R v Coates [2007] EWCA Crim 1471; [2008] 1 Cr App R 3
Court of Appeal — 22 June 2007
Facts
Phillip Coates, a senior naval rating, was convicted of rape at a court martial at HMS Nelson. He and the complainant, a naval medical assistant, had consumed alcohol at a social event aboard ship. They subsequently had sexual intercourse in the sick bay. Coates maintained that it was consensual.
The complainant was distressed afterwards and made oral complaints to other crew members. In a written statement that night, she described kissing Coates and then submitting to intercourse after trying to say no. In two later statements, however, she said that she could not distinctly remember the incident. She believed she had been raped because of her distress and her conviction that she would not have agreed to intercourse with him.
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After psychological therapy, she made a fourth statement describing a substantially different sequence: Coates had followed her into the sick bay and forced intercourse on her despite continuous resistance. At trial she adopted that account and could not remember the events described in her first statement.
What happened at trial?
The prosecution presented its case on the basis of the fourth statement. The defence therefore cross-examined the complainant about the inconsistencies and introduced the first statement as an exhibit.
The expert evidence was that the first account was more likely to be accurate than the later account. That did not establish that the first account was actually true. The Judge Advocate General eventually found the fourth statement and the testimony based on it unreliable, but nevertheless left them to the court-martial Board.
The Board convicted Coates on the basis of the first statement, the immediate complaint and the complainant’s distress. The sentencing remarks disclosed this basis for the verdict. It was an account which the complainant had disavowed in her evidence and which differed from the prosecution’s trial case.
Issues
The appeal concerned whether the first statement could fairly provide the basis for conviction and whether the Board had received adequate directions about the competing accounts. This required the court to consider sections 119 and 120 of the Criminal Justice Act 2003 alongside the power to exclude prosecution evidence under section 78 of the Police and Criminal Evidence Act 1984.
Decision
The Court of Appeal held that the conviction was unsafe and quashed it. Its reasoning concerned the unusual way this particular prosecution had developed, rather than a general rule that inconsistent statements or a complainant’s loss of memory prevent a rape conviction.
Why statutory admissibility was not enough
The first statement could not be admitted under section 120(4)(b), because the complainant did not confirm its truth: she rejected that version of events. However, the literal requirements of section 119(1), concerning a previous inconsistent statement admitted by a witness who gives oral evidence, were satisfied.
That did not end the inquiry. Section 78 still required attention to the fairness of using the evidence. The defence had introduced the first statement because the prosecution relied on the fourth; it could hardly challenge the later account without exposing the inconsistencies. In those circumstances, the first statement should not have been treated as admissible evidence sufficient to support the conviction.
The directions to the Board
The court also identified a separate difficulty. Even assuming that the first statement was properly admitted, the Board needed much fuller guidance about the possible bases for a verdict.
It had to be sure that the first allegation was true despite the complainant’s contrary testimony. The difference between submission after initial refusal and continuous physical resistance also mattered to the assessment of Coates’s state of mind. On the first account, the complainant’s alcohol consumption and its possible effect on her behaviour required consideration. Rejecting Coates’s description of enthusiastic participation did not, by itself, resolve those questions.
The court did not prescribe a fixed formula for such directions. It held that those given were insufficient for the particular evidential problems before the Board. It also expressly recognised that a rape prosecution may, in appropriate circumstances, succeed without oral testimony from the complainant.
