ML, R. v

Where the defendant wholly denies sexual conduct, a trial judge may identify the occurrence of the alleged acts as the principal factual issue. The judge must nevertheless direct the jury that the prosecution bears the burden of proving every statutory element, including absence of consent and, where required, absence of a reasonable belief in consent.

A summing-up is not unfair merely because it does not repeat each defence submission at its conclusion. It is sufficient if, read as a whole, it fairly summarises the evidence, presents the competing cases, and leaves factual assessment to the jury.

The appellant was convicted at Cardiff Crown Court of sexual offences against his niece, including rape, sexual assault, and causing a person to engage in sexual activity without consent. He was sentenced to 12 years’ imprisonment.

His defence was a complete denial: he alleged that the complainant had fabricated the allegations. At trial, neither side advanced a positive case that sexual activity had occurred with consent. The judge directed the jury on the elements of the offences, including consent, while identifying the principal issue as whether the alleged acts occurred.

The appeal challenged the adequacy of the directions on consent and, by renewed application, the fairness and balance of the summing-up.

1. Appeal dismissed. The judge’s directions did not remove consent from the jury’s consideration. For each category of offence, he made clear that the prosecution had to prove the relevant absence of consent and, where applicable, the absence of a reasonable belief in consent.

2. The judge was entitled to give primacy to the live defence contention that no sexual acts occurred. The appellant had not advanced a case of consensual sexual conduct, there was no positive evidence of it, and he had not given evidence. In that context, identifying whether the acts happened as the principal issue was proper, provided that all elements remained for the prosecution to prove.

3. The directions complied with the undertaking not to leave the case on an automatic basis that, if sexual relations occurred, they must have been non-consensual. The jury were repeatedly told to consider consent and reasonable belief in consent as necessary elements. There was no further direction that the judge could properly have given to meet the appellant’s complaint.

4. The renewed grounds concerning imbalance in the summing-up were also rejected. The judge had comprehensively summarised the evidence, cross-examination, and the appellant’s police interview. A greater amount of evidence from prosecution witnesses did not itself create unfairness. The judge was entitled to comment within proper limits, made clear that factual matters were for the jury, and fairly stated the opposing cases at the end of the summing-up.

5. The convictions were not unsafe. The court dismissed the appeal and refused the renewed application for leave to appeal on the additional grounds.

• Court of Appeal (Criminal Division): In [2017] EWCA Crim 285, dismissed the conviction appeal and refused the renewed application for leave to appeal on further grounds.
• Crown Court at Cardiff: On 1 July 2016, following trial before Judge Gaskell and a jury, convicted the appellant of eight sexual offences and later imposed a total sentence of 12 years’ imprisonment.