Rape cases where “No Comment” is not the best advice.

Our advice in many cases of rape and sexual assault.

Rape cases require high levels of skill from the defence.  This is especially so when the offence is alleged to have taken place in the context of two adults who are in an existing relationship or who have been in one in the past and the accused wishes to challenge the victims account. In these cases careful attention must be paid to the statutory provisions.

Rape is an offence contrary to the Sexual Offences Act 1956 which does not contain any statutory definition of “consent”. However the Sexual Offences Act 2003 required the prosecution to prove that the accused acted intentionally, that the victim did not consent and that accused did not reasonably believe that the victim consented.  S74 states that consent is given if, ‘s/he agrees by choice, and has the freedom and capacity to make that choice’. Capacity to consent can be impaired by alcohol and of course threats or intimidation. In short consent must be given freely. There is a long list of victims where consent cannot be given, such as children  and those with a mental disorder impeding choice which can be found in the legislation.

A complaint is made and the suspect arrested. We are called to the police station and receive disclosure from the officer in the case. This will often be limited in its extent and may not even refer to the fact that the accused and victim have been sexual partners in the past. We consult with our client who in many cases makes it clear that they had been involved in a prior relationship and that they fully believed that consent was given to the sexual activity. We have to press the client and make sure that they fully understand that consent in the past does not provide consent now.  The client facing an offence of the utmost gravity insists that they did believe that consent was given freely. Sometimes we are  told that the allegation is a retrospective withdrawal of consent, founded in anger, or emotional distress or even revenge. A decision has to be taken as the interview is to take place soon. The client’s options are threefold:

  • Answer  the questions
  • Make no comment
  • Submit a Prepared Statement

Answering questions can have its pitfalls in these circumstances. Disclosure will almost certainly have been partial; investigating officers rarely give away their whole hand.  It is unlikely that all the witness statements have been taken. The forensic evidence may not  have been analysed yet or statements prepared. The defendant will be answering questions without knowing the current extent, let alone the future totality, of the evidence.

Making no comment can also be the wrong path to take as an adverse inference can be made at trial.  If the defence is later one of consent then in cross examination the defendant will quite rightly be asked why they did not raise it when first given the chance. The defendant also loses the excellent point that as soon as they were accused they gave their version of events.

If the defendants account is fulsome and they have been comprehensively  advised as to their options, then a Prepared Statement has often proved to be the best way forward.  It is in effect a written outline of the accused defence . A skilled solicitor will help draft it and address all the issues as regards consent, as well as  the facts of the matter,  at least as far as provided in initial disclosure. The client will sign the statement and the interview will take place with the client declining to answer further questions.

The CPS have detailed guidelines for prosecution and sometimes cases go no further but when they do the Prepared Statement provides a structure on which to base the Defence Case Statement.

Jamie Ritchie, Partner, Moss & Co

Jamie Ritchie

Our solicitors have experience of dealing with a wide range of sexual offences.



Keith Hollywood







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