R v Alan Clarke

The provisions of the Sexual Offences (Amendment) Act 1992 apply to this case. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of the offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act .

On 1 October 2024, in the Crown Court at Woolwich, the applicant pleaded guilty to sexual assault and breach of a Sexual Harm Prevention Order, which had been charged under counts 2 and 4 of a four count indictment.

On 3 March 2025, at the same court, he pleaded guilty on re-arraignment to one count of assault by penetration, which had been charged under count 3. However, he maintained his plea of not guilty to count 1, which alleged attempted rape. But on 11 March 2025, following a trial, he was convicted by a majority of the jury (10:2).

On 30 April 2025, the applicant was sentenced to an extended determinate sentence of 13 years, comprising a custodial term of ten years and an extended licence period of three years. The matters to which he had earlier pleaded guilty under counts 2 and 3 attracted concurrent terms of imprisonment of two years and five years respectively. No separate penalty was imposed under count 4.

The applicant's application for leave to appeal against conviction under count 1 has been referred to the full court by the Registrar with a view to a rolled up hearing in the event that leave to appeal were granted.

In short, the trial judge had acceded to a defence submission, following the conclusion of the prosecution case, that there was no case to answer on the count of attempted rape and ruled accordingly. But later that day he changed his mind and gave a ruling that there was after all a case for the applicant to answer. The question arises as to whether this sequence of events vitiated the later guilty verdict reached by the jury.

The facts are these. On the afternoon of 10 December 2023, as she was walking through an alleyway on her way home, the 17 year old complainant was confronted by the applicant who was a complete stranger to her. He told her not to scream, grabbed her in a bear hug and dragged her forcibly into a wood. There he put her up against a tree. She cried for help, but he proceeded to put one hand under her top and touch her breast and nipple (count 2). With his other hand he moved her underwear to one side under her skirt and put his finger or fingers partly into her vagina (count 3).

"He slapped me on the face. I'd hit my head on the tree, and it was after that when I started screaming that he slapped my face. He didn't use much force, but he said, 'Shut up'. I was screaming bloody murder. I was screaming 'Help me'. He covered my mouth with his hand. He was using a lot of force; I was constantly struggling. I nipped at his hand, and he jumped back a bit. I took it as an opportunity to kick behind me. I guess I kicked his balls. He fell back a bit, and I rolled away a bit. I got up and I tried to walk away. He got up immediately. In fact, he got up before I did. He walked away. He had his pants down. I guess he was trying to pull them up. I only noticed this as I looked back to see if he was following me or not. I saw the tip of, what [the complainant] called, 'his little peepee'. He was wearing sweatpants or jogging bottoms. I started walking towards my house. He was standing there. He did not say or do anything.

The applicant's DNA was later found on the complainant's clothing.

The applicant was arrested on 1 September 2024. In interview he answered "No comment" to all questions.

He did not give evidence at his trial. His case had been put on the basis that the complainant's evidence was unreliable; that he never took his trousers down; that his penis was not visible; and that he had had no intention to rape her.

"In this case, a submission is made that no reasonable jury properly directed could find that the Crown's evidence is sufficient to enable them to be sure that count 1, attempted rape, is made out.

The judge then invited the prosecution to state whether they intended to appeal his terminatory ruling.

" General right of appeal in respect of rulings

This section applies where a judge makes a ruling in relation to a trial on indictment at an applicable time and the ruling relates to one or more offences included in the indictment.

The prosecution may appeal in respect of the ruling in accordance with this section.

The ruling is to have no effect whilst the prosecution is able to take any steps under subsection (4).

informs the court that it intends to appeal, or

requests an adjournment to consider whether to appeal, and

if such an adjournment is granted, it informs the court following the adjournment that it intends to appeal.

If the prosecution requests an adjournment under subsection (4)(a)(ii), the judge may grant such an adjournment.

any one or more of those offences may be the subject of the appeal, and

if the prosecution informs the court in accordance with subsection (4) that it intends to appeal, it must at the same time inform the court of the offence or offences which are the subject of the appeal.

the ruling is a ruling that there is no case to answer, and

the prosecution, at the same time that it informs the court in accordance with subsection (4) that it intends to appeal, nominates one or more other rulings which have been made by a judge in relation to the trial on indictment at an applicable time and which relate to the offence or offences which are the subject of the appeal,

The prosecution may not inform the court in accordance with subsection (4) that it intends to appeal, unless, at or before that time, it informs the court that it agrees that, in respect of the offence or each offence which is the subject of the appeal, the defendant in relation to that offence should be acquitted of that offence if either of the conditions mentioned in subsection (9) is fulfilled.

that leave to appeal to the Court of Appeal is not obtained, and

that the appeal is abandoned before it is determined by the Court of Appeal.

If the prosecution informs the court in accordance with subsection (4) that it intends to appeal, the ruling mentioned in subsection (1) is to continue to have no effect in relation to the offence or offences which are the subject of the appeal whilst the appeal is pursued.

any consequences of the ruling are also to have no effect,

the judge may not take any steps in consequence of the ruling, and

if he does so, any such steps are also to have no effect.

Where the prosecution has informed the court of its agreement under subsection (8) and either of the conditions mentioned in subsection (9) is fulfilled, the judge or the Court of Appeal must order that the defendant in relation to the offence or each offence concerned be acquitted of that offence.

