LORD JUSTICE DUNN: In this case we grant leave to appeal against conviction and we treat the hearing of the application as the hearing of the appeal.
The question of law raised by this appeal is whether to constitute the offence of rape it is necessary for the consent of the victim of sexual intercourse to be vitiated by force, the fear of force, or fraud; or whether it is sufficient to prove that in fact the victim did not consent.
The offence of rape was defined for the first time by statute in 1976. Section 1 of the Sexual Offences (Amendment Act) 1976 amended Section 1 of the Sexual Offences Act 1956 by providing as follows:
"For the purposes of section 1 of the Sexual Offences Act 1956 (which relates to rape) a man commits rape if - (a) he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it; and (b) at that time he knows that she does not consent to the intercourse or he is reckless as to whether she consents to it; and references to rape in other enactments (including the following provisions of this Act) shall be construed accordingly. "
In this appeal it is not disputed that the appellant had sexual intercourse with Jayne. The only questions for the jury were whether she had consented, and if she had not whether the appellant knew she had not or was reckless as to whether she consented or not. In this appeal we are only concerned with the actus reus and not with the mens rea of the appellant.
The appellant, who is a Nigerian, aged 20 at the time and studying at Oxford, had sexual intercourse with Jayne, then aged 16, on 8th March, 1979, at the bungalow of his co-accused Lawal. She had been taken there with her friend Karen (aged 17) with Lawal in a car driven by the appellant from a discotheque in Oxford where they had all been dancing. Lawal had offered the girls a lift home, but the appellant had driven them to the bungalow which was virtually in the opposite direction from where they lived. This was a deliberate trick to get them to the bungalow. When they got there both girls refused to go in, and started walking away. They did not know where they were. Lawal followed them in the car, and after some argument they got in. After a further argument Karen again got out, and, as she was trying to get Jayne out, Lawal drove off, stopped in a lane, and raped Jayne.
Lawal then drove back to the bungalow, picking Karen up on the way, and the three of them went inside. The appellant was there lying on the sofa asleep, and saw them arrive, Jayne was the last to come in. She was either crying, or obviously had been. Music was put on, Jayne declined to dance. She went to the lavatory and returned to find Lawal dragging Karen into the bedroom. The appellant switched the sitting-room lights off and told Jayne that he was going to fuck her. She told him that Lawal had had her in the car and asked why could the appellant not leave her alone. He told her to take her trousers off and she did because she said she was frightened. She was still crying and the room was in darkness. The appellant pushed her on the settee and had intercourse with her. It did not last long. She did not struggle; she made no resistance; she did not scream or cry for help. She did struggle when she thought after penetration that the appellant was going to ejaculate inside her, and he withdrew. She put her clothes on and the other two emerged from the bedroom, where Lawal had raped Karen. The appellant and Jayne then went into the bedroom. She told him she was going to call the police. He said that if she opened her big mouth he would not take her home. He later did.
Once home Jayne made a complaint to her mother about Lawal but not about the appellant. She said later she did not know why she did not complain to her mother about the appellant. She supposed that she was more upset "about the first one", meaning Lawal.
After she had made her complaint to her mother about Lawal she saw the police and a doctor, with whom she spent a total of eight hours. She made no complaint against the appellant; indeed she said he had not touched her.
The police initially saw the appellant as a witness to the complaints by both Jayne and Karen with regard to the rapes on each of them by Lawal. In the course of the interview the police said to the appellant that Lawal had said that he, the appellant, had had sexual intercourse with Jayne. When they put that to him, Jayne had made no complaint against him. The appellant at once admitted he had had sexual intercourse with Jayne and in answer to the question: "Did she consent?", he replied: "Well not at first but I persuaded her". At the end of the interview the appellant made a written statement. The police then saw Jayne who said that the appellant had indeed had intercourse with her against her will. The police then went back to see the appellant and put to him what Jayne had said. There followed a further long and detailed interview.
At the trial a submission was made at the conclusion of the case for the Grown on behalf of the appellant that there was no case to answer. The judge ruled that the case should go to the jury. The appellant did not give evidence, and relied on his statement to the police as constituting his defence.
The judge dealt with the question of consent in his summing-up in a number of passages. At page 6 he said:
"The question of consent is a question of fact for you to decide, approaching it in a common-sense way. You are concerned, are you not, with the field of human sexual behaviour and in particular in this case, teenage sexual behaviour? You have to consider it in a common-sense way applying your own experience or knowledge of human nature and your knowledge of the ways of the world".
Then at page 7 he said:
"Sometimes a woman gives in and submits out of fear, or constraint, or duress. "
These directions were quite general in relation to both girls.
