Doyle, R. v

For rape, consent under Sexual Offences Act 2003 requires agreement by free choice. Mere unwilling submission is not consent. A jury may sometimes need help to distinguish reluctant but freely chosen agreement from submission through fear of adverse consequences. Whether such assistance is needed depends on the evidence and the relationship in issue.

Directions must be read as a whole and in their evidential context. A direction is adequate where it clearly identifies the disputed accounts, directs the jury to focus on consent at penetration and makes clear that conviction requires certainty. The jury must also be directed to assess material inconsistencies when deciding the complainant's reliability; no particular formula of caution is required where the summing up fairly and fully performs that task.

The appellant appealed convictions for common assault, rape and false imprisonment following a trial at Inner London Crown Court. He had pleaded guilty to criminal damage and a further common assault. A count of witness intimidation resulted in a formal acquittal at the close of the prosecution case.

The rape allegation concerned intercourse following an argument between the appellant and the complainant, who had been in a sexual relationship. The prosecution alleged force and lack of consent. The appellant maintained that intercourse was consensual. The appeal challenged the directions on consent and reasonable belief, the treatment of alleged inconsistencies in the complainant's evidence, and, by a renewed application for leave, the direction on the common-assault count.

1. Appeal dismissed. The renewed application for leave to advance a further ground concerning common assault was refused. The direction confined conviction on that count to a finding that the complainant's account was true. It therefore necessarily required rejection of the appellant's account, which raised self-defence.
2. On rape, the judge correctly directed the jury by reference to section 74 of the Sexual Offences Act 2003. Consent required agreement by choice with freedom and capacity to make that choice. The direction properly contrasted free choice with mere submission to something unwanted, and it directed the jury to consider the parties' relationship and all relevant facts.
3. The court accepted that, in some cases, particularly those involving a long-term and loving relationship, a jury may need assistance in distinguishing reluctant but freely chosen agreement from unwilling submission caused by fear of worse consequences. This was not such a case. The competing accounts left no realistic intermediate case of a complainant giving a misleading impression of consent. The prosecution alleged force, resistance and an express refusal before penetration; the appellant alleged willing and consensual intercourse.
4. The judge also correctly treated actual consent and the appellant's reasonable belief in consent as separate questions. The relevant time was penetration. A belief formed beforehand could not excuse intercourse if the complainant then made clear that she did not consent. Any steps taken to ascertain consent were a factor for the jury, not a mandatory evidential requirement.
5. The summing up adequately dealt with inconsistencies. It directed the jury to consider their importance, the complainant's explanations and their effect on reliability. Further inconsistencies and conduct said to be inconsistent with rape were rehearsed during the evidential summary. Read as a whole, the summing up was clear, fair and full, and the convictions were safe.

• Court of Appeal (Criminal Division) — the appeal against conviction was dismissed: [2010] EWCA Crim 119.
• Inner London Crown Court — on 1 April 2009, the jury convicted the appellant of common assault and rape unanimously, and of false imprisonment by a majority. He had previously pleaded guilty to criminal damage and a further common assault.