H, R. v

A complainant’s inability to recall whether she consented, or to identify a verbal refusal at the moment of penetration, does not itself require a rape charge to be withdrawn from the jury. Where the evidence could support findings of absence of consent or lack of capacity to consent, those issues should normally be determined by the jury.

Capacity may be lost before unconsciousness and depends on the complainant’s actual state of mind on the occasion. A defendant’s lies about intercourse may be relevant if the jury find that they reflected knowledge of non-consent or incapacity. A trial judge should stop such a case only exceptionally.

The defendant was on trial for rape contrary to section 1(1) of the Sexual Offences Act 2003. The complainant, aged 16, had consumed alcohol and cannabis, became separated from friends and travelled in a car with strangers. DNA evidence linked the defendant to semen found on her underwear, although he denied having met her.

At the close of the Crown’s case, the Crown Court accepted a submission of no case to answer. The judge concluded that the evidence did not safely permit a finding that the complainant lacked capacity to consent and treated her inability to remember whether she had agreed as fatal to the allegation.

The Crown Prosecution Service appealed under section 58 of the Criminal Justice Act 2003. The central question was whether the evidence of consent, capacity and the defendant’s alleged lies should have been left to the jury.

1. Appeal allowed. The court granted the Crown leave to appeal, quashed the no-case ruling and remitted the case to the Crown Court for the trial to continue.

2. Under section 67(c) of the Criminal Justice Act 2003, the court could reverse a ruling that it was not reasonable for the trial judge to have made. Although an appellate court will usually be slow to overturn an evidential assessment by a judge who saw the witnesses, this case was exceptional. The court had full transcripts, the complainant’s credibility was not in issue, and her response to questioning had limited significance.

3. There was sufficient evidence for a jury to decide both actual consent and capacity. The complainant repeatedly said that she did not want sex, described her clothing being pulled down and placed over her face, and said that she told the man to get off. Her failure to say no at the moment of penetration was not fatal. Her intoxication, memory gaps and surrounding conduct also permitted, but did not require, a finding that she lacked capacity to consent.

4. The court followed R v Bree [2007] EWCA Crim 804 in rejecting the proposition that an inability to remember whether consent was given necessarily defeats a prosecution. Capacity is fact-specific and may disappear before unconsciousness.

5. If the jury found that the defendant lied about having intercourse, it could take that lie into account on consent, capacity and reasonable belief, provided it found that the lie reflected his knowledge that the complainant did not consent or was too intoxicated to consent.

6. The judge had entered territory reserved for the jury. Questions of consent and capacity in an alleged rape should normally be left to the jury, particularly where the evidence could support either conclusion. The defence submissions remained matters for closing speech rather than a basis for stopping the case.

• Court of Appeal (Criminal Division). In [2007] EWCA Crim 2056, the court allowed the Crown Prosecution Service’s appeal, quashed the no-case ruling and remitted the matter for the trial to continue.
• Crown Court. His Honour Judge McGregor-Johnson upheld the defendant’s submission of no case to answer at the close of the Crown’s case on 28 June 2007.