A Defendant at Liverpool Crown Court represented by Gary Lesin-Davis of EAD Solicitors LLP and Adam Gersch of Argent Chambers and was found not guilty by direction of the Judge of an offence of assault by penetration contrary to the Sexual Offences Act 2003.

The Complainant and the Defendant who were at the time platonic friends fell asleep fully clothed in bed. The complainant awoke in the middle of the night to discover a sexual act being performed on her.

When a shocked Complainant confronted the Defendant he claimed that he had no recollection of the incident. The Complainant went to the Police and the Defendant was arrested. In interview, the Defendant found it difficult to explain what had arisen that night nor was he able to contradict what the Complainant had said had occurred.

Investigation of his history by his lawyers suggested that he suffered from a sleep disorder. An expert instructed by the Defence found after conducting extensive sleep tests upon the Defendant that there was evidence that he suffered from a parasomnia. This abnormality causes a person to act in involuntary ways during sleep. This expert diagnosis was corroborated by a second expert who considered that the Defendant may well have committed the act while asleep and in a state of arousal disorder automatism of the sexomnia variety. The expert concluded that there were a number of specific features in the case suggestive of a sexomnia episode.

When the CPS received this expert evidence they reconsidered whether in the light of all of the material there was a reasonable prospect of conviction and came to the conclusion that the proper course was to offer no evidence.