[2025] EWCA Crim 1042

Three grounds of appeal were advanced by Mr Rosser, namely:

Although Mr Rosser addressed the grounds in that order in both his written and oral submissions, they raise three issues which logically fall to be addressed in a different order, namely:

So far as the first issue is concerned, in R v Ali (Yasir Ifran) [2015] EWCA Crim 1270; [2015] 2 Cr App R. 33, this court considered the principles that apply in circumstances where the prosecution case is that the victim of an alleged rape was groomed by a defendant. At [56], Fulford LJ, who delivered the judgment of the court, said this:

“… There are many instances when the complainant’s evidence as to whether she consented will determine if there is a case to go to the jury. In our judgment, however, in particular situations such as the present the prosecution is not obliged to call overt evidence from the alleged victim to the effect that he or she did not consent, given it is possible that the circumstances may have limited or distorted the individual’s appreciation or understanding of his or her role in the sexual relations and the true nature of what occurred.”

After referring to the examples given in R v Malone [1998] 2 Cr App R 447 (at 457) of the various types of evidence of lack of consent that might go before the jury, depending on the particular circumstances of the case that the jury is trying, Fulford LJ went on to explain at [57] and [58]:

“One of the consequences when vulnerable people are groomed for sexual exploitation is that compliance can mask the lack of true consent on the part of the victim. As the judge directed the jury in the summing-up in this case, where there is evidence of exploitation of a young and immature person who may not understand the full significance of what he or she is doing, that is a factor the jury can take into account in deciding whether or not there was genuine consent….

Although … grooming does not necessarily vitiate consent, it starkly raises the possibility that a vulnerable or immature individual may have been placed in a position in which he or she is led merely to acquiesce rather than to give proper or real consent. One of the consequences of grooming is that it has a tendency to limit or subvert the alleged victim’s capacity to make free decisions, and it crease the risk that he or she simply submitted because of the environment of dependency created by those responsible for treating the alleged victim in this way. Indeed, the individual may have been manipulated to the extent that he or she is unaware of, or confused about, the distinction between acquiescence and genuine agreement at the time the incident occurred.”

Fulford LJ reiterated what Hallett LJ had indicated in R v H [2007] EWCA Crim 2056, namely, that questions of consent should normally be left to the jury. It is therefore only in clear cases that a judge should conclude that there is no evidence on which the jury could properly convict in a case of this kind. He said at [61]:

“In summary, in a case in these circumstances in which a vulnerable or immature individual has allegedly been groomed by the defendant, the question of whether real or proper consent was given will usually be for the jury unless the evidence clearly indicates that proper consent was given.”

Similar observations were made in the more recent case of R v Busharat [2024] EWCA Crim 1496 at [40].

Mr Rosser contended that C’s Achieving Best Evidence (ABE) interview contained clear evidence that proper consent was given. Although defence counsel did not submit to the judge that there was no case to answer, in hindsight the judge should have withdrawn the counts of rape from the jury at the close of the prosecution case.

In our judgment, there is no substance in this complaint. As Mr Gledhill pointed out, by reference to the “Summary of the prosecution case and the evidence”, to which we have referred above, the evidence on the issue of consent was by no means limited to what C said in her ABE interview or when she was called to give evidence. There was plentiful evidence of grooming in the jury bundles, which contained a large number of messages exchanged between the appellant and C over many years, and the appellant’s pleas of guilty to the charges of sexual activity with a child were also quite properly put before the jury and formed an important part of the overall picture.

Moreover, there was overt evidence of lack of consent. In cross-examination C disagreed with the suggestion that full intercourse was truly consensual when that was put to her directly:

“Q. When you were staying with Mr Gray there is no dispute that there was sexual activity between the two of you, including full intercourse, but that was consensual. Do you agree?

A. No.

Q. Why do you say it wasn’t consensual?

A.

Because I wouldn’t have been there if I didn’t believe the things he had made me believe.”

Tensions between that evidence and anything C said in her ABE interview were matters that could properly lead to a defence submission, in due course, that the jury could not be sure that she did not consent, or to the defendant going into the witness box and giving evidence that, whatever the complainant might now say about it, he believed at the time that she did consent. Either way, this was not a case in which the evidence, taken in the round, clearly indicated that consent was given. On the contrary, there was more than enough evidence for a jury, properly directed, to convict on Counts 14 and 15, and therefore trial counsel’s decision not to make a half-time submission of no case to answer was fully justified.

Turning to the second issue, which concerns the judge’s directions on the issue of consent, the written directions on Counts 14 and 15 occupied 5 pages. They began by setting out the ingredients of the offence of rape. The judge then, perfectly properly, directed the jury that:

“a woman consents to sexual intercourse only if she agrees by choice and has the freedom and capacity to make that choice. This case is put on the grounds that the defendant has groomed the victim into being sexually compliant such that any apparent consent on [C]’s part was not a real consent.”

The Judge then went on to explain (in terms mirroring what was said in Ali) that grooming, if it did occur, does not necessarily vitiate consent, but it does raise the possibility that a vulnerable or immature individual might have been placed in a position in which she was led merely to acquiesce rather than to give proper or real consent. He next addressed the possibility of manipulation and the effect that could have on consent. Although the judge then diverted to address the fact that a defendant’s reasonable belief in consent would afford a defence, he went on to give directions about the meaning of consent. He directed the jury in terms that the prosecution must make them sure that C did not give her agreement by the exercise of free choice. He explained that the prosecution did not have to prove that any kind of force was used, nor that there was any resistance or protest, and that the fact she did not say “no” at the time does not mean that she was consenting. Finally, he drew the jury’s attention to factors that might have a bearing on whether true consent was given. In doing so he made specific mention of aspects of the evidence on which the Crown relied.

