| CRIME — Sexual offences — Rape — Consent — Complainant consuming substantial quantity of alcohol — Whether capable of consenting to sexual intercourse — Criminal Justice Act 2003, ss 1, 74
Regina v Bree [2007] EWCA Crim 256
CA: Sir Igor Judge P, Hallett LJ and Gloster J: 26 March 2007
Where a complainant had voluntarily consumed even substantial quantities of alcohol, but nevertheless remained capable of choosing whether or not to have intercourse, and in drink agreed to do so, that would not be rape; but if through drink the complainant had temporarily lost her capacity to choose whether to have intercourse on the relevant occasion, she was not consenting, and, subject to questions about the defendant’s state of mind, if intercourse took place, that would be rape.
The Court of Appeal, Criminal Division, so held when allowing an appeal by Benjamin John Bree against his conviction on 26 October 2006 at Bournemouth Crown Court, before Judge Jarvis and a jury, of rape. On 1 December 2006 he was sentenced to five years’ imprisonment.
SIR IGOR JUDGE P, giving the judgment of the court, said that at the start of the trial the prosecution alleged that the defendant had raped the complainant when her level of intoxication was so great that she was effectively unconscious. By the end of the evidence, however, the prosecution accepted that the gaps in her recollection were probably the result of intoxication and lack of memory rather than unconsciousness, so that although her ability to resist might have been hampered by the effects of alcohol, her capacity to consent remained. On appeal against conviction the judge’s summing up was criticised. It was said in that it did not directly address either the general problems to which this kind of case might give rise, nor their specific application to the present case. On the question of the complainant’s “capacity” to consent to sexual intercourse the proper construction of s 74 of the Criminal Justice Act 2003 led to clear conclusions. If, through drink the complainant had temporarily lost her capacity to choose whether to have intercourse on the relevant occasion, she was not consenting, and, subject to questions about the defendant’s state of mind, if intercourse took place, that would be rape. However, where the complainant had voluntarily consumed even substantial quantities of alcohol, but nevertheless remained capable of choosing whether or not to have intercourse, and in drink agreed to do so, that would not be rape. As a matter of practical reality, capacity to consent might evaporate well before a complainant became unconscious. Whether that was so or not, however, was fact-specific, or, more accurately, depended on the actual state of mind of the individuals involved on the particular occasion. For those reasons the 2003 Act provided a clear definition of “consent” for the purposes of the law of rape and, by defining it with reference to “capacity to make that choice”, sufficiently addressed the issue of consent in the context of voluntary consumption of alcohol by the complainant. The problems did not arise from the legal principles but from the infinite circumstances of human behaviour, usually taking place in private without independent evidence, and the consequent difficulties of proving this very serious offence. The jury should have been given some assistance with the meaning of “capacity” in circumstances where the complainant was affected by her own voluntarily induced intoxication, and also whether and to what extent they could take that into account in deciding whether she had consented. In a trial where the jury were given no or no sufficient directions on the issues of consent and voluntary intoxication the verdict they reached could not regarded as safe.
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