Mohamadi.R. v

Whether evidence of alcohol requires a tailored direction on intention depends on the evidence and the summing-up as a whole. There is no mandatory formula. A voluntary drunken intent remains an intent, while the jury must decide from all the evidence whether the defendant had the requisite intent.

An omission to remind the jury specifically to consider alcohol will not make a conviction unsafe where they received correct legal directions, were fairly reminded of the evidence, and there is no real risk that they misunderstood their fact-finding task.

The appellant was convicted at Canterbury Crown Court of three rapes and sentenced to seven years’ detention. The prosecution case was that he either committed rape or intentionally assisted, encouraged or caused others to rape a 16-year-old complainant.

There was limited evidence of his active participation, but evidence supported his presence in the room. He had said that he was very drunk. The trial judge directed the jury correctly on rape and on liability for assistance or encouragement, but declined a further direction on intoxication and intention.

The appellant appealed out of time, contending that the omission rendered his convictions unsafe.

1. Appeal dismissed. The court extended time for the appeal but held that the convictions were safe.

2. A judge must direct the jury on an issue which the evidence realistically raises as capable of providing a defence or bearing on a fact which the prosecution must prove, even if the defendant has not advanced that issue. The judge was therefore wrong to treat as wholly hypothetical the possibility that the appellant was present during the rapes, did not actively participate, and was affected by alcohol.

3. The jury had, however, been correctly directed that presence alone was insufficient for liability as an assister or encourager. They had to be sure that the appellant intended by his presence to assist, encourage or cause the crime. This complied with the principle illustrated by R v Clarkson [1971] 1 WLR 1402.

4. There is no rule that the two-limb direction suggested in R v Sheehan and Moore [1975] 1 WLR 739 must be given whenever alcohol may bear on intention. The appropriate terms of a summing-up depend on the evidence. A drunken intent remains an intent; the essential factual question is whether the jury are sure that the defendant in fact formed the requisite intent.

5. It would have been preferable to remind the jury expressly to consider the evidence of drink when deciding whether presence was intentional encouragement. But that reminder concerned fact-finding rather than an omitted rule of law. The jury had heard the evidence of drink, were clearly directed on intent and inference, and could not realistically have been led into error. The omission created no real risk of an unsafe conviction.

• Court of Appeal (Criminal Division): extended time by 661 days and dismissed the appeal against conviction: [2020] EWCA Crim 327.
• Canterbury Crown Court: following trial before Her Honour Judge Norton and a jury, convicted the appellant of three offences of rape and sentenced him to seven years’ detention.