In relation to Jayne the judge said, at page 65:
"You will consider her evidence very carefully and decide whether or not there were any constraints operating on her will, so that you are satisfied that in taking her trousers down, and letting him have sexual intercourse with her, she was not, in fact, consenting to it. "
At page 7 5 the judge said:
"Members of the jury, you are concerned with what was the reason? Was it circumstances in which she was consenting, or was it circumstances in which there was constraint operating on her mind, fear or constraint, so that in doing that, she was doing it without her consent. "
Finally, at page 102, the judge said:
"Let me remind you finally that the defence point out that it is not a case where the girl was struggling or screaming. Unless what was said about intercourse and then going home contained any implied threat in it, no threats were uttered; certainly no threats of force or violence, or anything of that sort. The defence say this girl removed her own trousers and that was in itself an open invitation to sex. That of course depends on why and in what circumstances she removed her trousers. Was it because she was consenting, or was it because she was giving in out of fear or constraint, so that she was removing her own trousers without consent? It is a matter for you to decide".
The appellant was convicted of rape by a majority of 11-1 and sentenced to 30 months' imprisonment.
Mrs. Trewella, in a series of very able submissions, said that these statements by the judge constituted a misdirection. She submitted that the statutory definition of rape introduced by the 1976 amendment into section 1 of the Sexual Offences Act 1956 was declaratory only, and had not changed the common law whereby the type of threat that vitiates consent is limited to threats of violence either to the victim or as in duress to some close or near relative. She relied in support of that submission on a number of cases going back to the middle of the last century; R. v. Hallett (1841) 9 C. & P. 748; R. v. Day (1841) 9 C. & P. 722; R. v. Wright (1866) 4 F. & F. 967; R. v. Mayers (1872) 12 Cox 311; and by analogy Latter v. Braddell (1881) 50 L. J. (N. S. ) 166, where a domestic servant whose mistress had insisted that she be examined for pregnancy by a doctor was held to have no cause of action in assault because, although she was tearful and did not wish to be examined, no force or violence or threat had been used to persuade her to undergo the examination.
Mrs. Trewella also relied on two more recent cases, R. v. Howard (1966) 1 WLR 13, and R. v. Lang (1976) 62 Cr. App. R. 50, where it was held that sexual intercourse after submission induced by force or the threat of force was the classic example of rape. She also relied on a case decided by Winn J., reported in the Times newspaper as a news item, on 19th December, 1961, where the judge appears to have withdrawn from the jury a case where a police constable was charged with rape on the basis that he had threatened the victim that he would report her for an offence unless she had sexual intercourse with him which she did. Mrs. Trewella submitted that in that case there was certainly a constraint on the will of the victim but she did not submit by reason of force or the threat of force.
Mrs. Trewella accepted that submission by the victim did not necessarily involve consent, but the submission must be induced because of fear of violence (See R. v. Day above). She submitted that moral or economic pressure or even blackmail causing a woman to submit to sexual intercourse could never be enough to found a charge of rape. Otherwise she said the film producer who induced an actress to have sexual intercourse by telling her she would not get a part in his new film if she did not, or the man who induced a woman to have sexual intercourse by telling her that if she did not he would tell her fiance that she had been a prostitute would be guilty of rape.
She submitted that those classes of case would constitute offences under section 2 of the 1956 Act. That section provides: "(1) It is an offence for a person to procure a woman, by threats of intimidation, to have unlawful sexual intercourse in any part of the world". Although the section was first enacted in the Criminal Law Amendment Act 1885 and was probably intended to deal with a person who procured a woman to have sexual intercourse with a third party, it also applies to a man who causes a woman to have sexual intercourse with himself. Although the section is little used, Mrs. Trewella said that it is apt to cover cases of threats and intimidation falling short of threats of death or violence. The maximum penalty under the section is 2 years' imprisonment as compared with life imprisonment for rape. It is right that the law should confine rape to the most serious cases and that lesser offences should be dealt with under section 2.
Mrs. Trewella submitted that just as the law limits the circumstances in which any person may say he has acted involuntarily to duress, which involves threats of death or violence to that person or a close relative, so it is consistent that the common law has limited the circumstances in which a woman who has had sexual intercourse may say that the act was not consensual.
Mrs. Trewella submitted finally that to say, as the judge did, that any constraint upon Jayne's will could negative consent constituted a misdirection. The word "constraint" includes moral as well as physical pressure and moral pressure is not enough. Even to tell a girl that she would not be taken home until she had sexual intercourse, in the absence of any threat of violence expressed or implied would not vitiate her consent.
