Marchant, R v, Court of Appeal - Criminal Division, November 23, 2018, [2018] EWCA Crim 2606

Resolution Date:November 23, 2018
Issuing Organization:Criminal Division
Actores:Marchant, R v

Neutral Citation Number: [2018] EWCA Crim 2606

Case No: 201800737 C2





Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 23/11/2018






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Mr David Maunder for the Appellant

Ms Rachel Drake (instructed by the Crown Prosecution Service) for the Respondent

Hearing date: 20 November 2018

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Lord Justice Leggatt:

  1. On 22 January 2018, following a trial in the Crown Court at Bristol before HHJ Horton and a jury, the appellant was convicted of an offence of rape. He was acquitted on the direction of the judge on two associated counts of assault by penetration. He appeals against his conviction with leave of the single judge on the grounds that he did not receive a fair trial because the judge allegedly intervened improperly during the appellant's examination-in-chief and summed up the case to the jury in a way that was fundamentally unbalanced.

  2. Reporting restrictions apply in this case and nothing must be published which would be likely to lead members of the public to identify the victim of the offence.


  3. At the time of the alleged offence, the complainant was 23 years old and the appellant was aged 36. They had been friends for some time. On the previous day, Saturday 5 August 2017, they had a long text message conversation during which the appellant expressed feelings for the complainant that he had not expressed before. The complainant responded kindly but made it clear that she loved her boyfriend and did not want a relationship with the appellant. He did not push the issue but asked if they could meet socially, as friends, later that evening. The complainant agreed to do so.

  4. They met at the home address of a mutual friend known as ``Alan'' Morgan in Weston Super Mare. The appellant had been there from about 2pm in the afternoon, drinking alcohol and taking cocaine with Alan Morgan. The complainant joined them in the evening after having dinner at a local restaurant with her family. There were two or three others present. Some time after midnight the complainant went out to a nightclub with a female friend, but they returned to the flat in the early hours to continue socialising with the appellant and others. Everyone present, including the complainant and the appellant, was drinking alcohol and taking cocaine.

  5. At what may have been around 4.30am the complainant fell asleep on the sofa. At some time around 8.30 or so in the morning, Alan Morgan and another man (Chris Fawcett) went out to buy some more cocaine. Apart from the appellant and the complainant, the others who had been present had by this time left. The complainant's evidence, given in a video recorded interview on the afternoon of 6 August, was that she was disturbed in her sleep by the appellant picking her up and carrying her downstairs to the bedroom. She believed he was being friendly by taking her to bed and went back to sleep in his arms. The complainant said that the next time she woke she found the appellant on top of her with his penis inside her vagina. She pulled away from him but he continued to try to touch her intimately whilst she moved away from him in a state of semi-consciousness. The complainant said that the appellant stopped when his phone rang and he went upstairs. When he came back, he tried to touch her again but she became more physical with him and told him ``no''. The appellant then got dressed in a hurry and left the premises.

  6. As soon as he had left, the complainant grabbed her clothes and ran to the flat above, which was occupied by Alan Morgan's mother, Jean Morgan. Both Jean and Alan Morgan were called as witnesses by the prosecution at the trial. The complainant gave Jean Morgan an account of what had happened. Jean Morgan contacted her son, who in turn telephoned the appellant. The appellant told him that he had had (consensual) sex with the complainant. When Alan Morgan returned home, the complainant told him what she said had happened and described feeling ``ripped and torn'' in the vaginal area. The complainant was taken to hospital and the hospital contacted the police. A medical examination was carried out which found no tearing but vaginal and abdominal tenderness and some bruising to the inner thighs and lower legs.

  7. The appellant gave a prepared statement and was later interviewed by the police. At the trial he also gave evidence in his defence. He denied raping the complainant and said that she had consented to the sexual activity that occurred between them. He said in evidence that after Alan Morgan and Chris Fawcett had left the flat to go and buy drugs, he spoke to the complainant and asked her if she wanted a cuddle. She said yes and they started kissing. After about two minutes they moved downstairs and carried on kissing and touching each other over their clothes. They then undressed and tried to get aroused but he could not get a proper erection as a result of the drink and cocaine he had consumed. He penetrated her for less than a minute then became limp and had to withdraw. He was embarrassed. He said in evidence that before penetration he asked her ``Are you all right with this?'' and she had indicated that she was. She was happy to take part and was awake and participating throughout.

  8. There was therefore no dispute at trial that the appellant intentionally penetrated the complainant's vagina with his penis. The critical issue for the jury was whether the complainant had consented to the penetration.

    The grounds of appeal

  9. As already mentioned, the grounds of appeal relate to two aspects of the judge's conduct of the trial: interventions during the appellant's examination-in-chief and his summing-up to the jury. As to the first, Mr Maunder, who represents the appellant on this appeal as he did at the trial, submits that during the appellant's examination-in-chief the judge entered unduly into the arena and intervened in the conduct of the case in a manner which was more akin to the role of prosecution counsel. In addition, a specific complaint is made about a warning given to the appellant by the judge (in the absence of the jury) that there could be serious consequences for him if, for example, he were to give evidence attacking the complainant's character or which was inconsistent with his defence statement. It is alleged that the judge thereby created an intimidating and inhibiting atmosphere in which the appellant was prevented from telling his story freely. It is also alleged that the judge then questioned the appellant about an incident which had been ruled inadmissible in evidence, causing confusion and creating an unfair impression for the jury that the appellant was being evasive.

  10. As for the summing up, Mr Maunder submitted that this was fundamentally unbalanced and that the judge developed and enhanced the arguments of the prosecution, drawing attention to evidence in their favour, some of which had not been relied on by the Crown, while at the same time omitting, explaining away and deflecting attention from evidence in favour of the defence and the appellant's strongest arguments.

  11. It is the appellant's case that the combined effect of the judge's interventions and unbalanced summing up may have been to influence the jury unduly in favour of the Crown and render a fair consideration of the evidence impossible.

  12. On behalf of the Crown, Ms Drake accepts that some of the judge's interventions may have been unfortunate but submits that they did not make the conviction unsafe. She submits that all the interventions were designed to clarify ambiguities or to ensure the judge had a proper note of the evidence and that it cannot be said that the appellant was unable to put forward his case or that his counsel was prevented from...

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