Hutchings, R v

Under Sexual Offences Act 2003, section 75(2)(a), a jury must decide whether violence or a threat of immediate violence existed at the relevant time before applying the evidential presumption of non-consent. A direction must not present that presumption as irrebuttable. However, directions are to be read as a whole and should address the real issues raised by the evidence. Where the accounts are mutually exclusive, and the defendant accepts that his account would require acquittal, a detailed direction on a hypothetical rebuttal of the presumption is unnecessary.

A concise route to verdict may be given with fuller written directions if the jury is clearly directed to read the documents together. Fresh evidence should not be admitted where it was readily available at trial and is too vague, unreliable or lacking in material probative value.

The applicant was convicted at Canterbury Crown Court of false imprisonment, encouraging or assisting an offence, rape and assault by penetration. He had also pleaded guilty to assaults occasioning actual bodily harm and perverting the course of justice. He received an extended sentence of 20 years.

He challenged the trial judge’s written directions on consent in relation to the sexual offences. The issue referred by the single judge concerned the operation of section 75(2)(a) of the Sexual Offences Act 2003 and an alleged inconsistency between those directions and the route to verdict. He also sought to adduce statements from two neighbours as fresh evidence under section 23 of the Criminal Appeal Act 1968.

The central question was whether the jury had been properly directed on consent and the evidential presumption arising from violence or fear of immediate violence.

1. The Court refused the application. The proposed fresh evidence was not admissible. It had been readily available at trial: elementary enquiries of neighbouring witnesses could and should have been made. Further, the evidence was vague, unparticularised and of marginal relevance. Its reliability was undermined because the witnesses had not perceived violence which the applicant ultimately admitted, and one did not recall visible injuries which the Court regarded as prominent. The evidence had no material probative value, particularly on consent, because the complainant’s case was submission through fear rather than repeated loud protest.

2. The consent directions were adequate, realistic and directed to the true issue. Section 75(2)(a) of the Sexual Offences Act 2003 required consideration of whether violence or threats of immediate violence existed immediately before the sexual activity. The judge made that factual issue clear. The accounts were starkly opposed: if the jury accepted the applicant’s account, he was entitled to acquittal; if it accepted the complainant’s account, there could be no free consent or reasonable belief in consent.

3. The Court accepted the caution in R v Kapezei [2013] EWCA Crim 560 that a judge must not suggest that the statutory presumption is irrebuttable. Read as a whole, however, these directions did not create such a conclusion. Although the judge did not explain the mechanics of a rebuttable presumption, a further direction on a hypothetical rebuttal was unnecessary because it was no part of the applicant’s case that the complainant consented if her factual account was true.

4. The abbreviated route to verdict was permissible. It was plainly intended to be read with, and subject to, the fuller written legal directions. The material question was whether the documents taken as a whole equipped the jury to answer the issues they had to decide. They did.

5. In any event, the Court would have held the convictions safe. The evidence was strong and the jury’s factual conclusions determined the result. The application was refused.

• Court of Appeal (Criminal Division) Refused the application challenging the safety of the convictions and refused permission to adduce fresh evidence.
• Crown Court at Canterbury The applicant pleaded guilty to assault occasioning actual bodily harm and perverting the course of justice, and was convicted after trial of false imprisonment, encouraging or assisting an offence, rape and assault by penetration. He was sentenced to an extended sentence of 20 years on 8 February 2018.