Watson v R

A summing up must give a concise and balanced account of the evidence and issues that are material to the jury’s decision. It need not rehearse all the evidence. Where a defendant relies on communications as substantially inconsistent with the complainant’s account, the judge should identify their essential import and the defence case based upon them.

In sexual-offence cases, consent may include reluctant acquiescence. A direction must not present submission to a demand felt impossible to resist as necessarily inconsistent with consent. The jury must be directed by reference to the statutory concepts of freedom, capacity and agreement. A material failure on those central issues may render a conviction unsafe.

The appellant was convicted at Preston Crown Court of two counts of rape and two counts of assault by penetration. He had pleaded guilty to three counts of sex with an adult relative. The prosecution alleged that, during an otherwise consensual sexual relationship between the appellant and his adult daughter, the complainant had not consented to specified sexual acts.

The appellant appealed against conviction and sought leave to appeal against sentence. His principal complaints concerned the trial judge’s treatment in the summing up of extensive text-message exchanges, the defence case that the complainant had reasons to lie, the evidence relevant to reasonable belief in consent, and the direction on consent.

The central issue was whether the deficiencies in the summing up and consent direction made the convictions unsafe.

1. Appeal allowed. The convictions for rape and assault by penetration were unsafe and were quashed. The appeal against sentence was also entertained because the principal sentences fell with those convictions.

2. A summing up need not recite all the evidence. Following the approach in R v Lawrence [1982] A.C. 510, it must instead concisely and accurately identify the factual issues and the evidence material to them. Here, the judge mentioned the text messages but did not draw together their potentially decisive significance. The messages did not merely contain no complaint. They were capable of supporting the defence case that the complainant was an enthusiastic participant, and of undermining her account that she had throughout been reluctant or controlled.

3. The judge should also have reminded the jury of the defence case that the complainant had reasons to minimise her responsibility for the relationship and to lie in interview and evidence. In a difficult credibility case, those matters required a short, balanced summary. The judge also should have identified the text-message evidence relevant to the appellant’s possible reasonable belief in consent if the jury found absence of consent.

4. The final consent direction created a false dichotomy between free consent and submission to a demand felt impossible to resist. Although earlier directions correctly explained that consent required freedom, capacity and agreement, and could be reluctant, a person may submit reluctantly while retaining freedom and capacity to choose. The final formulation therefore did not accurately state the law and was a material misdirection. The contextual approach illustrated by Doyle [2010] EWCA Crim 119 did not save this direction.

5. The court quashed the Sexual Offences Prevention Order. Since it duplicated the restraining order, the latter was the appropriate mechanism for preventing unwanted contact. The restraining order was amended to remove references to the quashed convictions.

• Court of Appeal (Criminal Division): Allowed the appeal against conviction in [2015] EWCA Crim 559, quashed the four contested convictions, and amended the ancillary orders.
• Crown Court at Preston: Convicted the appellant of two rapes and two assaults by penetration, and sentenced him to concurrent terms of 10 years’ imprisonment.