202403033 B4 - [2025] EWCA Crim 1359

The relevant legislative provisions are all contained in Part 1 of the 2003 Act.

Section 3 provides:

“Sexual assault

(1)

A person (A) commits an offence if—

(a)

he intentionally touches another person (B),

(b)

the touching is sexual,

(c)

B does not consent to the touching, and

(d)

A does not reasonably believe that B consents.

(2)

Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.

(3)

Sections 75 and 76 apply to an offence under this section.”

In the present case, only (c) and (d) were in issue before the Jury.

Section 74 defines “consent for the purposes of Part 1”, and thus covers a wide range of offences, including sexual assault, which require the prosecution to prove a lack of consent. It provides:

“For the purpose of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice.”

Section 75 provides for certain evidential presumptions about consent:

“(1)

If in proceedings for an offence to which this section applies it is proved-

(a)

that the defendant did the relevant act.

(b)

that any of the circumstances specified in subsection (2) existed, and

(c)

that the defendant knew that those circumstances existed,

the complainant is to be taken not to have consented to the relevant act unless sufficient evidence is adduced to raise an issue as to whether he consented, and the defendant is to be taken not to have reasonably believed that the complainant consented unless sufficient evidence is adduced to raise an issue as to whether he believed it.

(2)

The circumstances are that-

…(d) the complainant was asleep or otherwise unconscious at the time of the relevant act;…”

Whilst section 75(2)(d) is relied upon by the Crown, like the Judge, we do not consider that it would have been either helpful or appropriate to rely on such assumption, given the evidence before the jury that C2 may have consented to the sexual activity in advance of the relevant act.

Section 76 provides for certain conclusive presumptions about consent in two specified circumstances:

“(1)

If in proceedings for an offence to which this section applies it is proved that the defendant did the relevant act and that any of the circumstances specified in subsection (2) existed, it is to be conclusively presumed—

(a)that the complainant did not consent to the relevant act, and

(b)that the defendant did not believe that the complainant consented to the relevant act.

Section 76 is to be construed narrowly, (see R v Jheeta [2007] EWCA Crim 1699;[2008] 1 WLR 2582 at [24] (“Jheeta”) and R v Bingham [2013] 2 Cr App R 29 at [19]-[20]). It was not regarded as applying in the present case.