Bryan, R v [2015] EWCA Crim 433
[12]We sympathise with the judge in leaving the entire case to the jury because it is not at all clear to us that the submission which we have just articulated was ever clearly made to the judge. But the answer of Mr Connor for the Crown to the simply expressed but penetrating question of my Lord, Popplewell J, is revealing. Was there, my Lord asked, any evidence or activity which was capable of justifying the conclusion which pointed to an intent to commit rape rather than, for example, an intent to molest her sexually under her clothes in some other way? Mr Connor's frank answer was that there was not, and he is right. In those circumstances we are, we think, driven to the conclusion that the conviction for attempted rape is unsafe." Counsel relies heavily on those submissions and submits they apply equally to the evidence here. His Honour Judge Saggerson distinguished Ferriter on the grounds that factually it was a very different case. He concluded that whilst there was no single feature of the evidence which taken in isolation signified or signalled the relevant intent, taking the evidence in the round and looking at the totality of the facts, there was evidence from which a jury could be sure there was an intention to rape. Indeed, he concluded that there was "an abundance of evidence", capable of sustaining that conclusion. He said that the volume and scale of the evidence was much greater in this case than in Ferriter. We have to ask ourselves whether this judge, properly directing himself in accordance with the Galbraith principles, could properly conclude the case should go to the jury. In our judgment, he was fully entitled to reach that conclusion. Whether or not the evidence could be described as "abundant" is perhaps debatable, but certainly we think there was sufficient evidence to warrant this case being considered by the jury. Like the judge, we think Ferriter is a very different case. The facts were much more equivocal of the intention of the drunken defendant there. Here we have the lead up to the incident which seems to us potentially important, as well as the ripping of tights, the grabbing of the thigh, the lying on top of the complainant and attempting to stop her from shouting. We should add that we respectfully wonder how helpful the approach suggested in Ferriter is. Evidence of an intent to rape will necessarily constitute evidence of some lesser sexual offence. The relevant question is not whether there is any particularly piece of evidence which is consistent with the more serious offence of rape but not with a lesser sexual offence. The evidence will often be consistent with both offences. The only question for the judge in the Galbraith submission is whether the evidence taken at its highest is capable of sustaining a conviction for the offence charged. In answering that essentially straightforward question we think it is an unnecessary, unhelpful and a potentially confusing distraction to focus on distinctions which may be drawn between the evidence necessary to sustain an intent to rape and the evidence necessary to sustain some lesser sexual offence. For these reasons we would dismiss the appeal, notwithstanding the attractive and cogent submissions of counsel Mr Weetch.