Westlaw criminal cases update
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R. (Sex Matters) v National Police Chiefs’ Council and another
King’s Bench Division (Administrative Court) (Linden J)
31 July 2026
[2026] EWHC 1954 (Admin), CLW/26/29/8
Summary: Guidance issued to police officers that a transgender person could be strip searched by an officer of a different biological sex with the consent of both parties was not ultra vires the Police and Criminal Evidence Act 1984 Pt V s.54(9). The relevant provisions in PACE did not extinguish the common law ability of a police officer, acting in the capacity of a citizen, to enter into consensual arrangements with members of the public, including in the course of carrying out their work.
The claimant charity applied for judicial review of guidance issued by the defendants relating to searches by transgender police officers and the searching of transgender detainees.
The guidance was applicable to strip searches and stated that, as long as both the suspect and the officer gave their consent, a transgender person could be strip searched by an officer of a different biological sex. The Police and Criminal Evidence Act 1984 Pt V s.54(9), s.54A and s.54B provided that the officer should be of the same sex as the person searched. The parties agreed that, following the decision in For Women Scotland Ltd v Scottish Ministers [2025] UKSC 16, [2026] A.C. 315, [2025] 4 WLUK 275, ‘sex’ in that context meant biological sex, regardless of whether the person had a gender recognition certificate.
The claimant submitted that a police officer had no power to conduct a strip search other than in accordance with PACE, and that the guidance was unlawful because it authorised strip searches which were prohibited by PACE. It argued that there was no power at common law to carry out a strip search of a private citizen on the basis of consent, and it was not open to the police to ‘contract out’ of PACE or create a shadow regime for transgender people.
The defendants argued that a police officer had the same powers and rights as any citizen as well as additional powers conferred on them by PACE, and that the general rule was that physical interference with another person’s body was lawful if they consented to it.
Held
Application refused.
Common law – The issue was whether the terms of PACE and its relevant codes had excluded or extinguished any ability at common law to consent to a strip search. Provided the consent was genuine and the search was lawful, the public interest did not require that the law should refuse to recognise the consent of a person to a strip search which was in accordance with their preference to be searched by a person of a different biological sex. Under the guidance, absent such consent, the search would be lawfully carried out in any event but not in accordance with the person’s preference. It was not a situation where the person was consenting to the infliction of injury, R. v Brown (Anthony Joseph) [1994] 1 A.C. 212, [1993] 3 WLUK 189 and F v West Berkshire HA [1990] 2 A.C. 1, [1989] 5 WLUK 284 considered. The effect of the ability to consent to a search by a person of the opposite biological sex was to mitigate the distress which the detained transgender person might feel. In principle, at common law a detained person could express a preference that they would be strip searched by a person of a different biological sex, and a police officer could agree to do so, For Women Scotland considered (see paras 81, 86, 88 of judgment).
PACE – The relevant parts of PACE were concerned with the coercive powers of the police. The effect of s.54(9), s.54A(7) and s.54B(6) was that the ‘same sex guarantee’ applied to the exercise of those coercive powers. They were not concerned with the capacity of police officers, as citizens, to enter into consensual arrangements with members of the public, including in the course of carrying out their work. It followed that the common law ability to enter into such arrangements was not inconsistent with the relevant provisions of PACE and the two could stand together. The enactment of PACE did not extinguish the ability of police officers to enter into such arrangements, R. (on the application of Rottman) v Commissioner of Police of the Metropolis [2002] UKHL 20, [2002] 2 A.C. 692, [2002] 5 WLUK 425 followed. That conclusion was limited to the position in relation to strip searches which, absent consent, were authorised by s.54-s.54B and Annex A to Code C (paras 91-96).
R v Hussain
Court of Appeal (Criminal Division)
16 April 2026
[2026] EWCA Crim 514, CLW/26/27/1
Summary: A judge presiding over the trial of a man for sexual offences including rape had been wrong to stay the proceedings as an abuse of process on the basis of admitted serious delays and errors in the police investigation. The prosecution case was that the complainant had been too intoxicated to have consented. The defendant and complainant were the only two people present at the relevant time and both had given evidence, and there had been sufficient credible witness evidence of the complainant’s condition which was not rendered unreliable by the delay.
The prosecution appealed against a trial judge’s decision to stay the prosecution of the respondent/defendant (H) as an abuse of process.
