R v BQL & Anor

For sexual offences, apparent willingness does not establish consent where voluntary intoxication has deprived the complainant of the capacity to choose. Capacity may be lost before unconsciousness and is a fact-specific question under Criminal Justice Act 2003, section 74.

On a submission of no case to answer, a judge must leave the case to the jury where the evidence permits a reasonable finding of incapacity. The judge must consider evidence of apparent consent in its full context. It may support either party’s case and cannot be treated solely as undermining the prosecution.

The Crown appealed under section 58 of the Criminal Justice Act 2003 against rulings at the Crown Court at Harrow that BQL and AKO had no case to answer. The indictment alleged kidnapping, kidnapping with intent to commit a sexual offence, rape, assault by penetration and sexual assault.

The complainant, C, was heavily intoxicated. CCTV showed conduct capable of suggesting sexual willingness, but also falls, apparent disorientation and, on arrival at the house, conduct capable of showing reluctance to enter. A recording from within the house contained apparently willing sexual remarks. The central question was whether a jury could properly find that C lacked capacity to consent despite that evidence.

1. The prosecution appeal was allowed. The judge’s no-case rulings were reversed because they were not reasonable rulings within section 67 of the Criminal Justice Act 2003.

2. Section 74 defines consent as agreement by choice with freedom and capacity to make that choice. Applying R v Bree [2007] EWCA Crim 804, the court held that voluntary drinking does not itself prevent consent. However, a person who has temporarily lost capacity to choose cannot consent. Capacity may be lost before unconsciousness and depends on the person’s actual state of mind on the occasion.

3. The judge had to apply the no-case test in R v Galbraith [1981] 1 WLR 1039. The correct question was whether a reasonable jury could find that C lacked capacity to consent, rather than simply whether there was evidence that she had consented. Apparent willingness to engage in sexual activity would not amount to consent if intoxication had removed that capacity.

4. The CCTV was capable of supporting competing inferences. Although it showed kissing and sexual contact, it could also show extreme intoxication, inability to remain upright, unsafe conduct in the road, and reluctance to enter the house. The recording from inside the house also had to be assessed in that context. A jury could find that C’s apparent consent shortly afterwards was not given with capacity.

5. C’s lack of recollection, if accepted, was capable of supporting an inference that she had lacked capacity. The scientific evidence was capable of proving sexual activity by both accused and of supporting an inference that each encouraged or assisted the other. The same evidence was relevant to any asserted reasonable belief in consent. These were matters for the jury, notwithstanding powerful arguments for the defence.

6. The proceedings were ordered to resume in the Crown Court. The trial was to restart before a different judge at a different Crown Court centre.

• Court of Appeal (Criminal Division): The Crown’s appeal under section 58 of the Criminal Justice Act 2003 was allowed. The court reversed the no-case rulings and directed that the proceedings resume for a retrial.
• Crown Court at Harrow: The trial judge ruled that neither accused had a case to answer on the counts alleged.