‘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.”
UK
Family of man who committed murder after escaping from mental health unit say they were ‘failed’ by NHS trust
The family of a man who committed murder during an escape from a secure mental health unit have told Sky News they were “failed” by the trust that was meant to be caring for him.
Joshua Carroll is currently waiting to be sentenced for the murder of Headley Thomas, known as Barry, after beating him to death in a park in Trafford, Manchester, in September 2022.
At the time of the attack, Joshua was in the care of Greater Manchester Mental Health Trust (GMMH). He was being treated as an inpatient at Park House, a unit which has now closed down.
Joshua’s mum and sister say he escaped from the unit 21 times – and they repeatedly complained to the trust and asked for help.
Headley Thomas, who was known as Barry
Leanne Carroll, Joshua’s sister, told Sky News: “The night it happened, Joshua had come to my house. And it was just a normal ‘oh Joshua has escaped from hospital again’. Nothing appeared any different.”
She says they didn’t find out about what had happened until Joshua was arrested weeks later – and “everything fell apart from there”.
Julie and Leanne Carroll
“My heart broke,” said Joshua’s mum, Julie Carroll. “It’s just a horrible, horrible situation.”
Joshua had been diagnosed with conditions including schizoaffective disorder, and had been in and out of inpatient care for around 15 years, his family said.
They showed me more than 20 pages of complaints and responses from GMMH about his repeated escapes, dating back eight years before the murder.
After Joshua’s fourth escape from Park House, his family asked for him to be moved to another unit, saying they were concerned about security.
This didn’t happen, with the trust citing capacity issues. His family complained once again about his escapes just five weeks before the murder, in August 2022.
“We are very, very angry and disappointed,” said Julie. “You think if your child is in hospital, and they are very poorly, that they are going to be looked after – they will be safe and they will be secure. But that wasn’t the case for Josh.”
Julie Carroll says her “heart broke” after her son’s crime came to light
Although Joshua was convicted of murder, Leanne says his family hold GMMH partly responsible.
“If you had done your job properly – none of this would have happened,” she said. “Two families wouldn’t have been destroyed and so many hearts wouldn’t have been broken.”
Since 2022, GMMH has been served with several Section 29A warning notices by the Care Quality Commission. These are issued when the commission decides a service needs to make significant improvements, and there is a risk of harm.
In the case of GMMH, their concerns included “ward security systems not consistently keeping people safe”.
Dr John Mulligan is a clinical psychologist for GMMH, working in the community for the early intervention in psychosis service, and a representative for the union Unite.
Dr John Mulligan
He and his colleagues have been going on strike repeatedly across the past seven months, saying they just don’t have the staffing levels they need to keep people safe.
“Thankfully, violent incidents among our service users are quite rare, they are much more likely to be the victims of violence and aggression,” he said. “But serious incidents are happening regularly. Far too regularly.
“It’s very upsetting for staff and for patients and families.”
Joshua Carroll . Pic: Greater Manchester Police
Salli Midgley, chief nurse at the Greater Manchester Mental Health NHS Foundation Trust said: “On behalf of GMMH, we express our heartfelt condolences to Headley Thomas’s loved ones at this very sad time.
“Our thoughts and sympathies remain with everyone who has been affected by this most devastating incident. We are deeply sorry that it happened while Joshua Carroll was under our care.
“Under the trust’s new leadership, we have been working closely with NHS England, our commissioners and the CQC to create better, safer and well-led services for all.”
The Carroll family asked for Joshua to be moved to a different unit after his escapes
She continued: “A huge amount of progress has already been made but we know we still have a lot to do to improve our services.
“As part of this work, we are currently carrying out an in-depth investigation into the care and treatment provided to Mr Carroll, and the circumstances leading to Mr Thomas’ death, the findings of which will be shared with NHS England.
“We are unable to comment further on this case whilst the investigation is ongoing.”
Barry Thomas’s family told Sky News mental health is a very serious issue – but they believe Joshua Carroll tried to “play down his actions”.
They said: “Let’s all remember that a life was taken. Our brother, father, and uncle. The evidence the police gathered was in plain sight for all to see.
“We, the family, would like to thank all the police involved for the work they have done, in bringing justice for Barry.”
UK
Hashem Abedi: Manchester bomb plotter moved back to Belmarsh prison after guards attacked in jail in Durham
The Manchester Arena bomb plotter Hashem Abedi has been moved back to Belmarsh prison after an alleged attack at HMP Frankland on Saturday.
Three prison officers at the high-security jail in County Durham were attacked with cooking oil before being stabbed with an improvised weapon.
Abedi has been transferred to Belmarsh prison in southeast London where he’d previously been found guilty of attacking a prison officer in 2020, along with two other convicted terrorists.
Belmarsh is considered the most high-security prison in the UK.
Abedi has been moved to the only available highly-controlled ‘suite’ cell in the country – a standalone self-contained unit monitored by a minimum of five people at any one time, and a prison dog.
There are only four such cells across England and Wales.
Abedi was convicted of assisting the Manchester terror plot, in which his brother Salman Abedi killed himself and 22 other people by detonating a bomb in a rucksack at an Ariana Grande concert in May 2017.
Hashem Abedi was sentenced in 2020 to at least 55 years in prison after being found guilty of 22 counts of murder over the atrocity.
Salman Abedi before the concert attack. File pic: PA
Meanwhile, the government has said it will commission a review into the incident at HMP Frankland, after suspending access to cooking facilities in separation units, which is where the alleged attack took place.
Sky News understands the Prison Officers Association, after visiting staff who were on duty at the category A jail this week, have written to Prime Minister Sir Keir Starmer calling for urgent action in order to protect prison staff in the high-security estate.
The union wants to see prison officers working there given stab-proof vests, access to tasers in certain situations, and not just a suspension of self cooking facilities in separation units but a full ban.
Separation units house the country’s most dangerous and violent criminals.
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Belmarsh prison in southeast London. File pic: PA
There have been a series of violent attacks across prisons in England and Wales, only days apart.
On Sunday, convicted killer John Mansfield was found dead at a category A prison, HMP Whitemoor, in Cambridgeshire. Police said they arrested a 44-year-old man on suspicion of murder.
Sky News also understands there was an incident on Tuesday lunchtime at HMP Lowdham Grange in Nottinghamshire.
A specialist ‘response group’ consisting of officers from outside the prison were deployed to bring the situation under control, along with a ‘hostage’ situation, while prisoners climbed on the roof and netting. The situation was brought under control within an hour.
Prisons minister Lord Timpson said it was “another sign of the problems we are facing in our prison with prisons that are overcrowded and violent”.
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