H was being tried for rape, sexual assault and attempted rape allegedly committed when the complainant (C) was too intoxicated to have consented and H could not reasonably have believed that she had consented. They knew each other and had both been drinking and taking cocaine at pubs and then at a house party. They were both intoxicated. At some point C became unwell, and her friends gave evidence that she was semi-conscious or unconscious and unable to stand or communicate. When a friend called a taxi for her, she was conscious but still ill. She and H took the taxi to her flat. Her evidence was that he carried her upstairs and she passed out on her bed. She awoke briefly to find H performing oral sex on her, and later to find him attempting anal sex, to which she said no. After that she kept waking up to find him putting his penis in her mouth before she passed out until the morning. Afterwards, she told her friends what had happened, but did not report it to the police until about eight months later. She was interviewed two months later. H was interviewed a few weeks after that but was not charged until three-and-a-half years later.
He accepted that he and C had both been heavily intoxicated but said that C was capable of consenting, and had consented, to all the sexual activity except for the attempted anal rape which he denied had happened.
After H had given evidence and the defence case had closed, the judge raised concerns about “admitted serious failings” in the police investigation, including extensive delays and missing documents, and stayed the proceedings as an abuse.
Held
Appeal allowed.
Abuse of process – The delay in the police investigation, although significant and lamentable, was four years, not nine, Ali v Crown Prosecution Service [2007] EWCA Crim 691, [2007] 3 WLUK 569 distinguished. 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 had given evidence. The prosecution evidence of C’s condition at the time H had sex with her was credible and was not rendered unreliable by the delay. It was 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 got into the taxi. The absence of evidence from C’s best friend and the loss of evidence from a witness for H were highly regrettable, but further statements from them could not have altered the picture to such an extent that the absence of their evidence amounted to serious prejudice. If the delay had meant that there were no witnesses from the party who could speak to C’s state, then the position would have been different, but there was evidence from seven such witnesses, all of whom described C as being semi-conscious or unconscious but recovering somewhat, although still ill, when waiting for the taxi (see paras 37-42 of judgment).
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 had been made well aware of what had taken place (para.44).
The judge had 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 H and, if not, whether they were nevertheless sure that he did not reasonably believe that she consented. However, the judge erred in determining that the delays and missing witnesses gave rise to serious prejudice to H in addressing that issue. It had not been reasonable for him to stay the proceedings (paras 45, 48).
Jury directions – The judge was also mistaken in concluding that a proper jury direction could not adequately address the potential disadvantage to H. His draft direction appeared to suggest to the jury that they could not be sure of the prosecution case unless they had evidence from every person present at the party. The better approach to directing the jury would be in accordance with the text and example direction given in the Crown Court Compendium s.10-4 (delay), namely to set out the matters that might give rise to disadvantage, before directing the jury that if they felt that H had been, or might have been, disadvantaged by any or all of those matters then they should take that into account in his favour when deciding whether the prosecution had proved the case against him.
The final jury directions addressing delay should include: the effect of the passage of time on C’s recollection when being interviewed; the effect of delay in taking statements from witnesses at the party; the risk of recollections being affected by alcohol or drugs at the time, and the risk of subsequent discussions between friends affecting memory; and the potential disadvantage to H of:
- not being interviewed until nearly a year after the evening in question;
- the effect of delay on memory and/or readiness to give evidence of H’s two witnesses;
- the existence of seven other witnesses at the party whom police did not contact until four years after the party, who by then could not remember any details;
- the failure to trace the taxi driver;
- and missing enquiry notes from the officer in charge and other paper files (paras 46-47).
R. v McCafferty and others
Supreme Court
14 July 2026
[2026] UKSC 20, CLW/26/27/4
Summary: A right to pass to and from private business premises over a road which was a private way and not a highway was not “a right that may be exercised or enjoyed by the public at large”, the obstruction of which could constitute an offence of public nuisance under the Police, Crime, Sentencing and Courts Act 2022 Pt 3 s.78(1)(b)(ii).
Defendants who were being prosecuted for public nuisance contrary to the Police, Crime, Sentencing and Courts Act 2022 Pt 3 s.78(1)(b)(ii) appealed against the Court of Appeal’s decision that the trial judge had been wrong to find that there was no case to answer.