The definition of rape imported into the 1956 Act by the amending Act of 1976 makes no mention of force, fear or fraud. It simply defines rape as being unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it. The 1976 Act by its short title is described as "An Act to amend the law relating to rape, " Is it a true amending Act or is it merely declaratory of the common law? To answer that question it is necessary to look at the history of the legislation.
R. v. Morgan 1976 A C 182 stated the law of rape as it then stood. Their Lordships were primarily concerned with the necessary mens rea of the offence. They were not concerned with, nor did they consider, the actus reus. But there is a passage in the speech of Lord. Hailsham, at page 210, which appears to indicate that the Lord Chancellor was accepting the common law definition of rape, that is to say sexual intercourse by force, fear or fraud.
Following the decision in Morgan an advisory group on the law of rape was set up under Heilbron J. The group reported to the Home Secretary on 14th November, 1975 (Command Paper 6352). Like the House of Lords in Morgan they were principally concerned in the material part of the report with the mens rea of the offence. However in a section headed "The Crime of Rape" there appear the following paragraphs -paragraph 18:
"There is no modern definition of the crime of rape and although it is an offence under section 1 of the Sexual Offences Act 1956, the statute contains no attempt at a definition. The traditional common law definition, derived from a 17th Century writer and still in use, is that rape consists in having unlawful sexual intercourse with a woman without her consent, by force, fear or fraud.
"19. This definition can be misleading, since the essence of the crime consists in having sexual intercourse with a woman without her consent and it is, therefore, rape to have intercourse with a woman who is asleep or with one who unwillingly submits without a struggle.
"20. As Smith and Hogan point out in their text book on the Criminal Law: 'Earlier authorities emphasised the use of force; but it is now clear that lack of consent is the crux of the matter and this may exist though no force is used. The test is not "was the act against her will?" but "was it without her consent?"'.
"21. It is, therefore, wrong to assume that the woman must show signs of injury or that she must always physically resist before there can be a conviction for rape. We have found this erroneous assumption held by some and therefore hope that our recommendations will go some way to dispel it.
" 22. The actus reus in rape, which the prosecution must establish for a conviction consists of (a) unlawful sexual intercourse and '(b) absence of the woman's consent. "
Paragraph 84 of the report is in these terms;
"Finally, as rape is a crime which is still without statutory definition, the lack of which has caused certain difficulties, we think that this legislation should contain a comprehensive definition of the offence which would emphasise that lack of consent (and not violence) is the crux of the matter. " That paragraph was incorporated into a recommendation for what was described as "declaratory legislation".
In its Working Paper on Sexual Offences of October 1980, the Criminal Law Revision Committee, under the heading "Consent in Rape", stated in paragraph 20:
"Until the second half of the nineteenth century, the courts seem to have had no problems about what amounted to consent. If a woman was made by the use of force to have sexual intercourse, or submitted in fear under a threat of force, she was adjudged to have been raped. She had not consented to the intercourse. This is still the law and, in our opinion, should continue to be the law. In the ordinary case of rape there has been force or the threat of force. Where sexual intercourse is procured by fraud, there is under section 3 of the Act of 1956 a special offence which we propose should continue. The judges and Parliament have intervened, in a few situations, to interpret the notion of absence of consent so as to extend the law of rape to what are basically cases of fraud. In paragraphs 21 to 2 5 we consider whether the law in this respect should be altered. "
Paragraph 24:
"A majority of us are of the opinion that the offence of rape should not apply when a woman has knowingly consented to the defendant putting his penis into her vagina. Mistake as to his identity, whether as a husband or otherwise, or as to the purpose for which the penetration has been made should be irrelevant. Nor should the "use of threats or other intimidation short of threats of force amount to rape. Most of us are of the opinion that the distinctions drawn in the cases cannot "bear the weight they have been made to carry, and we doubt whether many laymen would regard the examples we have given as cases of rape. In particular, we consider that the distress which the victim of such frauds or threats may suffer is, though a serious matter, not really comparable with the fear and shock that often accompanies true rape. Most of us therefore take the view that inducing sexual intercourse by fraud or threats (other than threats of force) or other intimidation should be criminal and attract heavy penalties but should not be forms of rape.
" 25. A minority of our members consider that the present is not the right time in which to narrow the law of rape. For over 100 years now the crucial question to be asked in rape cases has been not whether the act was against the woman's will but whether it was without her consent....."
Those paragraphs indicate that the committee were of the opinion that under the law as it now stands consent may not only be vitiated by force or threats of force,. but that inducing sexual intercourse by fraud or threats (other than threats of force) or other intimidation may be sufficient to negative consent, and constitute rape.
