SZ, R. v

A jury direction on consent and reasonable belief in consent must be read as a whole. An infelicitous passage referring to the evidential presumption arising where a complainant was asleep or unconscious will not render a conviction unsafe if the summing-up, taken overall, leaves the jury to decide whether the prosecution has proved beyond reasonable doubt both absence of consent and absence of a reasonable belief in consent.

The evidential presumption in section 75 of the Sexual Offences Act 2003 does not remove those issues from the jury where sufficient evidence has raised them. Trial judges should consult counsel about the effect of a statutory presumption and the directions required where a point of legal difficulty arises.

The appellant was convicted at the Crown Court at Middlesex Guildhall of two counts of rape. He accepted intentional penetration on two occasions but maintained that the complainant had consented and that he reasonably believed she did.

The complainant’s case was that she had become heavily intoxicated, was asleep or unconscious during the intercourse, and lacked capacity to consent. The appeal, brought with leave on a single ground, challenged the judge’s directions on consent and reasonable belief under sections 74 and 75 of the Sexual Offences Act 2003. The central issue was whether the judge had wrongly converted the evidential presumption in section 75 into a conclusive presumption and thereby withdrawn material issues from the jury.

1. Appeal dismissed. Although the first part of the challenged direction could have been phrased better, it could not properly be isolated from the remainder of the paragraph and the summing-up as a whole.

2. The judge repeatedly and correctly directed the jury that the Crown had to prove intentional penetration, absence of consent, and absence of a reasonable belief in consent. He did not withdraw consent or reasonable belief from the jury.

3. The direction following the challenged passage expressly explained that, despite the evidential presumption in section 75, sufficient evidence could raise an issue whether the complainant consented and whether the appellant reasonably believed that she consented. The judge then summarised the defence evidence on both issues and made clear that the prosecution retained the burden of proof.

4. Accordingly, the jury could have been in no doubt that it had to decide whether the prosecution had made it sure that the complainant did not consent and that the appellant lacked a reasonable belief in consent. The convictions were safe.

5. The court added that the difficulty could have been avoided had the trial judge made a proper inquiry of counsel about the effect of the presumption and the appropriate jury directions. Trial judges should consult counsel where a difficult point of law arises.

• Court of Appeal (Criminal Division): The appeal against convictions for two counts of rape was dismissed: [2007] EWCA Crim 2018.

• Crown Court at Middlesex Guildhall: On 5 December 2006, the appellant was convicted before Judge Ader of two counts of rape.