R v ALD

When determining a submission of no case to answer, a judge must assess the prosecution evidence as a whole and must not rely on a wholly self-serving statement by the defendant. A judge must not treat personal experience or expectations about how a rape complainant would behave as a reliable basis for finding evidence inherently implausible. Apparent weaknesses, unusual features and inconsistencies in the evidence ordinarily remain matters for the jury where the complainant maintains the allegation and there is other evidence capable of supporting it. A terminating ruling infected by those errors may be reversed under section 67 of the Criminal Justice Act 2003.

The respondent was tried on an allegation of rape. Consent was in issue. The complainant gave a consistent account of the sexual assault in her Achieving Best Evidence interview and under cross-examination. There was also evidence of messages seeking help, recent complaints, and her distressed and dishevelled appearance when collected by friends.

After questioning the complainant, the trial judge asked the prosecution to reconsider continuing the case. The judge then upheld a submission of no case to answer and made a terminating ruling. The prosecution sought leave to appeal, contending that the ruling relied on the respondent’s self-serving statement and failed to assess the prosecution evidence as a whole.

The central issue was whether the terminating ruling involved an error of law or principle, or was not one that it was reasonable for the judge to make.

Appeal allowed. The court granted leave, reversed the terminating ruling and directed a fresh trial before a different judge.

1. The judge’s questioning of the complainant went beyond necessary clarification. It amounted to cross-examination and disclosed the judge’s view that the complaint was false. Her subsequent discussion of the no-case submission showed a less than open mind.
2. A judge considering whether there is a case to answer cannot take account of a wholly self-serving statement made by the defendant. The judge had treated the respondent’s denial as a full and frank account, and had implicitly relied on it when ruling that there was no case to answer. That was an error of law, applying Pearce (1979) 69 Cr. App. R 365.
3. The judge also improperly used her own experience and expectations of rape complainants to regard the complainant’s telephone call and photograph as inherently outside the norm. Those expectations were not a reliable measure of whether the evidence was out of all reason. They risked reliance on rape myths. The judge further failed to analyse material evidence capable of supporting the allegation, including the complainant’s account, distress messages, recent complaints, and evidence of her condition after the incident.
4. There were evident difficulties in the prosecution case, including the messages to the complainant’s former boyfriend. But those matters, and the unusual features of the evidence, were for the jury to assess with the whole evidential picture. The judge had reached views on credibility and reliability through extraneous and irrelevant considerations rather than through a proper assessment of the evidence.
5. The ruling therefore involved an error of law or principle and/or was not a ruling that it was reasonable to make within section 67(b) and (c) of the Criminal Justice Act 2003. A fresh trial was directed before a different judge in a Crown Court designated by the Senior Presiding Judge of the South Eastern Circuit.

• Court of Appeal (Criminal Division): In [2023] EWCA Crim 967, the prosecution’s appeal against the terminating ruling was allowed. The ruling was reversed and a fresh trial before a different judge was ordered.
• First-instance trial: The respondent was tried on a rape allegation in June 2023. The trial judge upheld a submission of no case to answer and made a terminating ruling.