A woman is suing the Crown Prosecution Service (CPS) after her rape case was dropped because of claims that it was possible she had an episode of a rare sleeping condition. The case of Jade McCrossen-Nethercott featured on BBC Newsnight earlier this month which identified 60 cases last year which the CPS admitted wrongly dropping.

The defence had argued that McCrossen-Nethercott had “Sexsomnia”, a medically recognised sleep disorder where people diagnosed with the condition can perform sexual acts in their sleep. Two sleep experts had concluded that it was possible that she had an isolated attack, which may have caused her to engage in sexual activity when she was asleep.

McCrossen-Nethercott challenged the CPS’s decision to drop her case by way of a victim’s right to review process (VRR Scheme). When a victim wins a review against proceedings in the VRR Scheme process, it does not have the same strength as winning an appeal to overturn the decision. Under double jeopardy law, cases cannot be reopened, even if the review finds that the case should have gone to trial. This is what happened with McCrossen-Nethercott’s case, where after an independent chief crown prosecutor found her case should have been taken to trial, the only reprieve she received was a letter of apology on behalf of the CPS.

Determined to prove that the CPS was wrong to drop her case, she requested her case evidence and was shocked to discover the weight the CPS lawyers gave to the sleep experts’ statements. The experts had concluded that she had a ‘strong possibility’ of an episode of Sexsomnia. However, this was not definitive evidence that an episode of Sexsomnia had actually happened, as Barrister Allison Summers KC commented. According to the CPS expert evidence guidance, Sexsomnia and other sleepwalking defences should always be ‘robustly challenged’ in court.

The immediate past victims commissioner Vera Baird KC highlighted in 2011 the ‘travesty’ of at least four cases where defendants were acquitted relying on this defence.