We have not been persuaded by Mrs. Trewella that the position at common law before 1976 was different from that stated in the Report of the Advisory Group, but whatever it may have been we think that Parliament must have accepted the group's recommendation in paragraph 84 of their report and incorporated it in the 1976 Act. Accordingly in so far as the actus reus is concerned the question now is simply: "At the time of the sexual intercourse did the woman consent to it?" It is not necessary for the prosecution to prove that what might otherwise appear to have been consent was in reality merely submission induced by force, fear or fraud, although one or more of these factors will no doubt be present in the majority of cases of rape.
We do not agree, as was suggested by Mrs. Trewella, that once this is fully realised there will be a large increase in prosecutions for rape. Nor, on the other hand, do we agree with Mr. Brent's submission, on behalf of the Crown, that it is sufficient for a trial judge merely to leave the issue of consent to a jury in a similar way to that in which the issue of dishonesty is left in trials for offences under the Theft Act. In such cases it is sufficient to direct the jury that "dishonest" is an easily understood English word and it is for them to say whether a particular transaction is properly so described or not. Although "consent" is an equally common word it covers a wide range of states of mind in the context of intercourse between a man and a woman, ranging from actual desire on the one hand to reluctant acquiescence on the other. We do not think that the issue of consent should be left to a jury without some further direction. What this should be will depend on the circumstances of each case. The jury will have been reminded of the burden and standard of proof required to establish each ingredient, including lack of consent, of the offence. They should be directed that consent, or the absence of it, is to be given its ordinary meaning and if need be, by way of example, that there is a difference between consent and submission; every consent involves a submission, but it by no means follows that a mere submission involves consent. (per Coleridge J. in R. v. Day (1841) 9 C. & P. 722, at page 724). In the majority of cases, where the allegation is that the intercourse was had by force or the fear of force, such a direction coupled with specific references to and comments on the evidence relevant to the absence of real consent will clearly suffice. In the less common type of case where intercourse takes place after threats not involving violence or the fear of it, as in the examples given by Mrs. Trewella, to which we have referred earlier in this judgment, we think that an appropriate direction to a jury will have to be fuller. They should be directed to concentrate on the state of mind of the victim immediately before the act of sexual intercourse, having regard to all the relevant circumstances, and in particular the events leading up to the act, and her reaction to them showing their impact on her mind. Apparent acquiescence after penetration does not necessarily involve consent, which must have occurred before the act takes place. In addition to the general direction about consent which we have outlined, the jury will probably be helped in such cases by being reminded that in this context consent does comprehend the wide spectrum of states of mind to which we earlier referred, and that the dividing line in such circumstances between real consent on the one hand and mere submission on the other may not be easy to draw. Where it is to be drawn in a given case is for the jury to decide, applying their combined good sense, experience and knowledge of human nature and modern behaviour to all the relevant facts of that case.
Looked at in this way we find no misdirection by the judge in this case. We think it would have been better not to use the word "constraint" in explaining the offence, but whenever he used it the judge linked it with the word "fear", so that in the context the word seems to us to be unexceptional.
Finally it was submitted by Mrs. Trewella that the judge should have upheld the submission that there was no case to go to the jury, and that the verdict was unsafe and unsatisfactory. As to the first submission, we refer to R. v. Galbraith, reported at present only in the Times newspaper for 20th May, 1981. There was in the instant case evidence of rape sufficient to be left to the jury, but it depended entirely on the jury's view of the reliability of the witnesses. These were essentially matters for the jury and the judge was plainly right in his discretion to rule against the submission.
As to the second submission, Mr. Brent for the Crown pointed to a number of matters which fully justified the verdict. Jayne was tricked into going to the bungalow in the first place. She had already been raped by Lawal. She was crying and frightened. She saw Lawal dragging Karen into the bedroom. The appellant was determined to have sexual intercourse with her. She was kept at the bungalow against her will until she submitted, although no force was used or threatened. In those circumstances the Jury were fully justified in coming to the conclusion that she did not consent. The appeal is accordingly dismissed.
(Counsel for the Appellant asked their Lordships to certify that a point of law of general public importance was involved and for leave to appeal to the House of Lords. Their Lordships certified the following question: "Whether to constitute the offence of rape it is necessary for the consent of the victim of sexual intercourse to be vitiated by force, the fear of force, or fraud; or whether it is sufficient to prove that in fact the victim did not consent?" Leave to appeal was refused. Legal aid was granted to the Appellant to enable an application to be made to the House of Lords.
Leave to appeal against sentence was refused)
