Fair's Fair?
| Published date | 01 January 2008 |
| Date | 01 January 2008 |
| DOI | http://doi.org/10.1350/ijep.2008.12.1.286 |
| Subject Matter | Case Notes |
CASE NOTE
FAIR’S FAIR?
CASE NOTES
Fair’s fair?
By Colin Tapper*
Emeritus Professor of Law and Fellow of Magdalen College, Oxford
he facts of RvFair1were depressingly simple and regrettably common-
place. It involved a sexual encounter between two strangers whose paths
crossed on their way home after a night out. The woman alleged that the
man attempted to rape her, and on failing in that endeavour resorted to
non-consensual fellatio (she was terrified by the attempted rape into passivity).
The man asserted that there was no attempt to rape (they merely stumbled over),
and that the fellatio was consensual (the woman willingly agreed to a request). The
first trial was for one count of attempted vaginal rape and another of consum-
mated oral rape. He was acquitted of the first, and the jury was unable to agree on
the second. He was then retried for the oral rape.
The legal and conceptual problems raised by this history are more complex and
unusual, and concern the proper conduct of the retrial. The accused objected to
being retried at all since he had been acquitted of what had been a substantial part
of a single continuing incident, and to the admission of evidence relating to the
count on which he had been acquitted as ‘background’ to the count on which he
was being retried. The trial judge held that it was not a unitary incident, but an
incident with two separate parts, and that there was no logical or legal inconsis-
tency between his acquittal of the alleged attempted vaginal rape and his guilt of
the oral rape. The facts of the former were relevant to the issue of consent to the
latter. The trial judge indicated that he did not think that the jury should be told
of the previous trial and acquittal, leaving the matter open for further argument.
The accused was found guilty, and drafted his own grounds of appeal against the
DOI:1350/ijep.2008.12.1.286
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2008) 12 E&P 53–57 53
T
1 [2007] EWCA Crim 597.
* Email: colin.tapper@law.oxford.ac.uk.
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