After new legal advice, the appellant sought an extension of time and leave to appeal. He challenged the directions concerning complaint evidence, the complainant’s distress, and an adverse inference, and contended that the trial judge’s questioning of him descended into the arena. The court considered whether, separately and cumulatively, those matters rendered the conviction unsafe.

1. Appeal allowed. The court extended time, granted leave, quashed the conviction and ordered a retrial. The cumulative effect of the errors made the conviction unsafe.
2. The direction on complaint evidence was inadequate. The jury needed to understand clearly that statements made by the complainant to others were not independent evidence of what had happened. They also needed to be directed to the principal inconsistencies between her accounts so that they could assess her reliability. The court applied the guidance reflected in R v Pritchard [2011] EWCA Crim 2749.
3. The trial judge should have directed the jury on the limited evidential significance of the complainant’s distress. Her distress could be genuine without supporting the appellant’s guilt. The jury should have considered whether it could be explained by remorse, anger with herself, alcohol, or a failure to appreciate the signals she had given. If they rejected such possibilities, they could treat the distress as some support, but should not give it undue weight.
4. The adverse-inference direction under section 34 of the Criminal Justice Act and Public Order 1994 was materially defective. The appellant’s consistent case was that the complainant was awake during sexual activity. The direction should have stated that the jury could not convict wholly or mainly on an adverse inference and should have assessed the strength of the prosecution case as it appeared when he was interviewed. The preferable course was to invite the jury to consider whether any inconsistency affected the reliability of his evidence.
5. The Recorder’s questioning of the appellant was inappropriate. Its structure and final formulation were apt to convey that the judge did not believe the appellant’s account, and the standard later direction did not sufficiently cure that impression. The court also noted that alcohol may affect sexual behaviour.
6. Although no individual error would necessarily have made the conviction unsafe, this was not an overwhelmingly strong case. There were powerful evidential points on each side. A properly directed jury could have convicted, but the court could not be satisfied that this conviction was safe.

In a postscript, the court stated that a party who gives a good and sufficient reason and pays any prescribed fee should be given access to a recording of a public hearing under the Criminal Procedure Rules.

• Court of Appeal (Criminal Division): By [2023] EWCA Crim 710, the court allowed the appeal, quashed the conviction and ordered a retrial.
• Crown Court at Lewes: The appellant was convicted of rape on 3 September 2021 following a jury trial before Mr Recorder Trimmer QC, and was sentenced to seven years’ imprisonment.