Acquittal for Rape – Young Man of Good Character

The Allegation

Our client was charged with rape in a “too drunk to consent” case before Chester Crown Court. The offence was said to have taken place after a night out for university societies. It was also alleged that our client gave the complainant chlamydia.

Our client’s case was that the sexual activity was consensual, but kept secret between the two of them because he was a friend of the complainant’s ex-boyfriend, with whom she was still sharing accommodation. He maintained that he had never suffered from, nor transmitted, chlamydia.

It was noted from the outset that some of the Crown’s own evidence supported his defence. A “pinky promise” between the complainant and defendant—i.e., to keep a secret—was visible on CCTV footage from the nightclub, before their first kiss. The prosecution suggested this was not visible.

We took our client through the evidence and obtained his instructions. We highlighted the lack of proper enquiries into telephone evidence in this case. This material was directly relevant: firstly, it would support our client’s instructions regarding his closeness with the complainant as a friend prior to the evening in question; secondly, it could refute the alleged conversation that took place between the defendant and the complainant’s friend, when she was said to be too drunk to type a message. This conversation was placed into evidence not by way of telephone download material, but by way of a “transcript” produced by the friend on the notes application of her phone, despite facilities being available to obtain a download.

Finally, the telephone evidence would support that exchanges took place after the alleged rape, in which the complainant asked the defendant not to tell anyone they had slept together.

Expert Instruction

We instructed multiple experts in preparation for this case.

Firstly, we instructed an expert to obtain and consider our client’s telephone download. The prosecution fiercely resisted providing us with this data from the outset of the case, even after it was requested in writing. This was particularly frustrating in light of their own failure to consider telephone download material.

We requested that all phones involved in the case (those of the defendant, complainant, and key witness) be downloaded to support both prosecution and defence claims. However, only very limited access to our client’s phone was provided after several months of chasing. Our expert was able to find messages between the complainant and our client which were entirely consistent with our client’s instructions. The complainant implored our client not to tell anyone, and he promised he would not. He also asked if anything was wrong after he had been blocked on another social media platform; the complainant simply said she wanted space, which our client accepted.

The police then served a statement saying that they had improperly downloaded the defendant’s phone, which is why the messages had not been served previously. The complainant provided a further statement saying she had forgotten about the messages but now recalled and accepted them.

Using data from the phone, we instructed a cardiologist to consider Apple Watch data and assist us with proving a timeline for the evening, including when sexual intercourse would have taken place.

We also instructed a medical expert in response to the Crown’s evidence that the complainant had injuries consistent with her account of rape and inconsistent with the defendant’s account of consensual sex. Our expert rebutted this assertion. A set of agreed facts were confirmed for trial, which explained to the jury that the injuries could have been caused through consensual sex as well.

Our expert also considered the defendant’s medical and sexual health records. He found no evidence that our client had ever been diagnosed with or treated for chlamydia, and noted several occasions on which he had tested negative for STIs.

Finally, we looked closely at the Crown’s own toxicology expert. The complainant reported her allegation too late for accurate blood alcohol testing, but the expert had gone through her report of what she had drunk that evening. According to the expert, the complainant drank more than three times the amount that would have resulted in coma or death. As such, she could not have been telling the truth. We were therefore in the unusual position of having an expert for the prosecution give evidence for the defence.

We provided the expert with CCTV footage from the nightclub attended by both complainant and defendant that evening, which also allowed him to observe the complainant’s relative sobriety and lack of drinks visibly consumed during those hours. The expert was also able to address whether the complainant’s medication could have affected her capacity to consent; in short, she concluded it would not. Legal rulings prevented some, but not all of this expert evidence being provided to the Court.

Trial

As a man of good character, we were able to obtain and present character references for our client. We undertook the usual work of noting any inconsistencies in witness accounts in preparation for trial and prepared a defence jury bundle with all evidence gathered.

Counsel Jonathan Duffy of 7 Harrington Street was instructed at trial. His expert cross-examination produced a revelation: shortly after the alleged rape, the complainant had performed oral sex on another of the Crown’s live witnesses—the complainant’s ex-boyfriend. This was especially shocking given that the an centred on lack of capacity to consent.

In light of this revelation, we made a submission of no case to answer at half time. Unfortunately, the judge ruled against us. The defence case was presented, with our client giving strong evidence on his own behalf, bolstered by telephone material, character evidence, and expert reports we had acquired.

On day 8 of trial, our client was acquitted and defence costs were ordered. Our client was overwhelmed with relief and gratitude. He stated:

“Hi Phoebe, thank you so much for all the work you put into this, it means so much to have been heard and have the right people behind me, thank you once more.”

Phoebe Coleman was the solicitor with conduct of this case, assisted by Mark Davies. Jonathan Duffy of 7 Harrington Street Chambers was instructed as counsel.