R v HEF

Evidence that a complainant had consumed cannabis did not, without more, make capacity to consent an issue. The jury could assess evidence about the substance’s effects without expert evidence. A judge need not direct the jury on capacity where that issue was not raised. An imperfect reference to being under the influence of drugs in a section 34 direction did not make convictions unsafe when the direction, viewed in context, concerned the defendant’s failure to mention consensual intercourse and the case turned on credibility.

The appellant was convicted after a jury trial in the Crown Court at Wood Green of offences against two complainants, including rape, assault by penetration and sexual assault. He appealed against conviction.

He argued that the jury had been misdirected about adverse inferences from his police interview and had been left at risk of treating cannabis consumption as affecting the second complainant’s capacity to consent. A renewed ground concerned alleged impermissible inferences from non-expert evidence about cannabis. The central issues were whether expert evidence or a capacity direction was required, and whether the directions created a real risk that the convictions were unsafe.

1. Cannabis evidence. The jury could assess the complainants’ evidence about the effects of cannabis without expert evidence. It was permissible to explore whether the appellant supplied cannabis to make C2 more vulnerable.
2. Capacity to consent. The prosecution case was that C2 had capacity but did not consent. Capacity was not an issue for the jury. The judge was not required to direct on an issue that was not in issue. Although an express direction might have been preferable, its absence did not make the convictions unsafe.
3. Section 34 direction. The direction concerned the appellant’s failure to mention consensual vaginal and oral intercourse, C2’s consent, and her initiation of the contact. Although one phrase could have been better expressed, its context did not create a real risk that the jury misunderstood the issue of capacity or reached unsafe verdicts.
4. The renewed application for leave was refused and the appeal was dismissed.

1. Crown Court at Wood Green: Following a jury trial on 18 July 2025, the appellant was convicted of two counts of rape, one count of assault by penetration and three counts of sexual assault, and acquitted on other counts.
2. Court of Appeal (Criminal Division): The renewed application for leave on one ground was refused. The appeal on the grounds for which leave had been granted was dismissed.