R v Monwar Hussain

This is a prosecution appeal against a decision to stay proceedings as an abuse of process.

On 27 September 2024, at a plea and case management hearing in the Crown Court at Norwich, the respondent pleaded not guilty to each count on an indictment containing two counts of rape, one count of sexual assault and one count of attempted rape. The trial started on 23 March 2026.

On 31 March 2026, after the respondent had given evidence and the defence case had closed, the judge raised concerns with counsel about delays and missing documents arising from the police investigation and questioned whether that amounted to an abuse of process. The hearing was adjourned until 1 April 2026 for the defence to draft an application to stay the indictment and for the prosecution to respond. The jury was not discharged but released until 9 April 2026, and thereafter to Monday, 20 April 2026, to await the outcome of the defence application.

On 1 April 2026, following submissions from both parties, the judge gave a brief oral ruling staying proceedings as an abuse. His written ruling providing fuller reasons was emailed to the parties in the early hours of 2 April 2026.

Later on 2 April 2026 the prosecution informed the judge that it intended to appeal his ruling and in a written application they sought leave to appeal and an order for expedition. The prosecution undertaking required by section 58(8) of the Criminal Justice Act 2003 ("CJA 2003") was provided. The judge declined to grant leave but indicated that the case should be expedited.

The Registrar has referred the prosecution application for leave to appeal under section 58 of the CJA 2003 to the full court on the basis that if leave is given the court would go on to hear and determine the appeal. We grant leave.

The prosecution case was that on 14 March 2020 the respondent sexually assaulted the complainant (C) (count 1), attempted to rape her (count 2), orally raped her (count 3) and vaginally raped her (count 4) when she was too intoxicated to have consented and the respondent could not reasonably have believed that she had consented.

At that time, the respondent was aged 22 and in full-time employment; C was 21 and a student. They knew each other from parties as acquaintances, rather than friends, although they had on occasions kissed and flirted. They both took Class A drugs, in particular cocaine, which, if cut with flour, presented a danger to the complainant, as she was gluten intolerant.

During the evening of the 13th and the early morning of the 14th March 2020, C, in company with the respondent, went to two public houses at which they both consumed alcohol and a number of lines of cocaine which had been provided by the respondent. Because of her gluten intolerance, the complainant was drinking cider. At about 2 am, after leaving a lock-in at the second public house, C and the respondent went to a house party where they continued to consume alcohol, cocaine and possibly ketamine.

At the house party both C and the respondent were intoxicated. Initially C appeared well. However, at some point during the early hours of the morning, possibly around 3 am or later, she became unwell. The respondent and W2, one of C's friends, assisted her in the toilet, where, at the respondent's suggestion, she made herself sick.

After this, C was seen to be sat slumped on a sofa by prosecution witnesses, most of whom, but not all, were good friends of hers. Five witnesses gave live evidence and the statements of two were read at trial. They described C's deterioration to a semi-conscious, or at times unconscious, state in which she was unable to stand or communicate in any meaningful way. She was provided with water but was unable to drink it and was unable to stand unaided. However, her condition did not cause anyone to consider obtaining medical help for her and some people apparently washed their hands of her and refused to continue to help her.

As guests started to leave the party, one of C's girlfriends called a taxi for her and she was helped outside to await its arrival. Some witnesses said that she was sitting on a low wall or at the kerbside while she waited. Most of the witnesses who gave evidence said that by now she was conscious but still appearing very ill.

When the taxi arrived, the respondent and C got in and went to her flat. There, C said in evidence, the respondent had to carry her up the stairs and she soon passed out on her bed.

In a video recorded ABE (Achieving Best Evidence) interview played in evidence, C stated that, while in bed, she woke to find the respondent performing oral sex on her. She was unable to speak or move and passed out again. She woke again as the respondent was attempting anal sex. She said, in a mumble, "No" and "Anal hurts", before again passing out. She said that she kept waking up to find him sitting on top of her face putting his penis in her mouth but that she could not stay awake for long and could not speak or move, she was "completely out of it". She then remembered being woken up by the respondent asking if he could finish in her, but could not remember if she said anything as she passed out again until the morning.

Following the incident, C told her friends what had happened and arrangements were made for her to attend at a sexual health clinic and also to obtain the morning after pill. She did not see the respondent again.

The respondent gave evidence in which he accepted that both he and C were equally heavily intoxicated through drink and drugs. He said that at the second public house, in addition to cider, C had drunk an unknown number of "Guinness shots" (which, the judge said, if accepted by the jury, might be of some importance because of the risk to the complainant of a significant adverse reaction to a product containing gluten).

