The decision not to charge two police officers with a serious sex assault on a male colleague was made because it would have been too difficult to prove non-consent, the Supreme Court heard yesterday.

Ben Adamson, who represented Larry Mussenden, the Director of Public Prosecutions, at a judicial review said that his client was not confident a jury would be convinced that the alleged victim did not give consent, or that the two officers acted without consent.

Mr Adamson added: “Such evidence may strike a jury as more consistent with the interested parties’ case or version of events – namely consensual group sex – than with the applicant’s case of an innocent abroad who had gone there for a game.”

The court heard earlier that the three police officers – who cannot be identified for legal reasons – had played strip poker at one of their homes and engaged in sexual activity on the day of the incident.

Mark Pettingill, who represented the alleged victim, said that the activity was at first consensual, but that his client alleged that the two other officers did not stop when he said several times he did not want to go further.

He said the Deputy Director of Public Prosecutions approved serious sexual assault charges against the alleged attackers and the complainant was told that the case would go to court.

But the alleged victim was later told by police officers involved in the investigation that Mr Mussenden had withdrawn the charges.

Mr Pettingill said that there was sufficient evidence that his client did not give consent and that a jury that was given proper direction by a judge could convict the two men given the earlier sexual activity.

But Mr Adamson insisted that the problem was not if the alleged incident was non-consensual or a serious sex assault, but if a jury could be persuaded beyond reasonable doubt.

He said there were many instances in the police report where the alleged victim did not appear distressed before or after the alleged incident and even accepted a ride home from one of the officers and “entertained” him weeks later.

Mr Adamson added: “There is an inconsistency between what he told his very close friends and what he’s telling the police.

“It is not irrational for an experienced prosecutor to wonder what impact that would have on a jury.

“It may be that a bullish prosecutor would give it a go anyway, but it is not crazy – it does not then defy logic – for a prosecutor to be concerned and believe that these issues may prove, in the drama of a jury trial, to give a jury pause.”

Charles Richardson, who represented one of the police officers, said that it would have been an “uphill battle” for Mr Mussenden to prove that the alleged victim did not give consent.

He said that the alleged victim “would have been vigorously cross-examined on the issue of consent, he would have been vigorously cross-examined on his behaviour and the things he did and didn’t do and then he would have been re-examined”.

Mr Richardson added: “The evidence would have been that for some very short duration of time after a range of consensual activity a particular act was attempted – not completed – and ceased and desisted with almost immediately.

“In those circumstances, can it even be said that a sexual assault took place? Because the pivotal portion of it would have been consent or the belief in consent.

“A Supreme Court judge would have been, I say, very tempted to dismiss it.”

Mr Richardson said that Mr Mussenden would also have had to prove to the jury that the two men acted in the knowledge that the alleged victim had not given his consent.

He added: “Even if he was not in fact consenting, if the circumstances are which that a jury could conclude that he may have given the impression that he was consenting they would have to be found not guilty – that’s the proper direction.”

Chief Justice Narinder Hargun adjourned the hearing and deferred his decision to a later date.