Upper Tribunal Administrative Appeals Chamber

[2025] UKUT 333 (AAC)

Fecha: 26-Jun-2022

The Hearing before the Upper Tribunal

The Hearing before the Upper Tribunal

23.

The Upper Tribunal had before it all of the evidence considered by the DBS which included statements from police officers who spoke to X when she first made a complaint of rape, a statement from her GP about the disclosure, and GE’s interview by police. In addition, the Upper Tribunal had two documents from the criminal trial: the learned judge’s summing up of the evidence to the jury, and the transcript of X’s account to the police, recorded on 9 January 2018.

24.

The hearing of the appeal took place at the Upper Tribunal in Manchester on 26 September 2025. GE represented himself at the hearing. He took the oath, and gave mixed evidence and submissions, and made himself available to be cross-examined by Mr Fulbrook for the DBS.

25.

GE was concerned that he did not have legal representation. He was reassured that many appellants come before the Upper Tribunal without representation. He was able to give a full account and explain his case. GE was calm and polite throughout. GE had printed off some, but not all of the papers in the case. When he did not have a page of the papers, the relevant part of the evidence was read to him before he was asked any questions.

26.

GE was assisted by an Igbo interpreter. GE sometimes spoke in English, and sometimes spoke through the interpreter. At points, when GE answered in English and we were concerned that GE may not have understood a question, or may not have expressed himself accurately, we asked for the question to be repeated and interpreted, and for GE’s answer to be interpreted.

27.

GE’s evidence included the following:

He repeatedly said that he had never had sex with X without her consent. He was clear that X had the right to say no, and told us that he would have respected that.

He directed us to the police interview, saying that it was true, but also saying that ‘not everything they wrote was said by me’.

He showed us photographs of himself, X and X’s step-daughter, which he said had been taken in 2016 and 2017, which he said showed that they were in a relationship then. GE’s description of the photographs is part of the evidence, but the photographs are not part of the evidence.

He told us that he had a letter which confirmed that HIV can reduce to a level where it is not transmissible. Mr Fulbrook for DBS confirmed that was not in dispute. The letter is not part of the evidence.

GE made a number of suggestions as to why X might have made up the allegations against him. They included that he had told the family of the person who X had allegedly started a relationship with to leave her alone, and that X wanted him to leave the house.

GE emphasised that he had been found not guilty by a criminal court.

GE said that he had started seeing X in 2013 and they were married in 2014. He said that she knew about his HIV status before they went for IVF treatment. He was reminded that in his police interview he had said that he found out about HIV when he went for IVF treatment. He was asked “Do you accept that what you say now is different to what you said in interview” and answered “I told the police that I had HIV. What is written down here is not right”.

GE said that he had been told when diagnosed that his HIV was not detectable or transmissible. He had then been told in 2016 that it had become detectable (and by implication transmissible). It was suggested to him that X had said she wanted to end the marriage at that point, but he did not agree.

GE said that X had not taken various opportunities to make or repeat allegations of rape which showed she was lying: she had not told a friend who stayed with them for four months, and did not mention it in the application for divorce.

GE agreed that in July 2017 X went on holiday to Spain, and when she came back she said she wanted to end the marriage. He told us about difficulties making arrangements for X’s daughter to be looked after while X was away, and how he was worried because X would not tell him where she was going and was erratic.

GE said he went to Nigeria when X was in Spain, to perform traditional marriage rites. He was reminded that in his interview he said he travelled to Nigeria because someone was dying. He said that was not correct.

GE said that when his wife came back from Spain she asked him to move out. He asked for some time. The tenancy was in her name but he was contributing to the rent.

GE accepted that if we found that he had raped his wife that it would be right for him to be barred from working with vulnerable adults.

28.

GE was asked about when he had last had sex with X. GE told us “Sex did not happen after she came back from Spain” [which was in July 2017] and explained that he would not have had sex with her after that time because he suspected that she had been unfaithful. Mr Fulbrook reminded GE that the transcript of his police interview records :

“Q So since you came back from Spain have you had a sexual relationship with [X]?
A (inaudible) a couple of times and everybody was she is happy well im happy…”

and GE went on to say in that interview that they had last had sex in the August Bank holiday. When GE was asked about the discrepancy, GE said that he had not told police that they had sex after X returned from Spain and the interview transcript is wrong.

29.

GE was asked about X’s allegation that he raped her in the kitchen. He told us “there was no sex in the kitchen” and explained that it was a very small kitchen and he had never, and could not have, had sex in there. Mr Fulbrook reminded GE that the police interview records:

“Q did you have sexual intercourse with her in the kitchen
A yeah yeah
Q and did she consent
A more than consent”

Again GE said that the transcript must be wrong and he had not said that to police.

In relation to the same allegation, Mr Fulbrook also asked GE about part of the trial judge’s summing up of the evidence at the criminal trial. The summing up includes the following description of part of GE’s evidence to the jury:

“But then he [GE] said
‘I have had sex in the kitchen. She was cooking. She asked me to cut meat and put some in her mouth. Then she put some in my mouth. I took some rubbish out and she pushed herself back on to me. She said although she wasn't happy with me, she said that that day –’
They would -- it just seemed to be they would have sex. That was the only time they had sex in the kitchen.”

GE told us that he could not remember saying anything like that. GE was asked whether he was saying that the judge’s summary was wrong, and did not answer clearly. He repeated “I cannot remember saying that”.

30.

Mr Fulbrook for the DBS amplified his written submissions, focussing on the following points:

GE had been inconsistent about some very significant points and was not credible

Apparent inconsistencies in X’s account did not show that she was not credible; they are explicable when looking at her fuller account in police interview.

GE’s suggestions for why X might have made up the allegation do not hold water for various reasons. The best explanation for her evidence is that she alleged rape because she genuinely believed what had happened to her.

X’s temporary withdrawal of support for the prosecution case does not show that she is not credible. She explained that it was because she was concerned that she would be disapproved of for making such an allegation. In any event, she reverted to supporting the prosecution, showing how strongly she felt about it.

31.

Although some of the evidence before us was about the chronology of GE’s HIV diagnosis and his wife’s awareness of the condition, Mr Fulbrook realistically conceded that the issue of who knew what about HIV and when was not a material issue.