Evans, R. v

Intoxication may remove inhibitions without removing a person’s capacity to choose. Consent depends on whether the person had freedom and capacity to make a choice and exercised that choice to agree. Where the evidence permits different conclusions about separate defendants, differing verdicts in a joint trial are not inconsistent merely because the allegations arise from the same events.

Loss of memory does not, without more, establish a lack of capacity to consent. Fresh expert evidence which would not undermine the safety of the verdict need not be admitted on appeal. A sentence within the applicable guideline range will not be altered without a proper basis for appellate intervention.

The applicant was convicted at Caernarfon Crown Court of rape and sentenced to five years’ imprisonment. His co-defendant, charged with raping the same complainant, was acquitted.

The prosecution case was that the complainant was very drunk and lacked capacity to consent. The applicant maintained that she had enthusiastically consented. The renewed application for leave, after refusal by the single judge, challenged the consistency of the verdicts, the directions on consent and memory loss, the refusal to admit fresh evidence, and the safety of the conviction. It also challenged the sentence.

1. The renewed application for leave to appeal against conviction and sentence was refused. The different verdicts were not inconsistent. The jury had been expressly directed to consider the evidence against each defendant separately. The circumstances in which each became involved in sexual activity, and the evidence relevant to each man’s reasonable belief in consent, were different.

2. The trial judge’s directions correctly addressed consent in the context of alcohol or drugs. Intoxication may lower inhibitions while leaving capacity to choose intact. Conversely, intoxication may remove capacity. The jury was properly directed to decide whether the complainant retained capacity and, if so, whether she chose to agree to intercourse.

3. The judge was not required to give a separate direction that absence of memory did not determine consent. Memory loss had been raised as an issue affecting the complainant’s credibility, not as proof that she lacked capacity when the sexual activity occurred.

4. The proposed pharmacological evidence did not undermine the safety of the verdict. It would at most show that memory loss following alcohol consumption did not itself establish an absence of capacity. The Court therefore declined to admit it under section 23 of the Criminal Appeal Act 1968.

5. The Court considered the invitation to interfere under the principle identified in R v Cooper [1969] 1 QB 267, but found no possible basis to disturb a verdict reached after a careful summing-up. It observed that describing that principle as a “lurking doubt” principle was inappropriate, without deciding why in this case.

6. The five-year sentence fell within the stated guideline range of four to eight years. Its severity did not justify intervention.

• Court of Appeal (Criminal Division): Renewed application for leave to appeal against conviction and sentence refused after the single judge had refused leave.

• Crown Court at Caernarfon: The applicant was convicted of rape on 20 April 2012 and sentenced to five years’ imprisonment.