The respondent maintained that C was capable of consenting to sexual activity; that consent had been sought and that she had given for all activity, save that as to count 2 (attempted anal rape), his flaccid penis had accidentally touched her anus as they lay spooning, having ceased any consensual sex by then as he could not achieve an erection.

C messaged a friend later on 14 March 2020 telling her what had happened. However, she did not report the matter to the police until October 2020. In the interim C had posted anonymously on Instagram, naming the respondent as somebody who had raped her.

C reported the allegations to the police on 3 October 2020. She took part in a video recorded interview on 1 December 2020.

The police investigation was initially carried out by the first officer-in-the-case ("OIC"), Detective Constable Weir. Statements from witnesses relied on by the prosecution at trial were taken from W1 in December 2020, W2 and W3 in January 2021, W4 in February 2021, and W5 in January 2022.

The respondent was interviewed by police on 12 February 2021. He named two witnesses who he said might be able to assist, "X" and "Y". Y provided a statement to police on 23 May 2021 stating that he had limited memories of 13 March 2020. A statement was also taken from X. However, the content of the statement was unknown as it was password protected and the police had kept no note of the password.

Additionally, some medical records were obtained, enquiries with taxi companies were completed and digital evidence was obtained by DC Weir.

DC Weir left the police force in December 2023. On 4 January 2024, Detective Constable Hubbard took over as OIC.

The prosecution submitted that DC Hubbard had conducted all reasonable lines of enquiry, including checking all enquiries completed by DC Weir, contacting every person named and asking them for an account. When X, who was by then living in Australia, was contacted on 19 February 2024 to provide a fresh statement, he told police that he would withdraw any support for the investigation and that he would not provide a further statement. In his ruling the judge referred to having been told by defence that the respondent had also been in touch with X, but that given the passage of time X had confirmed that he did not wish to be involved. As X was out of the jurisdiction by then, he could not be compelled to attend or to give evidence.

In early 2024, DC Hubbard had contacted a further seven witnesses but none of them could then remember the events of the party in any detail. It now appears that of these seven witnesses, two had not attended the party and one was not sure if he had.

The respondent was not charged until 8 July 2024.

There were agreed facts before the jury summarising the above and further noting defects and delays in the police investigation as follows:

We start by noting that we were much assisted by the judge’s helpful log kept on the Digital Case System of events at the trial.

The judge began by summarising the evidence and the parties' cases at trial. He noted that:

The judge went on to indicate that it was not until the close of the prosecution evidence that a set of agreed facts had been produced which "set out for the first time a series of admissions, accepted by the police as true, as to serious failings in the investigation of [C]'s allegations". The judge then proceeded to go through what he described as "very serious shortcomings in the investigation by the original officer in the case". He listed them as follows:

The judge then proceeded to set out in his ruling a draft direction to the jury dealing with shortcomings in the police investigation, describing it as "nowhere near strong enough to provide a safeguard to the [respondent]", but saying that he had been unable to work out what a satisfactory direction would look like.

Referring to the principles relating to abuse of process set out in Attorney General's Reference (No 1 of 1990) [1992] QB 630 and the requirement for a defendant to prove on the balance of probabilities that delay will cause serious prejudice preventing a fair trial, the judge concluded:

The judge proceeded to grant the stay.

Mr Gladwell for the prosecution submits that the judge's ruling was unreasonable. In his oral ruling the judge had given as a reason the unavailability of witnesses. Mr Gladwell says that the defence had never suggested that witnesses the respondent might have wished to call were unavailable. Mr Gladwell says further that the ruling did not show what serious prejudice had been caused. It was highly speculative that any witness would have been able to assist the defence. Mr Gladwell pointed to the fact that the defence case as put to C when she gave evidence was not that she was lying about what had happened, but that she was so intoxicated at the time that she simply did not remember correctly, i.e. that it was not her credibility which was in issue but rather her reliability. Finally he points to errors in the ruling as follows: the defence were not made aware of shortcomings in the police investigation for the first time at the end of the defence case; the shortcomings, along with the names of potential witnesses, would have been clear since at least the time of disclosure in July 2024; although the judge referred to the possibility of witness evidence being affected by C's Instagram post and the subsequent "Me Too" reactions on social media, no witness had been asked about this, nor had it been suggested to any of them that their recollections had been swayed by anything they had read online; while the agreed fact had made reference to seven further witnesses having been contacted by DC Hubbard, in fact the position had been corrected before the judge to clarify that of the seven, two had not been at the party at all and one was not sure if he had attended it; there was only one missing statement, that of X, not two as the judge's ruling suggested.

