R v Adil Malik

On a charge of rape, actual consent and the defendant’s reasonable belief in consent are separate issues. Evidence bearing on consent may nevertheless inform the assessment of reasonable belief. Under section 1(2) of the Sexual Offences Act 2003, there is no legal duty to ask expressly whether the other person consents. However, the absence of steps to ascertain consent may be relevant to reasonableness, depending on the circumstances. The jury must assess the evidence as a whole. A judge should withdraw the case only where the prosecution evidence is so weak that no properly directed jury could safely convict. It will be rare to stop a case involving a young woman alone at night in an isolated place, followed and stopped by a stranger, where she repeatedly says she did not consent.

The appellant was convicted by a majority of 10 to 1 at the Crown Court at Kingston upon Thames of three counts of rape, contrary to section 1(1) of the Sexual Offences Act 2003. He was sentenced to a hospital order with a restriction order. He appealed with leave on the ground that the trial judge should have upheld a submission of no case at the close of the prosecution evidence. The central issues were whether the evidence was sufficient on reasonable belief in consent, and whether the absence of steps taken to ascertain consent could be relevant without creating a legal duty to ask.

The appeal was dismissed and the convictions were held to be safe.

1. Section 1(1)(b) and (c) of the Sexual Offences Act 2003 require separate consideration of whether the complainant consented and whether the defendant reasonably believed that she consented. Evidence relevant to actual consent may also assist the jury when assessing reasonable belief, but the two questions must not be elided.
2. Section 1(2) requires reasonableness to be determined having regard to all the circumstances, including steps taken to ascertain consent. It does not impose a legal duty to ask expressly whether the complainant consents. Nevertheless, the absence of steps may be relevant in the particular circumstances, and the jury remains entitled to assess the whole body of evidence.
3. Applying the second limb of Galbraith, the relevant question was whether the evidence was so weak and tenuous that no properly directed jury could safely convict. The evidence included the complainant’s age, intoxication and distress, the isolated and dark location, the appellant’s following her, his sexual and violent comments, his physical advantage, and her repeated account that she did not consent. That evidence was more than sufficient to leave reasonable belief in consent to the jury.
4. The matters relied on by the defence, including the complainant’s conduct and her failure expressly to say no, were strong jury points but did not require withdrawal of the case. The court distinguished the factual issue in R v H [2007] EWCA Crim 2056, which concerned actual consent, but applied the observations at [33] and [34] that consent issues are pre-eminently for the jury. It was not suggested that evidence of lack of consent will always establish insufficient reasonable belief; each case depends on its facts.

• Court of Appeal (Criminal Division): dismissed the appeal and held the convictions safe.
• Crown Court at Kingston upon Thames: convicted the appellant by a majority of 10 to 1 of three counts of rape and imposed a hospital order with a restriction order.