Ali & Anor, R v

For rape under Sexual Offences Act 2003, apparent compliance does not necessarily establish consent. Where a vulnerable or immature person may have been groomed or exploited, the prosecution need not rely on an express assertion of non-consent. The jury must assess whether there was free agreement in the whole factual context.

Questions of consent and capacity should usually be left to the jury unless the evidence clearly establishes proper consent. For trafficking for sexual exploitation, intentionally arranging or facilitating a journey with the requisite sexual purpose is sufficient. The statute sets no minimum distance or duration, although movements of truly minimal geographical extent may fall outside it.

At Cambridge Crown Court, Ali and Ashraf were convicted of sexual offences arising from the exploitation of young girls. Ali was convicted of four rapes, trafficking within the United Kingdom for sexual exploitation, and engaging in sexual activity in the presence of a child. Ashraf was convicted of trafficking and other sexual offences.

Ali appealed against specified convictions and renewed his application for leave to appeal against sentence. Ashraf appealed against his sentence of 12 years’ detention in a young offender institution. The central issues included the sufficiency of the evidence of consent, the scope of trafficking travel, the elements of sexual activity in the presence of a child, the admissibility of a fearful witness’s statement, and sentencing totality.

1. Ali’s conviction appeal was dismissed. His renewed application for leave to appeal against sentence failed. Ashraf’s sentence appeal was allowed in part, and his total sentence was reduced from 12 years to eight years’ custody.

2. Under section 1 of the Sexual Offences Act 2003, lack of consent may be proved by the circumstances as a whole. The prosecution is not required to adduce an express assertion of non-consent, physical resistance, force or threats. Following the approach in R v Robinson [2011] EWCA Crim 916, grooming does not automatically vitiate consent, but exploitation of an immature or vulnerable person may produce acquiescence rather than free agreement. The distinction between consent and submission remains a question for the jury.

3. The evidence on the rape counts concerning SS and LR raised properly arguable questions about immaturity, grooming, alcohol, vulnerability and apparent acquiescence. Those questions could not be determined by isolating selected evidence suggesting consent. GB’s statement was properly admitted under sections 116 and 124 of the Criminal Justice Act 2003, because she was in fear and the defence had a proper opportunity to challenge her account through other evidence. It was not so unconvincing as to require an acquittal under section 125.

4. There was sufficient evidence on the section 11 count for the jury to infer that Ali engaged in sexual activity in SG’s presence for the purpose of obtaining additional sexual gratification from being observed, and that he lacked a reasonable belief that she was 16 or over.

5. Section 58(1) of the Sexual Offences Act 2003 does not require actual travel, a planned destination, or travel over a specified distance or duration. It is enough intentionally to arrange or facilitate a journey with the requisite intention or belief concerning a relevant sexual offence. The car journeys of several miles in this case were plainly capable of satisfying the provision.

6. Ali’s extended sentence was not arguably manifestly excessive. Ashraf, however, had a lesser role, offended over a much shorter period and was not convicted of rape. Although the individual starting points were justified, the consecutive structure produced a manifestly excessive total. The consecutive sentence on count 25 was reduced to six months, producing an overall sentence of eight years’ custody.

• Court of Appeal (Criminal Division): In [2015] EWCA Crim 1279, dismissed Ali’s appeal against conviction, refused his renewed application for leave to appeal against sentence, and allowed Ashraf’s sentence appeal to the extent of reducing his total sentence to eight years’ custody.

• Cambridge Crown Court: On 20 May 2014, Judge Lucraft QC and a jury convicted the appellants of the relevant sexual offences. On 20 June 2014, Ali received an extended sentence of 25 years and Ashraf received 12 years’ detention in a young offender institution.