Shaher, R v

A submission of no case to answer is properly rejected where the evidence, taken at its highest, could enable a properly directed jury to be sure that the defendant lacked a reasonable belief in the complainant’s consent. The assessment is objective and contextual. It may properly take account of the parties’ respective ages and roles, and of evidence that the complainant was unresponsive, did not reciprocate affection, did not answer enquiries, complied only when directed, and froze during intercourse.

A complainant’s view that her conduct may have appeared consensual does not establish that there was no evidence from which a jury could find an unreasonable belief in consent.

The applicant was unanimously convicted at a retrial in the Crown Court at Leeds of two counts of rape and two counts of sexual assault by penetration. He received a total sentence of four years and six months’ imprisonment.

He renewed an application for leave to appeal against conviction after permission had been refused on the papers. The sole issue was whether the Recorder had erred in rejecting a submission of no case to answer. The complainant was referred to as DG because she was entitled to anonymity under the Sexual Offences (Amendment) Act 1992.

1. The renewed application for leave to appeal against conviction was refused. The Recorder’s ruling rejecting the submission of no case to answer was clear, careful and correct. She had applied the correct test.

2. There was evidence on which a properly directed jury could be sure that, if the applicant believed DG consented, that belief was unreasonable. The relevant evidence was not confined to the absence or presence of force. It included the parties’ respective ages and roles, and DG’s account that she did not kiss the applicant back, did not respond to his enquiries, had to be directed to perform oral sex, and was frozen rather than responsive during intercourse.

3. DG’s candid acceptance that an observer might have thought she was consenting did not mean that there was objectively no evidence of an unreasonable belief in consent. Nor did the possibility that another jury might have assessed the evidence differently, including the later conversations between the parties, undermine the sufficiency of the evidence. The question was whether a jury could safely be sure on the evidence, not whether every jury would convict.

4. The court added that the Recorder’s summing-up, though not directly relevant to the application, was a model of clarity.

• Court of Appeal (Criminal Division): The renewed application for leave to appeal against conviction was refused in [2019] EWCA Crim 2162.
• Crown Court at Leeds: On retrial, the applicant was unanimously convicted on 1 February 2019 of two counts of rape and two counts of sexual assault by penetration. He was sentenced on 1 March 2019 to four years and six months’ imprisonment.