Ciccarelli, R. v

Sexual Offences Act 2003, section 75 creates evidential, not conclusive, presumptions about consent and reasonable belief in consent. It does not reverse the prosecution’s ultimate burden of proof.

Where a statutory circumstance such as the complainant being asleep is proved, the issue of a defendant’s reasonable belief in consent is left to the jury only if evidence beyond the fanciful or speculative raises that issue. A defendant’s bare assertion of belief is insufficient. The evidence must provide a basis on which that belief could reasonably be held.

The applicant was convicted of sexual assault at the Crown Court at Reading. The complainant had been asleep or unconscious through drink, and possibly drugs, when the applicant sexually touched her. It was common ground that she had not consented and that the applicant knew she was asleep.

The trial judge ruled that the evidential presumption in section 75 of the Sexual Offences Act 2003 had not been displaced. Following that ruling, the applicant changed his plea to guilty. He appealed on the basis that his evidence of an earlier alleged advance by the complainant was enough to require the jury to consider whether he reasonably believed she consented.

1. Leave to appeal was granted, but the appeal was dismissed. The trial judge correctly ruled that no sufficient evidence had been adduced to raise an issue as to the applicant’s reasonable belief in consent.
2. Section 74 of the Sexual Offences Act 2003 defines consent as agreement by choice made with freedom and capacity to choose. Section 75 must be read in that context. The circumstances in section 75(2), including where a complainant is asleep or unconscious, identify situations in which consent is realistically unlikely.
3. Section 75 is an evidential provision. It does not reverse the ordinary burden of proof. If sufficient evidence raises an issue about consent or reasonable belief, the prosecution retains the burden of disproving that issue. Before the issue may be left to the jury, however, there must be evidence beyond the fanciful or speculative capable of supporting the reasonableness of the asserted belief.
4. The applicant’s assertion that he believed the sleeping complainant consented did not itself raise the issue. On his account, the alleged earlier advance occurred while she was awake, in a different setting, before she was taken to sleep in the spare room. They had no sexual relationship, and he did not attempt to wake her by speaking to her or touching her non-sexually before the sexual touching. That material could not provide a reasonable basis for believing that she consented while asleep.
5. The court confined its conclusion to these facts. It did not consider circumstances involving parties in an established sexual relationship who understand the boundaries of that relationship. The conviction based on the guilty plea therefore stood.

• Court of Appeal (Criminal Division): Leave to appeal against conviction was granted and the appeal was dismissed in [2011] EWCA Crim 2665.
• Crown Court at Reading: The trial judge ruled that section 75 of the Sexual Offences Act 2003 did not leave an issue of reasonable belief in consent for the jury. The applicant then changed his plea to guilty and was convicted of sexual assault.