In this section 'applicable time', in relation to a trial on indictment, means any time (whether before or after the commencement of the trial) before the time when the judge starts his summing-up to the jury.

The reference in subsection (13) to the time when the judge starts his summing-up to the jury includes the time when the judge would start his summing-up to the jury but for the making of an order under Part 7."

It is uncontroversial that before the judge purported to reverse his earlier decision, that this procedure had been followed. Prosecution counsel duly asked for time to take instructions from the Crown Prosecution Service. The judge granted the application and adjourned the trial to midday on the following day. The jury were told that there was a matter of law that needed to be dealt with and they were sent home for the day.

"I have concluded that I came to my decision too hastily and it was wrong of me to rule that there was no case to answer on attempted rape.

"[The applicant] is being tried on a single count of attempted rape. He has pleaded guilty to offences of sexual assault, assault by penetration, and a breach of a sexual harm prevention order.

"The reasons for my original ruling were wrong

"As a result of the prosecution's application for an adjournment, I took no further steps in the trial. I did not inform the jury of my original ruling or discharge them. I sent them away, explaining that there were legal issues which had not yet been resolved and asked them to return this morning.

It is not in issue that the judge applied the proper two stage test in accordance with R v Galbraith [1981] WLR 1039, albeit that he reached different conclusions in each of his successive rulings.

The defence made oral representations to the judge in which they challenged the lawfulness of his volte face. The prosecution, however, successfully argued that the judge was entitled to put into effect his change of mind.

The jury were then brought into court. They had no knowledge of what had happened in their absence. The applicant did not give evidence, and the jury went on to convict him.

That the judge erred as to the law in the procedure followed when he revoked his terminatory ruling made at half time;

That the judge erred as to the law when he revoked his terminatory half time ruling as having put the Crown in charge whilst considering an expedited ruling. The judge was not seized of the matter and thus had no authority to revoke it;

That there was a legitimate expectation by the applicant that the judge would not rescind his terminatory half time ruling.

No challenge is raised as to the substantive correctness of the second ruling to the effect that there was indeed a case for the applicant to answer. This, in our view, was realistic.

Does the wording of section 58 of the 2003 Act preclude a trial judge from reversing an earlier finding that there is no case for the defendant to answer during the period of adjournment which is granted to give the prosecution time in which to consider whether or not they will seek to challenge the earlier ruling on appeal?

If not, did the judge in this case otherwise have a discretion to decide to change his mind and reverse his earlier ruling?

If so, did his decision to change his mind fall within the legitimate parameters of the exercise of such discretion?

Section 58(2) , (3) and (11) of the 2003 Act provides that the prosecution may appeal in respect of the ruling in accordance with this section. The ruling is to have no effect whilst the prosecution is able to take any steps under subsection (4).

any consequences of the ruling are also to have no effect,

the judge may not take any steps in consequence of the ruling, and

if he does so, any such steps are also to have no effect."

It is argued before us on behalf of the applicant that the judge's second ruling, purportedly reversing his earlier ruling, was a "step in consequence" of the first ruling and must therefore have no effect. On this interpretation, the second ruling was completely ineffective.

We reject this analysis. The step in consequence of the ruling does not, in our view, include every step taken by the judge which, but for the ruling, would not have been taken. In this regard we accept the contention made by Mr Eldridge in the Respondent's Notice that the second ruling was a negation of, rather than a consequence of, the first ruling. The clear purpose of subsection (11) is to ensure that the judge takes no step in furtherance of the ruling of no case to answer. Otherwise, even in a case such as this, in which the judge realises that the first ruling was deeply flawed and completely unsustainable, he would have no power to prevent the matter proceeding to the Court of Appeal on the election of the prosecution on a case which, by common consent, although the outcome was inevitable, would give rise to delay, disruption and addition expense, with no compensatory advantages to anyone.

The applicant accepts, in general terms, that a judge in a criminal trial, during the course of that trial and before the jury had delivered their verdicts, normally has a discretion to reverse an earlier ruling. As Miss McCulloch, on behalf of the applicant, conceded, both in her oral submissions before the judge and in her skeleton argument relied upon in this application, it is only her interpretation of the wording of section 58 of the 2003 Act which is said to preclude the existence of the discretion which the judge purported to exercise when reversing his first ruling.

Having rejected that interpretation, however, we need say no more on the otherwise uncontroversial existence of the discretion in the circumstances of this case.

The judge's decision to reverse his first ruling was promulgated only about four hours after the first;

Even if the first ruling had been allowed to stand, the prosecution could have decided to appeal against it and go on to be successful in such an appeal before the Court of Appeal;

If there were any merit in the substantive challenge to the second ruling, then in the event of conviction such a challenge could have been made by way of an application for leave to appeal against conviction on the ground that the count of attempted rape ought not to have been left to the jury;

No such ground of appeal has been relied upon before us, and we consider that this omission marks a realistic recognition that the judge's second ruling and the reasons which he set out were, in substance, unimpeachable.

In conclusion, we are satisfied that this application should be refused. But we record that, bearing in mind the absence of earlier authority directly in point, we nonetheless give leave for this judgment to be reported and referred to in any future case in which our conclusions may be relevant.