Finally, Mr Gladwell stressed that there were proper directions which could be given to the jury to provide sufficient safeguards for the respondent in these circumstances and that the judge had been wrong to find otherwise.

Mr Reynolds, for the respondent, stresses that the bar for a successful review of a terminating ruling is a high one. The judge in this case had heard all the evidence, seen all the witnesses and was in the best position to assess the impact of the delays and lost evidence on the fairness of the trial. He had directed himself properly as to the correct principles to be applied. There were two points to be made about unavailable witnesses: first there was X, whose statement had been lost and who was now unable to be compelled. He was a witness whom the respondent had himself identified at the time as potentially able to assist; second and more generally, there were witnesses who, when they were finally interviewed nearly four years after the event, had little or no recollection of events. This was critical, given the prosecution case which was that C's state at the party and on leaving the party was such that she could not have been in a position to consent very shortly afterwards on her return to the flat. Mr Reynolds suggested that witnesses who could speak to C's state at the party were potentially key to the defence case that she had been able to consent to sex with the respondent at her flat. The distinction between credibility and reliability was a distinction without a difference in circumstances where the respondent's case was that C, though intoxicated, was in a state to consent and had consented to sex with him.

On an appeal by the prosecution under section 58 of the CJA 2003, this court may not reverse a ruling unless it is satisfied that the ruling was wrong in law, that it involved an error of law or principle, or that it was a ruling that it was not reasonable for the judge to have made: see section 67 of the CJA 2003.

The two limbs by which proceedings may be stayed for abuse are: (i) that the defendant cannot have a fair trial; or (ii) that a trial will offend the court's sense of propriety and justice or will undermine confidence in the criminal justice system and bring it into disrepute: see R v Horseferry Road Magistrates' Court, ex parte Bennett [1994] 1 AC 42; R v Latif [1996] 1 WLR 104. The judge's decision in the present case was made under the first limb; he held that delays and defects in the police investigation were such that a fair trial was not possible.

The principles applying to stays under the first limb were reviewed by Brooke LJ, giving the judgment of the court in R v Feltham Magistrates Court, ex parte Ebrahim [2001] EWHC Admin 130 at [24] to [27]:

In the case of Ali v CPS [2007] EWCA Crim 691, cited as similar to the present one by Mr Reynolds in his written response to the application, the court was considering the safety of convictions where there had been a nine year delay between the alleged sexual offending and the defendants being charged. There were no photographs of the complainants, who had been aged 13½ at the time, but it was said had looked older. Moreover, the initiation of complaints had been "unsatisfactory", against which the loss of police notebooks of initial interviews was a matter of some significance. A friend of the complainants, whom they had telephoned shortly after the events complained of, could no longer assist. What evidently concerned the court in that case was whether the remaining prosecution evidence could be said to be "untainted by what has gone missing" (at [30]). In the particular circumstances of that case the court concluded that "the loss of material evidence combined with unsatisfactory evidence as to how the complaints were first made, cause doubt as to the safety of the verdicts". ([45]).

The present case is, in our view, very far from the situation in Ali. The cases are similar only in that both concerned allegations of rape where the defence was one of consent. But in other respects they are quite different: here the delay in the police investigation, though significant and lamentable, was four years, not nine. There was good evidence of C's immediate complaint to a friend. Only two people were in the flat at the relevant time and both of them gave evidence. The prosecution evidence of C's condition at the time the respondent had sex with her was credible and was not rendered in the least unreliable by the delay.

It is difficult to see that more evidence from people at the party could have affected the fundamental position that C was heavily affected by drink and/or drugs at the time she left the party and got into the taxi. The absence of evidence from C's best friend and the loss of evidence from X is highly regrettable, but we cannot see that further statements from these two witnesses, or indeed from the four or five others identified as present, could have altered the picture to such an extent that the absence of their evidence amounted to serious prejudice. Had the delay meant that there were no witnesses from the party who could speak to C's state, then the position would obviously have been quite different, but here there were seven such witnesses who gave evidence live or whose evidence was read, all of whom described C as being semi-conscious or unconscious but recovering somewhat, though still ill, when outside waiting for a taxi which a friend had called for her.

