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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 >> Bree, R v  EWCA Crim 804 (26 March 2007)
Cite as:  EWCA Crim 804,  QB 131,  2 All ER 676,  3 WLR 600
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COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT BOURNEMOUTH
HIS HONOUR JUDGE JARVIS
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE HALLETT
MRS JUSTICE GLOSTER
|- v -
Nicholas Tucker for the Respondent
Hearing dates : 13TH March 2007
Crown Copyright ©
President of the Queen's Bench Division :
Discussion: Intoxication and Consent
"(1) A person (A) commits an offence if –
(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
(b) B does not consent to the penetrations, and
(c) A does not reasonably believe that B consents
...2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.
(3)Section 75 and 76 apply to an offence under this section.
(4) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life."
"…a person consents if he agrees by choice, and has the freedom and capacity to make that choice".
One of the objectives of the Sexual Offences Act 2003, which came into force on 1 May 2004, was to bring coherence and clarity to the meaning of consent. The provisions relating to consent represented the result of substantial discussion and Parliamentary debate about the principles which should apply to the acutely sensitive and intensely personal area of sexual relationships, whether they arise in the context of a long established marriage, or partnership, or a casual sexual encounter between total strangers. Arguments about consent abound just because consent to sexual intercourse extends from passionate enthusiasm to reluctant or bored acquiescence, and its absence includes quiet submission or surrender as well as determined physical resistance against an attacker which might expose the victim to injury, and sometimes death. The declared objective of the White Paper, Protecting the Public (Cm. 5668, 2002) was to produce statutory provisions relating to consent which would be "clear and unambiguous". As enacted, the legislation on this topic has not commanded totally uncritical enthusiasm. For some it goes too far, and for others not far enough. The law in the area, and our decision, must be governed by the definition of consent in section 74.
"She does not claim to have physically resisted nor to have verbally protested. She says the drink has disabled her from doing either….she has told you she did not consent….you must be sure that the act of sexual intercourse occurred without (her) consent. Submitting to an act of sexual intercourse, because through drink she was unable physically to resist though she wished to, is not consent. If she submits to intercourse because of the drink she cannot physically resist, that, of course, is not consent. No right thinking person would say that in those circumstances she was genuinely consenting to what occurred. What occurred….not wishing to have intercourse but being physically unable to do anything about it…would plainly, as a matter of common sense be against her will. It would be without her consent".
"…there is no special rule applicable to drink and rape. If the issue be, as here, did the woman consent? the critical question is not how she came to take the drink, but whether she understood her situation and was capable of making up her mind. In Howard  50 CAR 56 the Court of Criminal Appeal had to consider the case of a girl under 16. Lord Parker CJ….said:… "in the case of a girl under 16 the prosecution…must prove either that she physically resisted, or, if she did not, that her understanding and knowledge was such that she was not in a position to decide whether to consent or resist ". In our view these words are of general application when ever there is present some factor, be it permanent or transient, suggesting the absence of such understanding or knowledge…. None of this was explained to the jury. Their attention was focussed by the judge upon how she came to take drink, not upon the state of her understanding and her capacity to exercise judgment in the circumstances."
"the prosecution are conscious of the fact that a drunken consent is still a consent and that in the answer, in cross examination, she said, in terms, that she could not remember giving her consent and that is fatal to the prosecution's case. In those circumstances the prosecution will have no further evidence on the issue of consent. This is a case of the word of the defendant against that of the complainant on that feature It is fatal to the prosecution's case…"
The striking feature of the summing up, which is criticised in a number of different ways, is that it does not directly address either the general problems to which this kind of case may give rise, nor their specific application to the present case.