Bree, R v

Under Sexual Offences Act 2003, voluntary intoxication does not itself negate or establish consent. A complainant does not consent if drink has temporarily removed her capacity to choose whether to have intercourse. Capacity may be lost before unconsciousness, but the issue is fact-specific and cannot be resolved by a prescribed alcohol level.

Where capacity remains and the complainant agrees by choice, consent remains valid despite substantial alcohol consumption. In a rape trial involving intoxication, the jury must receive directions tailored to the evidence on capacity, actual consent and the effect of alcohol on the reliability and interpretation of the evidence.

The appellant was convicted of rape at Bournemouth Crown Court after sexual intercourse with M following an evening of heavy drinking. The prosecution initially alleged that M had been effectively unconscious and lacked capacity to consent. By the close of the evidence, it accepted that her gaps in memory resulted from intoxication rather than unconsciousness. Its case became that M had capacity but did not in fact consent.

The appellant maintained that M was conscious, responded positively to his advances, consented, and that he reasonably believed she did so. The appeal concerned the legal effect of voluntary alcohol consumption on consent and whether the summing up adequately directed the jury on that issue.

1. Appeal allowed; conviction quashed. The directions did not enable the jury’s verdict to be regarded as safe. Consent and voluntary intoxication were fundamental issues, yet the jury received no sufficient assistance on their proper legal and factual treatment.
2. Under section 74 of the Sexual Offences Act 2003, consent requires agreement by choice with freedom and capacity to make that choice. A person who has temporarily lost capacity through drink does not consent. If intercourse then occurs, it may amount to rape, subject to proof of the defendant’s state of mind. Conversely, substantial voluntary drinking does not prevent valid consent where the person remains capable of choosing and agrees to intercourse.
3. Loss of capacity may occur before unconsciousness. It depends on the actual state of mind of the individuals on the occasion. There can be no alcohol-based grid or prescribed level at which capacity is automatically lost. Different people, and the same person on different occasions, may react differently to alcohol.
4. The judge should have explained capacity in the context of M’s voluntarily induced intoxication and directed the jury on how that evidence could bear on actual consent. The summing up addressed her drinking only as relevant to the reliability of her evidence. It did not address the defence case that, although drunk, she may have behaved consensually in a way she would not have behaved when sober.
5. The jury also required clear direction on the prosecution’s changed case. It had abandoned the allegation that M was unconscious, yet the summing up repeated her evidence that she had been unconscious without reminding the jury of that concession. The jury may therefore have convicted on a basis no longer advanced by the prosecution.
6. The court applied the guidance in R v Olugboga [1981] 73 CAR 344: the issue of consent requires a direction tailored to the circumstances and should not simply be left to the jury without further guidance.

• Court of Appeal (Criminal Division): Allowed the appeal and quashed the rape conviction.
• Crown Court at Bournemouth: On 26 October 2006, the appellant was convicted of rape before HHJ Jarvis and a jury.