Robin Edward Jacobs v R

For the purposes of Sexual Offences Act 2003, the reasonableness of a belief in consent is assessed objectively in all the circumstances. A defendant’s autism may be a relevant circumstance where evidence shows that an impairment in reading subtle social or behavioural cues could bear on the belief formed in the particular incident. It is not relevant as a matter of principle merely because the defendant has autism.

Expert evidence must reliably connect the diagnosis and opinion to the evidence and issues in the case. General or theoretical possibilities, unsupported by such a connection, may confuse rather than assist a jury and need not be admitted as fresh evidence.

The applicant was convicted at the Central Criminal Court of rape by anal penetration and sentenced to four years’ imprisonment. His case at trial was primarily that the complainant had consented. Alternatively, he contended that he reasonably believed that she consented.

The applicant had been diagnosed with autism before trial. Agreed facts about that diagnosis were placed before the jury, principally to explain his conduct after the incident. No expert gave evidence. After conviction, the applicant sought leave to appeal and leave to adduce further psychiatric reports as fresh evidence under the Criminal Appeal Act 1968.

The central issue was whether the available and additional psychiatric evidence made the applicant’s autism relevant to the reasonableness of any belief in consent, such that the jury required a further direction and the conviction was unsafe.

1. Applications refused. The court held that it was not arguable that the conviction was unsafe. It refused both leave to appeal against conviction and leave to rely on additional psychiatric evidence.
2. Under section 1 of the Sexual Offences Act 2003, the reasonableness of a belief in consent is objective, assessed in all the circumstances. The court approved the fact-sensitive observations in R v B (MA) [2013] EWCA Crim 3. Autism may be relevant where a defendant’s ability to read subtle social or behavioural cues bears on the belief in the particular case. It is not automatically relevant merely because a defendant has autism.
3. The reports available at trial did not provide a reliable evidential basis for treating the applicant’s autism as relevant to reasonable belief in consent. Dr Marshall had concluded that autism was not a significant factor in the incident. Dr Cumming’s tentative suggestion that autism might have affected the reading of non-verbal cues was theoretical, was not tied to the evidence of the incident or prior sexual encounters, and was undermined by other parts of his report. The jury therefore required no further direction about autism.
4. The further reports did not alter that conclusion. Neither expert adequately explained the apparent inconsistency with the earlier opinions, identified any relevant cue that might have been missed, or linked the theoretical possibility to the circumstances in issue. The evidence consequently presented serious problems of relevance, reliability and admissibility. It was likely to confuse rather than assist the jury.
5. Considering the reports de bene esse under section 23 of the Criminal Appeal Act 1968, their admission was neither necessary nor expedient in the interests of justice. There was also no reasonable explanation for failing to adduce the evidence at trial, where the applicant had made an informed tactical choice about the presentation of his defence.

• Court of Appeal (Criminal Division): By [2023] EWCA Crim 1503, refused leave to appeal against conviction and refused leave to rely on additional psychiatric evidence.
• Crown Court at the Central Criminal Court: On 15 September 2022, His Honour Judge Hillen convicted the applicant of rape and sentenced him to four years’ imprisonment. An earlier jury had been unable to agree on a verdict.