England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		29 November 2013

1. LORD JUSTICE McCOMBE: On 6 October 2011, in the Crown Court at Manchester Minshull Street, after a trial before HHJ Adrian Smith and a jury, the present appellant was convicted of rape, assault by penetration and sexual assault. On 1 December 2011, he was sentenced by the learned judge to 6 years' imprisonment for rape and 2 years' imprisonment concurrent for the assault by penetration. No separate penalty was imposed in respect of the sexual assault. The total sentence was therefore one of 6 years with 56 days spend in custody on remand directed to count towards sentence. He now appeals against conviction by leave of the Single Judge, who granted the necessary extension of time.
2. The complainant, in respect of all the charges, was a young woman of Angolan nationality, aged 21 at the relevant time, who was a student at Birmingham University. We shall call her M. On Friday, 21 May 2010, M travelled with a fellow female student, E, by coach from Birmingham to Manchester to attend a party to be held at the appellant's residence. They were collected from the coach by M's boyfriend at the time, V, and E's boyfriend, B. B drove them to the party, at which they arrived somewhere around about 9pm. A considerable amount of alcohol was consumed by all relevant participants. So much was common ground.
3. At some point V retired to bed in a spare room. By approximately 2am M was, on the evidence of many witnesses, also very drunk and the evidence was that E and B, assisted by another witness, CA, carried her upstairs and put her to bed where V was already sleeping. CA said that he was not even sure that M realised that she was being carried upstairs at all.
4. A few minutes later E went into the room where they put M to check up on her to see if she was all right and she found that M had vomited on to her clothes. She said she cleaned M up and dressed her in a clean dress and underwear. She returned her to bed were V remained still asleep.
5. The Crown's case was that thereafter the appellant had entered the room where M and V were and committed the offences charged. The case was that M lacked the capacity to consent because she was either asleep or intoxicated, or very close to such a state, and that her state would have been obvious to the appellant. He could not therefore on the Crown's case have had any reasonable belief that she was consenting to any of the sexual acts alleged.
6. The defence case was, by contrast, that the appellant had gone to bed at about 3am. He found the complainant, to his surprise, asleep on his bed. He accepted that sexual activity, such as alleged in the indictment, had taken place, but that he honestly and reasonably believed that M was consenting to it.
7. In interview with the police on 23 May 2010 the appellant gave his account of what occurred. He said he found M asleep, he joined her on the bed and touched her breasts and penetrated her vagina with his finger. M awoke and began to kiss him. Intercourse followed. He said that M was consenting throughout.
8. The ground of appeal that is raised relates to the manner in which the learned judge directed the jury on the issue of consent, and the relevance of intoxication to that issue. It is not necessary, therefore, to rehearse, in any great detail, the evidence of the various witnesses before the jury, a brief summary, however, will suffice for these purposes.
9. M said she did not really recall her last drink, but did remember being sick and E helping her and bathing her. She remembered apologising to E for what had happened and E telling her not to worry. She had no idea, she said, how she got into bed. She said that when she woke the next morning she was wearing an orange dress, which had not been the one she had been wearing at the party. She was next to V who was still asleep on his back, and she tried to make sense of how she had got to bed the previous night.
10. She said as she sat on the edge of the bed she realised she had white stains on her legs, her stomach and her dress. She saw her underwear by the door and wondered how it got there. She woke V and told him that she thought something had happened. She said she later experienced a flashback of somebody being on top of her and her saying, "Where's V?". She was aware V had confronted the appellant, but she was not present when this took place. She heard the appellant say, "I never touched you". She said she never consented to any sexual activity with the appellant.
11. She was cross-examined and said she remembered some of what had happened after she went upstairs, including being sick in the bathroom, being put into a bath and having a conversation with her friend. She did not remember how she got upstairs or being put into bed. She rejected the suggestion that she had left the bed she was sharing with her boyfriend to go to the appellant's bedroom. She denied, as was put to her, that the appellant had kissed her and that she consented to sexual activity. She said she did not know why she could not recall the details of what had happened in the bed after she had gone to sleep, and said she had only had a flashback and remembered seeing the appellant's face and him on top of her.
12. There was in evidence an experimental photograph of V (who is a large man) lying on the bed shown to her taken after the event. It was put to her it was not possible for the offence to take place with her boyfriend of that size in the same bed. She said that she and the appellant knew the truth of what had happened. She agreed that she had not wanted to attend a video interview and had spent three months thinking it over. Initially she said this was because V was asking her to desist in her complaints and making threats as to what would happen if she did take that course.
13. For his part in his evidence the appellant said that he had lived in this country for 6 years and worked as a customer service representative. He was of good character. The party at his house was a barbecue to celebrate his birthday. His best friend at the time was in fact V and they used to see each other every weekend. He met M on a couple of occasions before this party. He said he was not attracted to her. He recalled drinking one glass of wine in the afternoon while preparing for the party where his girlfriend was with her sister. The sister and the girlfriend left at about 11pm because the girlfriend had to travel the following day. At the party he drank a mixture of drinks and was really drunk. He did not spend time with M at the party or pay any particular attention to her. He heard she had been ill and thought to himself maybe she had had too much to drink.
14. The appellant said he was told by B that he had had to take V, M's boyfriend, to bed. He himself went to bed at about 3am after the last people had left. He was too tired to tidy up and was shocked and surprised to find the complainant lying on his bed. He thought that she may have had an argument with V. When he went to V's room to ask him about it he found V asleep. He returned to his own bed and began to wonder whether the complainant had indeed come to the room for sex. He started to touch her on her side and on her breasts. She did not initially react. He penetrated her vagina with his finger and they began kissing and thereafter intercourse followed lasting for about 10 minutes. He said that when that had finished M stood up, went round the bed, put on her underwear and asked where V was. The appellant said he told her that he was in the other room. She then went off. He said he then fell asleep.
15. With that summary of the evidence, as we have said, the sole ground of appeal that is raised relates to the judge's summing-up on the issue of consent and capacity to consent. It is submitted that the basis of the Crown's case was not made entirely clear. Was it that there was no consent because of an absence of capacity to consent, or was it that there was capacity in spite of intoxication that there was in fact no consent? It is submitted the judge failed to make the distinction clear. It is said he failed to direct the jury on the distinct issues of whether M was unconscious and had no capacity to consent, or whether she was drunk but conscious, as the appellant contended, and had the capacity to consent to sexual activity. It is submitted by Mr Barlow that the judge did not address that point, nor the important point that a regretted drunken sexual encounter does not make that encounter non-consensual.
16. We have not found it necessary to hear from the Crown, although it is submitted in written argument by counsel for the Crown that the case was always put on the basis that M was somebody who did not have capacity to consent due to intoxication. She was either unconscious or close to that state throughout. The issue of M's capacity was, it is submitted, live throughout and the jury were well aware of it. The Crown submits that the judge's directions were entirely adequate for the purposes in hand. Both counsel naturally refer us to the case of R v Bree [2007] EWCA (Crim) 804.
17. The judge gave directions to the jury as to the effect in the law of rape of alcoholic intoxication on the part of the complainant and of the accused. In the present case it is the direction as to the complainant's intoxication that is material, and this direction is to be found between pages 5C and 6C of the summing-up, which it is, we think, necessary to read. It is in these terms:

"Now what about the effect of alcohol on a complainant such as M? I repeat now what I said earlier. Consent. A person consents only if they agree by choice and have the freedom and capacity to make that choice. So, for instance, when a person is asleep or otherwise unconscious at the time of sexual activity, whether it be penetration, touching or anything else, obviously there is no capacity or freedom to make a choice, and again that is pure common sense, is it not? If you are asleep, how can you make a decision? It follows, does it not, but what about if somebody is not asleep or unconscious, and they are in a state of some degree of consciousness? Well let us go to common sense again and the law as it interprets it. A woman can have the capacity to make a choice to engage in sexual activity, even when she has had a lot to drink obviously. Alcohol can make people less inhibited than they are when they are sober and obviously everyone is free, we are all free to decide how much to drink and whether to have sex or not. However, if through drink a woman has temporarily lost her capacity to choose whether to have sexual intercourse or to engage in sexual activity of another sort, she would then not be consenting. Clearly as I have said, a person who is unconscious through the consumption of alcohol cannot give consent, and it may well be there is before that complete loss of consciousness, a state of incapacity to consent which can be reached.

So there are of course, and this is common sense again, various stages of consciousness, are there not, from being wide awake to having a dim awareness of reality. In a state of dim and drunken awareness, a person may not be in a condition to make choices, so you will need to consider the evidence carefully in this case as to what was M's state of consciousness or unconsciousness at the time of penetration, and decide firstly was she in a condition in which she was capable of making a choice one way or the other. If you are sure that she was not, then she was obviously not consenting. If you conclude, however, that she was or may have been able to make a choice, you must decide whether she was or may have been consenting to sexual intercourse in relation to count one, penetration of her vagina in relation to count three and the touching of her breast in relation to count two."

18. Mr Barlow this morning has supplemented his submissions on the point to say that the learned judge did not at that stage interweave the facts of the particular case and the crucial issue as to where the admitted sexual activity had taken place. He did not sufficiently emphasise the well-known fact that a regretted but drunken consent remains a consent. The Crown in their written argument submit that the direction correctly included the following elements, which are set out in paragraph 14 of the skeleton argument in these terms, and concluded the following:

"a. A person consents if he or she agrees by choice and has the freedom and capacity to make that choice,

b. When a person is unconscious, there is no such freedom or capacity to choose,

c. Where a person has not reached a state of unconsciousness and experiences some degree of consciousness, further considerations must be applied,

d. A person can still have the capacity to make a choice and have sex even when they have had a lot to drink (thereby consenting to the act),

e. Alcohol can make people less inhibited than when they are sober and everybody has the choice whether or not to have sex,

f. If through drink a woman has temporarily lost the capacity to choose to have sexual intercourse, she would not be consenting,

g. Before a complete loss of consciousness arises, a state of incapacity to consent can nevertheless be reached. Consideration has to be given to the degree of consciousness or otherwise in order to determine the issue of capacity,

h. In this particular case, the jury would have to consider the evidence of M to determine what her state of consciousness or unconsciousness was and to determine what effect this would have on her capacity to consent,

i. If it is determined that the complainant did have the capacity to make a choice, it would then have to be considered whether she did or may have consented to sexual intercourse".

It seems to us that that correctly analyses the various elements of the summing-up which the learned judge gave. The question of where the activity took place was blindingly obvious to the jury. It was an issue at the heart of the case. It was summed up in the factual summing-up of the evidence which the learned judge gave. In our judgment it is not necessary, when the elements of capacity to consent have been fully dealt with in the manner that we have rehearsed, to say in every case the simple words that a drunken consent remains a consent. In our judgment, we agree with the written argument of the Crown that the relevant propositions were extracted and put to the jury in a correct way. The directions given to the jury fully satisfied the needs of the case and the issues the jury had to decide.

19. Accordingly we dismiss this appeal.