The lawyer for Alex Hepburn, the former Worcestershire cricketer who was last year convicted of rape, has argued that WhatsApp messages boasting of a sexual conquest “game” should not have been submitted as evidence in his trial.
Hepburn, 24, was jailed for five years in April 2019, after being found guilty of oral rape following a retrial. The court heard how he had attacked a sleeping woman in the bed of his former team-mate, Joe Clarke, with whom the victim had already had consensual sex.
The prosecution put it to the jury that Hepburn had become “fired up” by the challenge of sleeping with more women than his team-mates, and had carried out the attack at his flat in Worcester on April 1, 2017.
However, the same jury also cleared Hepburn of a second count of rape, and at London’s Court of Appeal, David Emanuel QC argued that the two verdicts were “inconsistent”.
“The idea propagated by the Crown, that he was so desperate to win the game this year that he would ignore true consent if he had to, is just not supported by anything in the messages or by the fact of the game itself.
“I accept it would be different if there was talk of sex against will, or trickery to gain a point, or taking a chance, but there’s nothing like that in the messages.
“They are too far removed as to be able to be to do with the facts of the alleged offence.”
Hepburn’s appeal is being heard by a bench of three senior judges, including the Lord Chief Justice Lord Burnett, who said that the court would give its ruling at a later date.
Miranda Moore QC, representing the Crown Prosecution Service, argued that the WhatsApp messages were not merely an example of “boyish banter”, but a “deep-seated and long-running game between a number of professional sportsmen”.
“It wasn’t, as suggested, motivation on the part of the prosecution to generate disgust,” Ms Moore added. “The motivation on the part of the prosecution was to shine a light on the appellant’s state of mind.”
At his sentencing at Hereford Crown Court in April last year, Judge Jim Tindal described the game as “pathetic”.
“You probably thought it was laddish behaviour at the time. In truth it was foul sexism,” he said.