R v Giscombe 2026
In August 2021, the complainants, two 15-year-old friends (C1 and C2) were out celebrating a birthday in Nottingham and had been drinking. The complainants met G and his brother, who bought them alcohol, and went to G's home where they consumed more alcohol. The girls left in a taxi after midnight. Police were called and medical examinations conducted. C1 showed evidence of recent vaginal penetration.
C1 stated in her ABE interview that G raped her and bit her, and that she saw him on top of C2 whom she believed was asleep. C2 stated in her ABE interview that she felt dizzy, went to lie down, fell asleep, and awoke to find her clothes removed and "the driver of the car" having sex with her. The taxi driver reported one girl crying, saying she felt dirty and had been raped. A neighbour confirmed one girl was very upset, saying she had been raped and was bleeding. Forensic evidence showed G's semen in swabs from C2's vagina and DNA consistent with G on C1's breast and in low vaginal swabs. C2 had a blood alcohol equivalent reading of 205 mg/dl; C1 had 59 mg/dl.
The defence case was that G did not engage in sexual activity with C1 and had consensual sex with C2.
At trial, C2's ABE interview was played without her being sworn. She was cross-examined the following day, still unsworn. The error was noticed that evening by defence counsel. The Recorder rejected the defence application to discharge the jury and permitted C2 to be recalled, sworn, and asked to confirm her previous evidence, with further cross-examination. G was convicted and applied for leave to appeal against conviction on the basis that C2's unsworn evidence rendered the conviction unsafe.
G submitted that since C2 was over 14 and competent to swear on oath, she was not entitled to give unsworn evidence. Had it been suggested she give unsworn evidence prior to starting, the Recorder would not have agreed. Section 56(5) has no application as it only applies where the court has ordered under section 55(2) that a witness may give evidence without being sworn, which did not occur here; instead a mistake was made. The oath and affirmation are forward looking, not retrospective, and it would be inappropriate to ask C2 to take the oath after evidence had been given. Having exposed flaws in C2's evidence under cross-examination, recalling her would lead to "a multitude of incorrect conclusions by the jury that each of the inconsistencies exposed under cross-examination were now being neutralised by either the Recorder or prosecuting counsel". G was forced into an unfavourable position where emphasis was lost and the jury would believe "the defence were now scrabbling around, with C2 giving answers furthermore which were more resolute and definite than they had been the first time around".
On reflection before the court, the applicant did not press the submission concerning the applicability of section 56(5).
Held
Appeal dismissed.
The court of appeal granted leave to appeal against conviction but dismissed the appeal.
Section 56(5) is not restricted to cases where the court has decided pursuant to section 55(2) that a witness should give unsworn evidence, as nowhere in section 56(5) is this stated. This section refers to "a person falling within section 55(2)", meaning a person who "should accordingly have given his evidence on oath", not limited to cases where section 55(2) has been invoked. It also reflects a change from the position before the 1999 Act came into force, superseding decisions in earlier case law (see note (ii)) where failures to administer the oath rendered convictions unsafe. Applying section 56(5), the court must consider the case in the round rather than focus exclusively on the fact a witness gave unsworn evidence when they ought not to have done so.
C2's evidence on the third day after being sworn was indeed sworn evidence, so not all of C2's evidence was unsworn. There was ample corroborative evidence including C1's evidence regarding both counts, forensic evidence of the applicant's semen and DNA, evidence of immediate distress and complaint of rape, and the applicant's failure to give evidence permitting adverse inferences. The jury would have understood why defence counsel revisited matters following the slip-up regarding the oath, for which counsel bore no responsibility. If C2 became more resolute the second time, the jury might have questioned this and viewed her evidence with circumspection.
The Recorder was well-placed to assess whether C2 took her responsibilities seriously when first cross-examined and concluded there were no reasonable grounds for concluding her evidence would have been different if sworn beforehand. In closing, defence counsel himself relied heavily on inconsistencies in C2's evidence, including her unsworn evidence, inviting the jury to take that into account.
Reproduced with permission of Reed Elsevier (UK) Limited, trading as LexisNexis.
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