Rape trial abandoned after judge 'fell asleep'

A rape trial had to be abandoned yesterday after a defence barrister accused the judge of falling asleep during his closing arguments. The case will be retried at an estimated cost to the taxpayer of £50,000.

Judge Gabriel Hutton was said to have nodded off twice at Gloucester Crown Court when the defence counsel, Chris Austin, was making his final speech in the trial of a 21-year-old man accused of rape. Mr Austin applied for the jury to be discharged and a retrial ordered on the ground that the judge could not give a proper summing up of the case.

Judge Hutton told the barrister that he was not aware of having fallen asleep on Friday afternoon but said that since he had given that impression he was prepared to agree to a retrial.

The judge told the jurors: "There is an application by the defence to bring this case to an end, I am afraid, and to discharge you from bringing in a verdict.

"Apparently, I am thought to have nodded off during defence counsel's final address to you. I am not aware that I did. I think I was well aware of what he was saying to you. But if in fact I gave the impression of not listening to what he said it would be unfair to the defendant to allow the case to go on."

The trial had reached its fourth day and the jury was due to be sent out to consider its verdict. Lee Woodward had denied raping an 18-year-old woman at Sharpness docks, in Gloucestershire, between midnight on 1 August and 7am on 2 August this year.

After agreeing to the defence's application, Judge Hutton said: "It is a waste of time and money but justice must be seen to be done and therefore that has got to be done."

A spokesman for the Lord Chancellor's Department said: "The Lord Chancellor [Lord Irvine of Lairg] was very concerned to have heard of this reported incident and has asked his officials to prepare a report to include Judge Hutton's comments about what happened."

Judge Hutton, 69, of Chestal, Gloucestershire, has been a circuit judge since 1978 and a resident judge at Gloucester Crown Court since 1990.

In September 1997, MPs and medical experts described as "inhumane" one of his decisions that meant a pregnant 17-year-old shoplifter would be separated from her baby while in prison. Judge Hutton rejected the girl's appeal against a five-month sentence imposed by a youth court for stealing four shirts and told her the separation from the baby would be a "real punishment".

At the time, Tess Kingham, then a Labour MP and a mother herself, said it was "inhumane" to tell the girl, who had eight previous convictions for shoplifting, to hand the child to care workers after giving birth.

But in January 1995, Judge Hutton spared a woman who admitted fraudulently obtaining £21,000 in income support a prison term because she had young children. Heather Measures, a beauty consultant from Andoversford, near Cheltenham, was instead handed a 21-month jail sentence suspended for two years.

A spokesman for the Lord Chancellor's Department said no date had been set for Lee Woodward's retrial.