The defendants were animal rights protesters who had obstructed passage to and from a dairy works. The dairy works site was on an industrial estate whose only road access was via a private road. The defendants blocked the private road, preventing vehicles from entering or leaving the site.
Section 78(1)(b)(ii) provided that a person committed a public nuisance if their act or omission intentionally or recklessly “obstructs the public or a section of the public in the exercise or enjoyment of a right that may be exercised or enjoyed by the public at large”. The judge held that the public at large did not have a right to travel along the private road, or to enter or leave the site, because it was on private premises, meaning that the offence could not be made out.
The Crown appealed. Before the Court of Appeal, the defendants conceded that, where the owner of private land permitted the public generally to enter onto the land, members of the public had a right that could be exercised by the public at large within s.78(1)(b)(ii). The court allowed the appeal, but certified the following question for the Supreme Court: whether persons who went to private business premises for some reason connected with the business were a section of the public exercising a right which could be exercised by the public at large within s.78(1)(b)(ii) when they approached, entered and/or left the premises.
Held
Appeal allowed.
Defendants’ concessions before Court of Appeal – If the defendants’ concessions had been correctly made, the Court of Appeal’s reasoning was unassailable. If the public at large had a right to pass along the private road to approach the site, the defendants’ acts fell within s.78(1)(b)(ii). However, a court was not bound to accept a concession when the point conceded was one of law, Bahamas International Trust Co Ltd v Threadgold [1974] 1 W.L.R. 1514, [1974] 11 WLUK 65 followed. The public at large were not authorised to pass along a private road. In general, the only people who could lawfully use a private road were the owner or other occupier of the land and anyone granted a right of way along the road or permission to use it by the occupier. Although the use of the private road by other people might have been tolerated, that did not mean that someone who had no business at any of the premises on the road, but who chose to walk along it for some other purpose, was acting lawfully. Such a person was in law a trespasser even if the trespass was tolerated (see paras 15-19 of judgment).
Language of s.78(1)(b)(ii) – Even if the owner of the road had granted permission to the general public to use the road, that would not constitute a right within the meaning of s.78(1)(b)(ii). A right of way was an interest in land which others owed a duty not to interfere with. A licence merely made it lawful for the licensee to do what would otherwise be a trespass. Unlike a right of way, a licence was dependent on the continuing consent of the landowner and could always be revoked. The language of s.78(1)(b)(ii) was clear: the term ‘right’ as used in that provision would not reasonably be understood to include a licence or permission. A person given permission by the landowner to enter private land was thus not exercising a “right” within the meaning of the subsection; and the fact that a landowner permitted the general public to enter the land, either unconditionally or subject to conditions, was not the same as the public having a ‘right’ to do so (para.20).
Law Commission report – Before the 2022 Act had abolished the common law offence of public nuisance and replaced it with the offence under s.78, that reform had been recommended in the Law Commission consultation paper Simplification of Criminal Law: Public Nuisance and Outraging Public Decency (2010). The report had noted that, for the common law offence, the ‘rights’ of the public had been interpreted broadly, to include the general right of the public to go about its business without interference or annoyance, instead of being confined to specific and enforceable rights such as a right of way; it recommended that, if similar wording was used in the new statutory offence, it should be interpreted equally broadly. In his concurring judgment in this case, Lord Sales suggested that the Law Commission’s opinion could be relied on as an aid to statutory interpretation if the Pepper v Hart conditions were satisfied, which they were not in this case. The majority did not agree with that suggestion. There could be no assumption that the Law Commission’s opinion had been adopted by Parliament (paras 48, 56-57, 111-116).
In any event, the common law offence had not included a general right of the public to go about its business. Such a right would be extremely wide and vague and could not satisfy the requirement that the scope of an offence must be clear, precise and adequately defined (paras 58-61).
Public right of egress – As a fallback argument, the Crown argued that the public at large had a right of egress from the site despite having no right of entry: nobody could lawfully prevent a member of the public from leaving the site except in special circumstances such as exercising a power of arrest. However, whether a person was a trespasser on private land did not depend on whether they were coming or going. Everyone, including trespassers, had a right not to be imprisoned without lawful authority, but a partial interference with freedom of movement did not amount to imprisonment. If a road was blocked so that a person was prevented from exercising a right of way, then unless the effect was to confine the person within a particular space, that person had not been imprisoned, Bird v Jones 115 E.R. 668, [1845] 1 WLUK 11 applied (paras 68-70).
