The Court of Appeal has replaced one of J.Q.’s rape convictions with a conviction for attempted rape after finding that the evidence did not support the completed offence on that particular count.
J.Q. was convicted unanimously in July 2023 of 11 sexual offences against a child. They included five counts of rape, two counts of aggravated sexual assault and four counts of sexual assault. The prosecution case concerned seven incidents said to have occurred when the complainant was aged between six and 11 and J.Q. was aged between 29 and 35.
The appeal ultimately focused on two rape convictions, counts 7 and 9. The defence argued that the complainant’s recorded interview did not provide sufficient evidence of the physical element required for completed rape on those counts and that the trial judge should have directed acquittals.
The Court of Appeal rejected that argument in relation to count 7. Mr Justice Patrick McCarthy said the complainant’s evidence clearly described at least slight vaginal penetration, which was legally sufficient for the completed offence. The trial judge had therefore been correct to leave that count to the jury.
The court reached a different conclusion on count 9. It found that the evidence described an unsuccessful attempt at vaginal penetration rather than completed vaginal intercourse. The rape conviction on that count could therefore not stand.
However, both sides accepted that the evidence was sufficient to establish attempted rape. Using its power under section 3 of the Criminal Procedure Act 1993, the Court of Appeal substituted a guilty verdict for attempted rape.
The court stressed that the jury had been directed to consider every count separately. It found no basis for treating the error on count 9 as undermining any of the other verdicts.
The remaining convictions were therefore unaffected by the ruling.