The judge referred to the loss of paper files, containing notes of the ABE and PACE interviews, but these are of no consequence since the recordings and transcripts were available.

It is clear that the issues arising from delays and incompetence in the police investigation were fully and properly explored in disclosure and during the trial process. The jury, through the agreed facts and evidence from the present OIC, have been made well aware of what has taken place.

The judge correctly identified the sole issue for the jury to decide, namely whether C, when in her flat, was in a state to consent to sex with the respondent and, if not, whether they were nevertheless sure that the respondent did not reasonably believe that she consented. With respect to this very experienced judge, we conclude that he fell into error in determining that the delays and missing witnesses gave rise to serious prejudice to the respondent in addressing that issue at trial.

In our view, the judge was also mistaken in concluding that a proper direction to the jury could not adequately address the potential disadvantage to the respondent resulting from the delays. The draft direction which he set out in his ruling appears to suggest to the jury that they could not be sure of the prosecution case unless they had had evidence from every person present at the party. As we have sought to explain above, though there were attendees from whom statements had not been taken, and one whose statement could not be accessed, the jury still had evidence from a number of people at the party.

We suggest that the better approach to directing the jury in this case would be in accordance with the text and example direction given in the section of the Compendium dealing with delay (section 10-4), which is to set out the matters which may give rise to disadvantage, before directing the jury that if they feel that the respondent has been, or may have been, disadvantaged by any or all of these matters then they should take that into account in his favour when deciding whether the prosecution has proved the case against him. In formulating his final directions to the jury, the judge will no doubt consult with counsel as to what matters resulting from delay the jury ought properly to be reminded of and directed about. We suggest that such matters will include: the effect of passage of time on C's recollection when giving her account in an ABE interview in December 2020, nearly nine months later, having discussed events with friends in the meantime; the effect of delay in taking statements from witnesses at the party, including the risk of inaccuracies in the statements remaining uncorrected, as memories will have faded; the risk of recollections being affected by intake of alcohol or drugs at the time and the risk of subsequent discussions and messaging between friends affecting memory; the potential disadvantage to the respondent of (i) not being interviewed until February 2021, nearly a year later when his own memory of events would have faded, (ii) the effect of delay on memory and/or readiness to give evidence of the two witnesses, X and Y, whom he had named to police as potentially being able to help, (iii) the existence of seven other witnesses at the party whom police did not contact until early 2024, four years after the party, who by then could not remember any details of it, (iv) the failure to trace the taxi driver and obtain a statement from him, and (v) missing enquiry notes from DC Weir and other paper files which have gone missing.

For these reasons we are satisfied that ordering a stay of the proceedings was a ruling that it was not reasonable for the judge to have made. The stay will accordingly be set aside. The court and the judge will be told immediately so that the trial can continue on 20 April 2026 when, as we understand it, the jury have been invited to come back and resume.

In the meantime, we direct that there shall be no reporting of this case until the trial has concluded. The prosecution, Mr Gladwell, are asked to notify the Registrar's office immediately that has happened. The judgment will not be published until then, although I will ensure that the court and the judge are notified immediately of the result. I have asked that the transcription be expedited, so that we can ensure that the judge has a copy before the end of the week so that he can see what we have said, especially about directions to the jury.

I am sure that both of you will have taken note of that. There may be other matters, Mr Reynolds, but you and Mr Gladwell between you will see that the judge has a full list of all the matters about which the jury will need to be directed.

MR REYNOLDS: I am grateful, my Lady. My Lady, two matters. First, just so that the court is aware, we are intending to sit to discuss directions tomorrow.

LADY JUSTICE MAY: Oh, are you? Right. I am sure that the shorthand writer has taken a note of that.

MR RENYOLDS: And secondly – I confess that I do not know whether I should be asking for this or not, but if I were appealing, I would ask for a representation order. I do not know if I need one here, and I apologise because I am not familiar with this particular circumstance.

THE ASSOCIATE: My understanding is that it would normally be covered by his Crown Court certificate, because it is still technically ongoing.

LADY JUSTICE MAY: Did you hear that?

MR REYNOLDS: That is great news. I am grateful.

LADY JUSTICE MAY: Is there anything else we need to deal with?

MR GLADWELL: No, thank you very much.

LADY JUSTICE MAY: The directions are clear: there must be no reporting and the judgment cannot be reported until after the trial has concluded. But you will let us know when that happens?

MR GLADWELL: Yes.