A conviction for rape was overturned where the judge's summing-up had failed to provide the jury, which was faced with a somewhat complex evidential situation, with sufficient guidance as to the evidence capable of supporting the prosecution or the defence on the issues that arose. Suspicion that the jury may not properly have understood or performed their duty was reinforced by the verdicts they had returned in relation to the defendant's co-accused.Appeals by the defendants ('M' and 'I') respectively against conviction and sentence. In August 2000 M and I took three girls, each under the age of 16, to a hotel room, where they were alleged to have forced the girls to drink alcohol (vodka) and to take drugs (valium) before M had sexual intercourse with two of them ('AB' and 'JK'). M was charged with the rape of both girls. I was also charged with rape in relation to the two girls, on the basis that he was jointly responsible in law by reason of his part in the events that had led to the alleged rapes by M. At trial AB claimed that she had no recollection of the events at the hotel, but alleged that she would never have consented to intercourse with M but for the drink and/or drugs that she had allegedly been given. Samples provided by AB showed that she had consumed a considerable amount of alcohol and that valium, in a low concentration, was also present in her bloodstream. The case for M and I, supported at trial by the third girl ('NP'), notwithstanding a previous inconsistent witness statement, was that both AB and JK had been willing sexual partners. On 27 June 2001 at Worcester Crown Court before HH Judge Mott and a jury, M was convicted of: (i) the rape of AB; (ii) indecent assault in relation to JK: and (iii) three offences of supplying a Class C controlled drug. His total sentence was ten years' imprisonment. I was convicted of: (a) the indecent assault of AB and JK; (b) supplying a Class C controlled substance. His total sentence was two years' in a young offender institution. On 12 December 2002 the defendants' convictions for indecent assault were quashed following R v Kay (2002) 1 AC 269.The defendants' appeals were on the grounds that: (i) the jury had been misled as to AB's character and credibility; and (ii) there had been general unfairness in the judge's summing-up.HELD: (1) The case against M was that AB had been so affected by drink or drugs that she had not been capable of giving her true consent. She also claimed not to remember events at the hotel. (2) The evidence that had emerged at trial was capable of supporting either the prosecution or the defence, depending upon the view that the jury took as to the credibility of particular witnesses. In that circumstance, it was incumbent upon the judge to give a summing-up on the charge of rape against M that assisted the jury with the issues on that charge and the evidence in relation to them. R v Lawrence (1982) AC 510 considered. (3) The summing-up, although generally fair, had been defective in the absence of identification of and guidance upon the issues which had arisen in the AB rape count and the evidence in relation to them. Merely to have set out the evidence had not been enough. Guidance had been required in this somewhat complex situation, as to the evidence capable of supporting the prosecution and the defence on each of the issues. (4) There was a real risk, that in the absence of such guidance and analysis a jury had not approached the issues correctly. There was a real risk, for example, that the jury had jumped direct from the claimed loss of memory to find absence of consent, without considering all the evidence on that issue. (5) Although I's conviction for the lesser offence of indecent assault in relation to AB was not necessarily inconsistent with M's conviction for rape, that verdict was "somewhat surprising" considering that the prosecution had presented the case as a joint enterprise. This anomaly, although not of itself sufficient to render M's conviction unsafe, affirmed the court's sense of unease that the jury may not properly have understood or performed their duty.M's appeal against conviction for rape allowed; conviction quashed. Defendants' appeals against convictions on drug-related counts dismissed.

[2003] EWCA Crim 135