Scope of s.78(1)(b)(ii) – Persons going to private business premises for a reason connected with the business were not exercising a right which could be exercised by the public at large within the meaning of s.78(1)(b)(ii) when they entered or left the premises. The public at large did not have a right to be on private premises. Whether such persons were exercising such a right when they approached the premises depended on whether the land over which they passed was a highway. If it was, they were exercising such a right. If the land was a private road over which only persons granted a private right of way or permission by the owner or occupier of the land could lawfully pass, they were outside the scope of s.78(1)(b)(ii) (paras 71-72).
Disposal – Accordingly, the judge had been correct to rule that the evidence disclosed no case to answer. The defendants would be acquitted (para.77).
Att.-Gen.’s References (R. v X, Y and Z) (No. 2)
Court of Appeal (Criminal Division)
17 July 2026
[2026] EWCA Crim 913, CLW/26/28/1
Summary: The CPS had demonstrated serious failures by issuing a press release containing egregious inaccuracies in relation to the factual basis upon which three young offenders had been sentenced for rape, and by unacceptably delaying correction of those errors despite the press release causing sensationalist reporting in the media. Further, the Attorney General, having referred the sentences to the Court of Appeal as being unduly lenient under the Criminal Justice Act 1988 s.36, had chosen to make public statements about the gravity of the offending, and had lent endorsement to the misreporting by failing to correct the inaccuracies. He had associated the making of the references with government policy, whereas his power to refer sentences under s.36 had to be exercised independently and not in pursuit of government agenda.
The court gave a judgment in relation to concerns arising from references which had been made by the Attorney General under the Criminal Justice Act 1988 s.36 relating to sentences imposed on three young offenders for offences of rape.
The offenders had been sentenced on 21 May 2026, receiving non-custodial sentences. The same day, the CPS issued a written press release which contained two material factual inaccuracies in relation to the factual basis upon which the offenders had been sentenced, erroneously asserting that the offences involved the use of a knife.
Immediately after the sentencing, sensationalist reporting in the media commenced, with heavy reliance on the factual inaccuracies. The source of the reporting appeared to be the press release.
The judge and the offenders became the subjects of widespread condemnation and vilification.
On 26 May, the Attorney General announced, via a video message and a press release, that he had referred the sentences to the Court of Appeal as being unduly lenient. His announcement expressly associated his decision with government policy addressing violence against women and girls.
Counsel for the offenders contacted both the CPS and the Attorney General to express concerns about the routinely inaccurate reporting of the factual basis of the sentence, and the significant reaction that it was causing from politicians and the public. The Attorney General did not respond, but on 29 May he gave a podcast interview in which he discussed the case but did not correct the inaccuracies. On 10 June, the CPS amended its press release to remove the factual inaccuracies and to include a note indicating that the original release had contained inaccuracies. The date of the amended press release remained 21 May.
Held
Judgment accordingly.
CPS errors – The errors in the original press release had been egregious and the delay in correcting them had been unacceptable. The CPS ought to have checked its press release as soon as the inaccurate press reporting started. The press release was an obvious potential source of the widespread misreporting and it was difficult to understand why the volume of enquiries and extent of misreporting did not trigger a review of it. A further significant shortcoming was the manner in which the corrections were eventually made. Given the high profile of the matter, the corrections should have been made in a far more public way than a simple re-release of the same document bearing the same original date. There should have been a standalone fresh document with, for example, a link to the judge’s sentencing remarks (see paras 20-25 of judgment).
Attorney General’s errors – When the Attorney General referred a sentence to the court he became a party to those proceedings and was answerable to the court for the conduct of those proceedings. He was not required to make any public statement, but had chosen to do so, both when he announced the references and when he gave the podcast interview. The sentencing and subsequent commentary upon it had created a highly unusual febrile atmosphere. The court was entitled to ask why the Attorney General’s public utterances did not correct the factual inaccuracies or explain to the public that the justice system had a mechanism for dealing with unduly lenient sentences which should be allowed to take its course without further attacks on the sentencing judge. The Attorney General was not under a general duty to patrol the accuracy of press reporting, but he was exercising a statutory power in the public interest. In the podcast interview, he professed to have detailed knowledge of the facts. If a member of government, particularly the Attorney General, chose to make public statements about the gravity of offending, then they should ensure that what was communicated was fair and accurate, correcting any widespread misreporting of which they were aware. Otherwise, they lent currency and endorsement to the misreporting. In those circumstances, it fell to the Attorney General to publicly correct the factual inaccuracies, to protect the administration of justice, the safety of all involved and to underscore the cardinal importance of the public being given accurate information about what was happening in their justice system (paras 29-32, 40-43).
