‘It sets a scary precedent’: Woman suing CPS after it dropped her rape case over claims she had sexsomnia
Thirteen days before the man accused of raping her was due to stand trial, Jade McCrossen-Nethercott was told her case was being dropped.
After a phone call from the police the day before, the then 24-year-old met with the Crown Prosecution Service (CPS).
They told her that because she was asleep when the incident happened, two sleep experts employed by the defence team had claimed she could have suffered a random episode of ‘sexsomnia’ – and therefore the case was no longer viable.
Sexsomnia is a rare sleep condition that causes people to engage in sexual activity while unconscious.
In her police statement after the incident in 2017 she had briefly mentioned being a deep sleeper and sleepwalking a couple of times when she was a teenager – but in the three years since it had never been brought up again.
“It was the first I’d ever heard of it,” she told Sky News.
“I was trying to understand. It didn’t make any sense to me. It was baffling. I was completely shellshocked.”
Pic: BBC
Ms McCrossen-Nethercott had gone back to a friend’s house for a drink after a night out in south London when she woke up feeling as though she had been sexually assaulted.
She had fallen asleep on the sofa at around 2am and awoke roughly three hours later naked from the waist down and with her necklace broken on the floor.
A man, whose semen was later found on her vaginal swabs, was sat next to her on the sofa.
Asking him what had happened, he replied: “I thought you were awake.”
Ms McCrossen-Nethercott reported it to the police, underwent forensic testing, and the man was charged with rape.
He had offered no comment to police, pleaded not guilty at magistrates court and was due to appear at crown court in just under two weeks when the CPS discontinued the case.
“I made a few blasé comments to the police about sleepwalking when I was younger.
“They were clutching at straws, it was them panicking,” she said.
Sleep experts had never met or spoken to her
With the right to appeal the CPS’s decision she requested all the case documents, including those linked to the two sleep experts.
“Those two experts had never spoken to me on the phone – let alone met me in person,” Ms McCrossen-Nethercott said.
“Their decision was based on a 15-question questionnaire – and the defendant’s statement.
“It was so loosely drawn together – this ‘argument’ that I had sexsomnia.”
She then commissioned her own sleep expert, from the London Sleep Centre, to provide counterevidence.
He had never come across an alleged victim having the condition. In the UK only people accused of rape or sexual assault have alleged to have had it – using it as a defence.
The expert also explained it usually occurs in men – who have had a history of it before.
Pic: BBC
Sleep tests commissioned by him showed Ms McCrossen-Nethercott had mild sleep apnoea – when breathing briefly stops and starts again during sleep.
Because this has been identified as one of the triggers of sexsomnia, he said he couldn’t rule out an isolated episode.
“Sleep apnoea is so common a lot of people don’t even know they have it,” she said.
Determined to prove the CPS wrong, she turned to a lawyer instead.
According to the law in England and Wales, a person cannot consent to sex if they are asleep.
But someone cannot be found guilty of raping someone if they can prove they had “reasonable belief” the other person consented.
The lawyer, who had defended men in cases involving sexsomnia, claimed sleep and medical experts are never able to definitively prove someone has the disorder.
This means it could be used to convince a jury someone is not guilty.
Finally she submitted her appeal.
CPS review ruled decision was wrong
A retired crown prosecutor not involved in the original case concluded it should have gone to trial.
He said the sleep experts and the defendant’s claims of sexsomnia should have been cross-examined.
Ultimately he believed it was “more likely than not” the defendant would have been convicted by a jury.
But despite his verdict and an apology from the CPS, the case cannot be reopened, as the man was formally acquitted and there are laws against double jeopardy.
Ms McCrossen-Nethercott told Sky News that with just 1.3% of rape cases resulting in a prosecution in England and Wales, she did not expect the case to reach trial.
But when she was told there would be one, she says: “I was hopeful and optimistic.
“I felt confident in how I reported what had happened.”
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With the help of the Centre for Women’s Justice, she has now submitted a letter of claim to sue the CPS on human rights grounds.
“The CPS let me down and they’re letting every other woman and girl down to,” she said.
“I did as much as I could and yet nothing can be done.
“It’s really hard to heal from something that makes no sense.”
After further communication with the CPS last year, the now 30-year-old was unable to work for six months due to mental ill-heath.
“Last year I had really bad dark times. But I’m in a better place now, with the support of my friends, family and my partner.”
A CPS spokesperson said in a statement: “We have apologised unreservedly to the victim in this case. The expert evidence and defendant’s account should have been challenged and put before a jury to decide.
“We are committed to improving every aspect of how life-changing crimes like rape are dealt with and are working closely with the police to transform how they are handled.
