Kamki, R v

Consent to sexual activity requires agreement by choice, with freedom and capacity to make that choice. Alcohol consumption does not itself remove capacity or consent. A person may retain capacity despite having consumed a large amount of alcohol.

Unconsciousness necessarily prevents consent. Capacity may also be lost before complete unconsciousness, depending on the person’s degree of awareness and ability to choose. Where capacity may have remained, the fact-finder must separately decide whether the person in fact consented. A direction is sufficient if it clearly explains those stages; it need not use a particular formula about regretted drunken consent.

Following a jury trial at the Crown Court at Manchester Minshull Street, the appellant was convicted of rape, assault by penetration and sexual assault. He received a total sentence of six years’ imprisonment.

The complainant had consumed a substantial amount of alcohol at a party. The prosecution alleged that she was asleep or so intoxicated that she lacked capacity to consent. The appellant accepted sexual activity but contended that she consented and that he reasonably believed in consent.

On an appeal against conviction, the appellant challenged the adequacy of the judge’s directions on consent, intoxication and capacity.

1. Appeal dismissed. The trial judge’s directions correctly identified the issues that the jury had to determine.

2. Consent requires agreement by choice and the freedom and capacity to make that choice. A person who is asleep or unconscious cannot make a choice and therefore cannot consent. The judge was also correct to explain that incapacity may arise before complete unconsciousness, depending on the person’s degree of awareness and ability to choose.

3. Alcohol does not automatically remove capacity. A person may have consumed a great deal of alcohol and still have capacity to choose whether to engage in sexual activity. If the jury were sure that intoxication had temporarily removed the complainant’s capacity to choose, there was no consent. If she had, or might have had, capacity, the jury then had to decide whether she did, or might have, consented in fact.

4. The directions therefore sufficiently distinguished lack of capacity from the separate question of actual consent. They also left the jury to evaluate the evidence concerning the location and circumstances of the admitted sexual activity. Although both parties referred to R v Bree [2007] EWCA (Crim) 804, no additional formula was required. In particular, the judge did not have to state expressly in every case that a drunken consent remains consent.

• Court of Appeal (Criminal Division): dismissed the appellant’s appeal against conviction.

• Crown Court at Manchester Minshull Street: following a jury trial before HHJ Adrian Smith, convicted the appellant of rape, assault by penetration and sexual assault, and imposed a total sentence of six years’ imprisonment.