Mba, R. v

Sexual Offences Act 2003 section 75 creates an evidential, not conclusive, presumption concerning consent and reasonable belief in consent. A trial judge need not invariably abandon the section 75 route once evidence raises an issue. The directions must nevertheless make clear that consent and reasonable belief remain matters for the jury, and that the Crown must disprove them to the criminal standard.

A direction which appears to require conviction merely because the statutory circumstances are proved is defective. A conviction may remain safe where a properly directed unanimous verdict on a connected count necessarily establishes violence that negates consent and any reasonable belief in it.

The appellant was convicted at the Crown Court at Snaresbrook of rape, contrary to Sexual Offences Act 2003 section 1(1), and causing grievous bodily harm with intent. He maintained that the sexual intercourse was consensual and that the complainant’s injuries resulted from a later fall.

He appealed against his rape conviction. The sole permitted ground concerned the judge’s directions on consent and the evidential presumptions in section 75 of the 2003 Act. The central issue was whether the directions wrongly treated the presumption as conclusive and, if so, whether the rape conviction was nevertheless safe.

1. Appeal dismissed. The directions on rape were deficient, but the conviction was safe.

2. Section 75 of the Sexual Offences Act 2003 creates evidential presumptions where its conditions are proved. The court did not accept that, whenever sufficient evidence raises consent or reasonable belief, the judge must confine the directions to the ordinary statutory provisions and treat the section 75 route as unavailable. The essential requirement is that the jury understand that consent and reasonable belief are for them, and that the Crown must disprove them to the criminal standard.

3. Applying the approach in Zhang [2007] EWCA Crim 2018, the court assessed the overall effect of the summing-up. The judge directed that, if the jury were sure the appellant used violence or caused fear of immediate violence, they had to find both lack of consent and absence of reasonable belief. He did not adequately explain that the jury must consider the defence evidence raising consent, nor did he clearly restate the Crown’s continuing burden. The directions therefore came perilously close to making the section 75 presumption conclusive.

4. Despite that error, the jury had unanimously convicted the appellant of causing grievous bodily harm with intent on the same facts. That verdict, reached after uncriticised directions, showed that they were sure he had inflicted violence which negated consent and any reasonable belief in consent. If the complainant’s evidence was accepted, as it plainly was, it compelled a guilty verdict for rape without reliance on the presumption. The conviction was accordingly safe.

• Court of Appeal (Criminal Division) — Appeal against the rape conviction dismissed: [2012] EWCA Crim 2773.
• Crown Court at Snaresbrook — The appellant was convicted of rape under Sexual Offences Act 2003 section 1(1) and causing grievous bodily harm with intent, and was sentenced on 25 July and 21 August 2011 respectively.