Robinson, R. v

In a rape case, grooming does not of itself negate consent. However, where a young complainant may lack full maturity and the evidence shows acquiescence rather than positive consent, grooming may form part of the circumstances from which a jury can find absence of genuine consent.

Questions of capacity and consent should normally be left to the jury. A judge should withdraw the issue only in the clearest case where there is no evidence capable of supporting conviction.

Evidence of an earlier acquittal is generally irrelevant. It may exceptionally be relevant where the verdict necessarily shows that a witness was disbelieved. Otherwise, its admission depends on a fair balance between the parties and the risk of distracting the jury from the true issues.

On a retrial in the Crown Court at Guildford, Sean Robinson was convicted of one count of indecent assault and two counts of rape concerning his partner's daughter. The allegations concerned a sexual relationship said to have begun when the complainant was 12 and continued thereafter. He received concurrent sentences of nine years' imprisonment for rape.

The appellant challenged the rejection of a submission of no case to answer on the rape counts. He argued that the complainant's evidence showed consent rather than submission. He also challenged the refusal to tell the retrial jury that an earlier jury had acquitted him of two separate indecent-assault counts while failing to agree on others.

The central issues were whether there was sufficient evidence of absence of consent for the jury and whether the earlier acquittals were admissible as evidence bearing on the complainant's reliability.

1. Appeal dismissed. There was evidence on which a properly directed jury could find that the complainant had not genuinely consented to the sexual intercourse.

2. Grooming is not a term of art and does not necessarily vitiate consent. Manipulation, gifts, compliments and promises may secure consent without negating it. However, the complainant's age and immaturity, evidence of acquiescence rather than positive consent, and conduct capable of being regarded as grooming were circumstances from which a jury could find that she unwillingly went along with sexual acts.

3. The judge correctly left the rape counts to the jury. Under the approach in Galbraith, a judge must not usurp the jury's function. Questions of capacity and consent will normally be for the jury, as illustrated by Hysa [2007] EWCA Crim 2056. A no-case submission should succeed in this context only in the clearest case. The evidence did not meet that standard, including in relation to the sample count when the complainant was 13.

4. The earlier acquittals were properly excluded. An acquittal normally proves no more than the earlier jury's view of the evidence and is irrelevant. The exceptional position in Cooke [1987] 84 Crim App R 286 arises where an acquittal necessarily shows that a particular witness was disbelieved. No such necessary inference arose here.

5. The admissibility question required the trial judge to balance fairness to the defendant and prosecution against the danger of clouding the jury's consideration of the real issues. The earlier allegations were relatively trivial and the jury would have had to speculate about the basis of the former verdicts. In any event, their exclusion did not render the convictions unsafe.

• Court of Appeal (Criminal Division): Appeal dismissed in [2011] EWCA Crim 916.

• Crown Court at Guildford: On a retrial before HHJ Addison, the appellant was convicted on one count of indecent assault and two counts of rape, and sentenced to nine years' imprisonment.