The Attorney General must have known from the widespread commentary that the judge was under personal attack. However, no one within government had said publicly that the attacks on the judge were improper and a threat to the independence of the judiciary (para.44).
The events demonstrated the importance of separating the exercise of powers under s.36 of the 1988 Act from politics. The Attorney General had associated the making of the references with government policy from the outset. The power to refer under s.36 was not vested in the government, but in the Attorney General who had to exercise it independently and not in pursuit of government agenda (para.45).
CLW comment
Stinging though this follow-on judgment is, it actually pulls its punches, or perhaps more accurately, prompts the reader to draw certain conclusions that in earlier times would surely have ended the careers of those responsible. Start with the CPS. Sentence took place on the afternoon of 21 May. The materially inaccurate press release was made available immediately thereafter. As to how those inaccuracies came about, the court was blithely informed by way of letter from Stephen Parkinson, Director of Public Prosecutions, that “the draft press release was prepared ahead of the sentencing hearing and was based on aspects of the prosecution case as advanced at trial”.
Did the unnamed individual charged with the task of preparing the release attend the trial? Was he/she unaware of the primacy of the contested allegations of kidnap and use of a knife in the forthcoming sentencing hearing? In what sense was it a ‘draft’ if in fact it was disseminated without regard to the judge’s actual sentencing remarks? Who signed off on it? And why did the unnamed CPS lawyer in charge of the case not issue a correction as soon as he/she realised that the errors were feeding a media frenzy that was manifestly inimical to the interests of justice? How could it possibly take until 10 June before the press release was amended? Who sat on it and why?
Underpinning these questions is a problem that explains why so many aspects of the criminal justice system chronically underperform: accountability or lack of it. All too often, those who appear in the limelight – prosecuting counsel in particular – have responsibility without power, the Farquharson guidelines notwithstanding. Those who take, or fail to take, crucial decisions are usually in the shadows. They have power without responsibility.
While the criminal practitioner will likely find the above familiar if depressing, the conduct of the then Attorney General is in a different league. To understand why requires close attention to the detail, all of which appears in the instant judgment.
On 26 May, three applications for permission to refer the sentences were submitted. Later the same day, the Attorney General issued a press release and a video message confirming he had done so. On what basis? Jump forward to 1 July, when counsel instructed on his behalf assured the Court of Appeal that the Attorney General had considered the judge’s sentencing notes before making his decision to refer. If so, why then did he not correct the wildly inflammatory reporting of the case in his press release and video message? Or when he was interviewed on 29 May by the BBC’s Nick Robinson? The trial judge’s full sentencing remarks were finally published on 4 June. The Robinson podcast was not publicly available until 6 June. There was ample opportunity to lower the temperature. Instead, the Attorney General raised the mercury still further.
Meanwhile, two defence counsel had made valiant efforts to alert both the CPS as an institution and the Attorney General personally as to the pressing need for corrective statements to be made. Edward Henry KC’s email of 28 May to Lord Hermer KC set out in terms that, not only was the factual basis for sentence being routinely misstated, but that the trial judge had become the subject of personal vilification, such that a petition calling for him to be investigated had amassed over 100,000 signatures.
Unforgivably, Mr Henry KC never even received an acknowledgement. The Attorney General confirmed that he was “made aware of the contents of the email on 3 June… he did not reply to the email on advice with which he agreed”.
Such were the threats that the trial judge moved out of his home. Neither Lord Hermer KC nor Stephen Parkinson nor David Lammy in his then role as Lord Chancellor made any public statement condemning the attacks upon the judge.
Should we not look again at the separation of powers? In a liberal democracy, there is no good reason why criminal justice should be the plaything of party politics. The instant debacle is an example of just that – looking tough, playing tough, being tough.
