The BBC covered an unusual story on 12 February 215 involving a prosecution appeal against a terminating ruling given by a judge in a rape case.
Michael Armitage, Pawel Chudzicki and Rafal Segiet were on trial accused of rape. HH Judge John Pini QC found that there was insufficient evidence to allow the case to continue and be considered by the jury. This most frequently occurs when the defence make what is known as a “half time submission” or a “submission of no case to answer” which involves the defence submitting to the judge at the end of the prosecution case that there is no evidence upon which, if the evidence adduced were accepted, a reasonable jury, properly directed, could convict.
In this case, the issue was whether or not there was sufficient evidence to prove beyond reasonable doubt that the complainant did not have the capacity to consent. The judge determined that there was not and accordingly the case could not be considered by the jury.
The victim had drunk more than 12 shots of vodka and reportedly had little memory of what happened. Under cross-examination, the BBC reported that she said: “It could all have happened consensually and I don’t remember it.”
The defence made submissions to the judge, requesting that the trial be stopped. The judge, responding to the submission said “I’ve found this case extremely interesting and extremely difficult…In my judgement there is insufficient evidence from which the jury could determine lack of capacity and I will withdraw the case from the jury…There is no evidence from which the jury could say she lacked capacity as opposed to simply having no recollection of events which may have been consented to.”
There are very few powers for the prosecution to appeal in the criminal law in England and Wales – the most notable probably being the power to appeal against and unduly lenient sentence, known as an Attorney General’s reference. The general view is that the prosecution shouldn’t get a second bite of the cherry and for that reason, the prosecution cannot appeal against an acquittal. However in limited circumstances, the prosecution are granted the power to appeal, and in this context, the exercise of that power is rare.
The prosecution appealed against the judge’s decision – known as a terminating ruling (because it terminates the trial) – under CJA 2003 s.58.
The matter was then heard by the Court of Appeal who found that there was sufficient evidence for the case to proceed and reversed the ruling. We are currently unable to find the appeal judgment which would tell us the details and reasons why the judge came to his decision and the reasons the Court of Appeal came to the opposite conclusion. We’ll keep any eye out for it and return to this if and when we come across it.
Based on news reports, we know that the court criticised the trial judge’s failure to make any reference to video clips of Armitage having sex with the woman:
“It appears to us that [the victim] is depicted throughout as being sufficiently inert and unresponsive as to leave it open to a properly directed jury to be sure that she was not consenting and that she did not have the freedom and capacity to do so…Such a conclusion is entirely a matter for the jury… issues of consent and capacity to consent should normally be left to a jury to determine…We consider that this was a serious and significant omission and that when the evidence available in Armitage’s case is considered, there was indeed a case to go to the jury.”
The court allowed the prosecution’s appeal and reversed the judge’s ruling.
The trial continued…
The trial resumed on Tuesday 10 February 2015 and the jury convicted all three men of rape. Segiet was convicted of two other unspecified sexual offences and Chudzicki one other unspecified sexual offence
They will be sentenced on Friday 13 February 2015.