R v Aled Iwan Holloway

Consent to a sexual act may be given in advance, but it must cover the particular penetration or attempted penetration in issue. A person may withdraw consent at any stage. Where withdrawal is deliberate, made with knowledge of what is being indicated, and known to the person carrying out the act, penetration thereafter is without consent.

A complainant may lack capacity to consent and nevertheless protest at what is happening. Such protest can evidence absence of consent. Directions need not separately address capacity to withdraw consent where the jury is clearly directed on consent and on the defendant’s genuine and reasonable belief in consent.

The applicant was convicted at Cardiff Crown Court, following a retrial, of rape and assault by penetration contrary to sections 1 and 2 of the Sexual Offences Act 2003. The defence case was that the complainant had consented in advance to sexual activity while unconscious. The prosecution relied both on absence of advance consent and, alternatively, on words audible on a recording as withdrawing any consent.

He renewed an application for leave to appeal against conviction after refusal by a single judge. He challenged the introduction of the alternative case and the adequacy of the jury directions on capacity, intoxication and withdrawal of consent.

1. The renewed application for leave to appeal was refused. The alternative prosecution case caused no unfairness. The defence knew before the retrial of the enhanced audio evidence relied on as showing objection or withdrawal of consent. The evidence was before the jury, was challenged by the defence, and was put to the applicant in cross-examination. Nothing in the closing speech took the defence by surprise.

2. The judge’s original directions on consent and reasonable belief were clear and appropriate. Advance consent was legally possible, but had to cover the penetration or attempted penetration under consideration. If the jury found no consent, it had first to decide whether the applicant genuinely believed, or might genuinely have believed, that there was consent. Only then did it have to decide whether that belief was reasonable on all the evidence.

3. The absence of a separate direction on withdrawal of consent did not render the convictions unsafe. In answer to the jury’s question, the judge correctly directed that a person may withdraw consent at any stage. If consent is deliberately withdrawn, with knowledge of what is being indicated, and this is known to the person performing the act, any later penetration is not consensual.

4. The applicant’s argument that a complainant who lacked capacity to consent because of unconsciousness could not withdraw consent was unsustainable. A complainant may lack capacity to consent yet protest at what is being done, thereby evidencing lack of consent. The defence relied on advance consent, rather than contemporaneous consent during the acts. Accordingly, the rebuttable presumption in section 75 of the Sexual Offences Act 2003 was not an issue requiring direction. Whether the complainant’s words amounted to withdrawal of consent remained a factual question for the jury, as did the applicant’s genuine and reasonable belief.

• Court of Appeal (Criminal Division) — renewed application for leave to appeal against conviction refused: [2022] EWCA Crim 200.

• Crown Court at Cardiff — following a retrial, the applicant was convicted on 17 June 2021 of rape and assault by penetration contrary to sections 1 and 2 of the Sexual Offences Act 2003.