Time, gentlemen, please.
Andrew Campbell-Tiech KC
R v How and another
Court of Appeal (Criminal Division)
17 April 2026
[2026] EWCA Crim 476, CLW/26/21/2
Summary: For the offence of arranging or facilitating the travel of another person with a view to exploitation under the Modern Slavery Act 2015 s.2, it was not necessary to prove that the travel was arranged or facilitated by the specific ‘means’ listed in Article 4 of the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT). The plain wording of the legislation required only that the travel was arranged or facilitated with a view to exploitation, regardless of the means used.
The appellants appealed against their convictions for conspiracy to arrange the travel of sex workers with a view to exploitation under the Modern Slavery Act 2015 s.2.
In both cases, the prosecution had established that the appellants had arranged travel for sex workers to work in a brothel in Portsmouth. However, there was no evidence that such travel had involved any coercion, deception, or any of the ‘means’ specified in Article 4 of the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT).
The issue on appeal was whether proof of the ‘means’ listed in art.4 ECAT was required for a conviction under s.2.
The appellants argued that without proof of such ‘means’, there was no evidence to support a conspiracy to commit the offence under s.2.
The prosecution argued that s.2 was clear and did not require proof of such ‘means’. It maintained that travel arranged with a view to exploitation was sufficient.
Held
Appeals dismissed.
On the plain words of the Act, s.2 did not require proof that the travel was arranged or facilitated by the “means” listed in art.4 ECAT.
- Section 2(1) defined the offence without reference to the use of any of the “means” described in art.4 ECAT; it was enough if the travel was arranged or facilitated by any means with a view to exploitation, regardless of the means.
- Section 2(2) explicitly made consent to the travel irrelevant. That was materially, and intentionally, inconsistent with art.4, which stated that the consent of the victim to the intended exploitation was irrelevant, but did not say that consent to the travel was irrelevant.
- Parliament must be taken to have carefully considered how to enact the obligations contained in ECAT into national law and to have paid particular attention to the words of art.4. That it did so was clear from the use in s.2 of many of the phrases which appeared in art.4. Its decision to deliberately omit the “means” requirement in art.4(b) ECAT from s.2(2) was, therefore, significant in construing the effect of the provision (see paras 27-31 of judgment).
As regards other aids to interpretation:
- Section 1(2) of the Act expressly required certain terms to be construed in accordance with ECHR art.4, which, as established by VCL v United Kingdom (77587/12) (2021) 73 E.H.R.R. 9, [2021] 2 WLUK 541, had to be interpreted in light of ECAT, VCL considered. However, s.2 contained no such obligation, and that omission was both significant and unlikely to be accidental (para.33).
- The statutory defence under s.45 of the Act for victims of slavery or trafficking should not influence the interpretation of s.2. The offence under s.2 was complete once travel was arranged or facilitated with a view to exploitation, regardless of whether the victim would later qualify for the s.45 defence. The Act deliberately treated the creation of the offence and the availability of the defence differently (paras 34-38).
- R. v Karemera (Michael) [2018] EWCA Crim 1432, [2019] 1 W.L.R. 4761, [2018] 6 WLUK 675, which interpreted a similar trafficking offence under earlier legislation, confirmed that the actus reus was simply arranging or facilitating travel with a view to exploitation without any requirement to prove specific “means”, Karemera applied (paras 39-41).
- Explanatory Notes were a legitimate aid to statutory interpretation, R. v Massey (Steven John) [2007] EWCA Crim 2664, [2008] 1 W.L.R. 937, [2007] 10 WLUK 513 considered. The Explanatory Notes to the Act confirmed that it was intended to fulfil the UK’s international treaty obligations by creating criminal offences which would catch the behaviour described in those treaties. They did they not, however, address whether s.2 created a wider offence than required by those obligations (paras 22-24).
- The views outlined in CPS and Home Office Guidance, as well as leading textbooks, were persuasive but were not authoritative for interpreting the statute (paras 25-26).
R. v HGF
Court of Appeal (Criminal Division)
22 April 2026
[2026] EWCA Crim 570, CLW/26/24/1
Summary: A Crown Court trial judge had not erred in staying a prosecution for sexual assault as an abuse of process, where the police had failed to obtain CCTV footage that would have been the defendant’s primary means of challenging the complainant’s allegation.
