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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Evans, R. v  EWCA Crim 2559 (06 November 2012)
Cite as:  EWCA Crim 2559
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B e f o r e :
MR JUSTICE MITTING
MR JUSTICE GRIFFITH WILLIAMS
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THE LORD CHIEF JUSTICE:
"When you come back .... you will be asked to return separate verdicts in respect of each of the two defendants. Accordingly, when you retire you must consider the case, that is to say the evidence for and against each of the two defendants separately. Whilst there is a considerable overlap in that evidence, the evidence is not identical, and whilst your verdicts may very well be the same in the case, they might be different. The important thing for you to remember is your approach to the case for and against the defendants must be considered separately."
"A complainant consents if, and only if, she has the freedom and capacity to make a choice, and she exercised that choice to agree to sexual intercourse."
He then addressed the implications and consequences of the evidence that the complainant had been drinking and had possibly taken cocaine. He said:
"There are two ways in which drink and/or drugs can affect an individual who is intoxicated. First, it can remove inhibitions. A person may do things when intoxicated which she would not do, or be less likely to do if sober. Secondly, she may consume so much alcohol and/or drugs that it affects her state of awareness. So you need to reach a conclusion upon what was the complainant's state of intoxication, such as you may find it to be. Was she just disinhibited, or had what she had taken removed her capacity to exercise a choice?"
He went on to explain:
"A woman clearly does not have the capacity to make a choice if she is completely unconscious through the effects of drink and drugs, but there are various stages of consciousness, from being wide awake to dim awareness of reality. In a state of dim and drunken awareness you may, or may not, be in a condition to make choices. So you will need to consider the evidence of the complainant's state and decide these two questions: was she in a condition in which she was capable of making any choice one way or another? If you are sure that she was not, then she did not consent. If, on the other hand, you conclude that she chose to agree to sexual intercourse, or may have done, then you must find the defendants not guilty."
He went on to direct the jury about the requirement relating to the individual defendant's belief about whether or not the complainant was consenting. He gave clear directions to the jury about how they should approach that issue in the context of the alcohol which had been consumed by the complainant.
"From the evidence of [the complainant] she appears to have suffered anterior-grade amnesia as a result of the high dose of alcohol which she consumed, and in particular that she consumed a substantial dose of alcohol during the last hour or so prior to leaving the nightclub. It appears from the evidence that her short-term memory was functioning at the time around the incident, but that the long-term record of that memory has been ablated by the high concentration of alcohol. There is, therefore, no memory record of those events and attempts to jog the memory may lead to confabulation. The fact that she has no memory of events does not mean that she was not able to participate in a meaningful way in events at that time, and I am quite clear that this includes the ability to make informed decisions in relation to consent. Acute alcohol intoxication may lead to substantial disinhibition and that may in itself lead to unwise judgments being made. But the fact that she does no longer remember having made a decision is a failure of the memory process and not of the decision-making process. Evidence of memory loss as a result of anterior-grade amnesia does not in itself prove that she lacked the capacity to consent."
"I have perused the 29 page report but have found difficulty in identifying those 'specific areas' on which reliance is placed. In any event, the applicant called expert evidence at trial and it appears that the applicant now wishes to adduce some further and better expert evidence. I am not persuaded, especially where the specific aspects of a long report on which reliance is placed have not been identified with clarity, that the fresh evidence, even if admissible on appeal, is such as to render the verdict of the jury unsafe."
We agree with those observations. As it seems to us, this fresh evidence does not, taken at its highest from the applicant's point of view, serve to undermine the safety of the jury's verdict. Accordingly, without further consideration of it, we decline to admit it.
".... [the complainant] was in no position to form a capacity to consent to sexual intercourse, and you, when you arrived, must have realised that."
That accurately reflected the way in which the verdict should be interpreted. No force had been used on the complainant and no injury had been caused in the course of the rape. But the long-term psychological consequences to her could not be ignored. The judge took the view that they were not lessened by the fact that she had no direct recollection of the events.