“We remain positive about the progress that is being made but recognise there is still a long way to go so more victims come forward and report with confidence.”
Criminals who refuse to attend their sentencing hearings will face further punishment under a new law.
The government is introducing the Victims and Courts Bill to parliament today, which will include more jail time or loss of privileges in prison in England and Wales for criminals who refuse to attend court for sentencing.
Several high-profile offenders have refused to face victims’ families, sparking a public outcry and calls for a change in the law.
The families of murdered primary school teacher Sabina Nessa, law graduate Zara Aleena and mother-of-three Jan Mustafa have all campaigned for the change after their killers were absent from sentencing hearings.
Ms Nessa’s sister, Jebina Islam, Ms Aleena’s aunt, Farah Naz, and Ms Mustafa’s cousin, Ayse Hussein, said: “This move holds offenders to account.
“It sends a clear and necessary message: the justice system is not something you should be able to opt out of.
“It is not about punishment through force – but about ensuring that perpetrators cannot remove themselves from the consequences of their actions.”
Teacher Sabina Nessa was killed by Koci Selamaj in 2021 after he drove to London to assault a stranger
They said the legislation is a “step in the right direction” and the proposed punishments indicate it is “being taken seriously”.
The trio added: “This change supports victims and society alike. It shows justice being done.
“It gives families a moment of recognition and a form of reparation. It is a moment of reckoning for the convicted.”
Under the new legislation, judges will be able to sentence offenders for up to two more years in prison for avoiding justice.
Those already facing lengthy imprisonment or whole life orders could have a range of prison punishments, such as confinement to their cells and being stripped of privileges, such as extra gym time.
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Former Tory prime minister Rishi Sunak had pledged to change the law after meeting the mother of murdered nine-year-old Olivia Pratt-Korbel, and Sir Keir Starmer promised to enact it.
Olivia Pratt-Korbel was killed by Thomas Cashman, who refused to attend his sentencing hearing in 2023
Thomas Cashman, the gunman who killed Olivia as he chased a drug dealer who had run into her Liverpool home, did not appear in court to hear his life sentence in April 2023.
Earlier this year, triple crossbow and knife killer Kyle Clifford refused to attend his sentencing when he received a whole life order.
Southport child murderer Axel Rudakubana was removed from his sentencing hearing for repeatedly shouting in January.
Teacher Sabina Nessa was killed by Koci Selamaj in 2021 after he drove to London to assault a stranger
Zara Aleena was killed by Jordan McSweeney, who should have been recalled to prison at the time. Pic: PA
Justice minister Alex Davies-Jones said: “I would like to thank the remarkable families of Olivia Pratt-Korbel, Jan Mustafa, Sabina Nessa and Zara Aleena and countless others who have campaigned tirelessly for offenders to have to face the reality of their crimes by attending their sentencing.
“Justice isn’t optional – we’ll make sure criminals face their victims.”
The bill also says it will restrict parental responsibility from child sex offenders who commit serious crimes against their own children.
The powers of the Victims’ Commissioner will also be strengthened to require them to produce an independent report on whether agencies are meeting their statutory duty over the Victim’s Code to hold the government to account.
Child protection charity the NSPCC backed the move, saying they hope it will improve how young victims and survivors are treated, but said it was “not a complete solution”.
Eighteen-year-olds will be allowed to drive trains due to concerns over labour shortages, the Department for Transport (DfT) has announced.
The current minimum age for someone wanting a career on the railways is 20.
But with 87% of night-before cancellations made because a driver is unavailable, the government has decided to lower the age of entry by a couple of years.
Several operators rely on drivers to work extra shifts voluntarily.
At present, the average age of a British train driver is 48, while 30% are due to reach retirement age by 2029.
A consultation on lowering the minimum age for drivers, carried out last year by the Conservative government, received “overwhelming support from across the industry”, the DfT said.
Other nations which have lowered the age for train drivers are France, Germany, the Netherlands and Switzerland, officials added.
Transport for London opened driver apprenticeships on the Underground to 18-year-olds in 2007.
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Training to drive mainline trains generally takes between one and two years.
Assessment and qualification standards will be unchanged.
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Industry body the Rail Safety and Standards Board said its research had shown 18-year-olds are “capable of safely becoming train drivers”.
New job and apprenticeship opportunities could be available as early as December, the DfT said.
Heidi Alexander, the transport secretary, said the government was “future-proofing” the railways against “delays and cancellations caused by a shortage of drivers”.
Mick Whelan, general secretary of train drivers’ union Aslef, said: “At the moment, young people who want to become train drivers leave school or college at 18, get other jobs, and we miss out as an industry as they don’t wait around until they turn 20 to find a career.”
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