The complainant was staying at a hotel with her family. The respondent, a friend of her father, was also present. They spent the evening drinking. Later on, the complainant went to the respondent’s room where she alleged she was sexually assaulted by him. Both the complainant and the respondent dialled 999, and the police attended. The respondent denied the offence and maintained from the outset, including during interview, that CCTV footage from the hotel would back up his account. The interviewing officer told the respondent that the police would obtain the CCTV footage from the hotel. However, the police did not obtain any CCTV footage. At the start of the trial, the judge determined that the absence of CCTV footage rendered a fair trial impossible and stayed the proceedings as an abuse of process.
Held
Although there was evidence in support of the prosecution’s case, which came primarily from the complainant herself, there was plainly potential evidence to contrary effect that required investigation. What was critical was not the strength of the remaining prosecution evidence, but the prejudice suffered by the respondent in being denied the means of challenging that evidence. Given that the respondent’s first response to the allegation was to urge the police to obtain the CCTV footage, and their agreement that they would, their failure to do so was a serious dereliction of duty. The CCTV footage was not evidence of marginal or secondary value to the police investigation. It was central to the case, which turned on credibility. The prejudice suffered by the respondent in being denied the means of challenging the complainant’s evidence was serious. The judge had, therefore, been entitled to conclude that this was one of those rare cases where it was right to stay the proceedings because the respondent’s trial would not be fair.
R. v OFM
Court of Appeal (Criminal Division)
15 May 2026
[2026] EWCA Crim 599, CLW/26/22/2
Summary: For the purposes of a prosecution under the Road Traffic Act 1988 s.1 and s.3A(1)(ba) arising from the death of a six-month-old baby after her stroller was struck by a car, the Court of Appeal held that switching on the ignition and starting a car’s engine while standing outside the vehicle, without intending it to move, could amount to ‘driving’ under the Act. Whether such actions amounted to driving was a matter for the jury to decide on the facts of the case.
In a case concerning the death of a six-month-old child (C), the prosecution appealed against the trial judge’s ruling that there was no case to answer.
C was struck by a car that had moved forward after the respondent (X) started its engine. X had unlocked the vehicle, opened the driver’s door and leaned in while standing outside. He turned the ignition key intending only to warm the vehicle, not to drive it or cause it to move. However, the vehicle had been left in gear with the handbrake not fully applied. As a result, when the engine started, the vehicle unexpectedly moved forward and collided with C’s stroller.
CCTV showed X moving with the vehicle and possibly being carried or dragged along, though his lower limbs remained outside the car throughout. Expert evidence confirmed that it would have been difficult for him to reach the brake or handbrake.
X, who had consumed cocaine before the incident, was charged with causing death by dangerous driving and causing death by careless driving when under the influence of drink or drugs. The trial judge upheld a submission of no case to answer on both counts, holding that there was insufficient evidence that X was ‘driving’ the vehicle at the material time.
The prosecution submitted that the question of whether X was ‘driving’ was a matter of fact and degree which should have been for the jury to assess.
Held
Appeal allowed.
R v MacDonagh (Brian) [1974] Q.B. 448, [1974] 2 WLUK 79 determined that a person could not be ‘driving’ unless they were, in a substantial sense, controlling the movement and direction of the car. In addition, the conduct must also fall within the ordinary meaning of ‘driving’. However, the MacDonagh definition was not exhaustive, and the fact that the car was stationary when the respondent turned the ignition key did not automatically mean he was not ‘driving’.
A careful driver starting a manual car would normally check the handbrake, gear, clutch and other controls before turning the key. That was classically, at least in most cases, the point at which ‘driving’ would start, even if the driver did not intend that the car should move.
The references in MacDonagh to “controlling the movement of the car” should not be read as requiring effective control at every moment before a person could be regarded as the driver. If that were so, a careless driver would cease to be the driver the moment they lost control of the vehicle. The question for the jury was whether it was sure that in switching on the ignition and starting the engine of the car, the respondent did an act which amounted to ‘driving it’. In most cases the answer would be affirmative. The particular facts of the instant case might lead the jury to conclude otherwise.
The prosecution were right to say that it was a matter for the jury. Accordingly, the proceedings should be resumed before the Crown Court (see paras 26-38 of judgment).