Mr Rosser submitted that the level of detail which the judge provided to the jury on the issue of consent went well beyond the guidance given in R v Oluboja [1981] 73 Cr App R 344. In his oral submissions he was particularly critical of one passage in the written directions, in which the judge identified as one of the factors which he told the jury “you will need to take into account … if you find that they apply in respect of a particular allegation, as they may have a bearing on whether there was, in reality, a genuine consent”, namely:

“The history of the relationship between the parties at the time and the nature of the sexual encounter. This includes the age of the defendant. You will have to consider the extent to which there was any grooming as the prosecution allege. A person may achieve their objective of sex with the use of gifts, alcohol, insincere compliments, claims about being an Angel or other form of heavenly being, apparent security, a more exciting way of life and/or false promises. Such methods will not necessarily mean but [sic] there is a lack of consent where a seduction is successful.

However, where there is evidence of exploitation of a young and immature girl who may not understand the full significance of what she is doing, this is conduct you can take into account in deciding whether there was no genuine consent.”

[In context the word “but” is an obvious typing error for “that”.]

Mr Rosser contended that this approach overstepped the boundaries of an appropriate legal direction by incorporating the prosecution case within it and thereby giving it weight. The crux of the alleged manipulation was the angel claim, and the express reference to that was impermissible in this context. He submitted that the directions effectively mixed the legal directions with aspects of the factual summing up, whereas they should have been kept separate, and that this unsatisfactory mixture was exacerbated by the failure by the Judge to make it clear that the ultimate question for the jury was “have the prosecution made you sure that C was not capable of consenting”?

However, this was not a case about C’s capacity to consent, and therefore the question as framed by Mr Rosser was not the ultimate question for the jury. The prosecution case was that as a consequence of the grooming, she submitted when she did not have the freedom to make a choice. Therefore, the ultimate question for the jury on this limb of the offence was whether the prosecution had made them sure that C did not genuinely consent to the sexual intercourse, as the judge made clear when he directed them that: “this is conduct you can take into account in deciding whether there was no genuine consent”. The directions, taken as a whole, can have left the jury in no doubt that this was what they had to decide.

This was precisely the kind of case in which the jury required judicial assistance in a difficult area of the law. Therefore, the judge was entitled to descend into the level of detail that he did, though the directions that he gave were not structured as well as they might have been (in consequence of which they were at times repetitive). Although it would have been possible to use simpler and clearer language, the judge cannot be criticised for adopting the language used by this court in the key passages in Ali. All the factors that the judge suggested the jury might wish to take into account were legitimate considerations, and the judge made it sufficiently clear that it was up to the jury to decide whether to take them into account or not.

Overall, whilst they were far from perfect, the judge’s directions were adequate; they followed the guidance in Ali, they were balanced and made it sufficiently clear that the issue as to whether the consent was genuine was a matter for the jury. On a fair reading his directions do not suggest that the jury were obliged to make any particular fact-findings or give weight to any aspect of the prosecution case. It was perfectly proper for the judge to draw attention to aspects of the prosecution’s case that, if the jury accepted them, might have a bearing on the issue of consent and help them to decide that issue. We consider that there is nothing in this ground to give rise to any concern about the safety of the conviction.

That leaves Ground 1, which focuses on the way in which the written route to verdict directed the jury in respect of the issue of reasonable belief in consent. The route to verdict in respect of the counts of rape, in its original form, posed four questions:

“Q1 – Did the defendant intentionally penetrate [C]’s vagina with his penis?

If yes go to Q2

If No – verdict not guilty.

Q2 – are we sure that at the time of the penetration [C] did not consent?

If yes go to Q3

If no – verdict not guilty.

Q3 At the time of the penetration did the defendant genuinely believe or may have genuinely believed that [C] consented?

If yes go to Q 4

If no – verdict not guilty.

Q4 – If the defendant did or may have believed that [C] consented, was the defendant’s belief reasonable?

If yes, verdict not guilty

If no, verdict guilty.”

The obvious error in Q3 was not spotted by prosecution and defence counsel when the judge went through the draft directions and route to verdict with them, although in fairness to counsel, that exercise appears to have been conducted at some speed in a period of around an hour just before the lunch adjournment on the day in question. It is also far from clear how much time they were given by the judge to look through the draft in advance. However, the jury sent a note to the judge after they retired which asked: “Route to verdict, can we have clarification on question 3 on count 14 of rape? If yes, go to question 4, if no verdict not guilty. Surely a no response would constitute rape?” The judge and both counsel agreed that the jury were right about that, which of course they were, and the route to verdict was withdrawn and replaced by a corrected version which indicated that on counts 14 and 15, if the answer to Q3 was “no” the verdict would be “guilty”.

It was common ground that the directions that were given were not the same as the specimen directions in the Crown Court compendium. Whilst of course the specimen directions do not have to be followed verbatim, the directions should follow both the spirit and the substance of Section 1(1) of the Sexual Offences Act 2003 which sets out each of the ingredients of the offence which the prosecution must prove. Mr Rosser submitted that on both questions 3 and 4 in the route to verdict, the judge’s directions had the unhappy consequence of reversing the burden of proof. The jury should have been directed to ask themselves “are we sure that the defendant did not believe that [C] consented”? If the answer was yes, the verdict would be guilty, if the answer was no, they should move to question 4. The correct formulation on that question should have been “are you sure that the defendant’s belief in C’s consent was unreasonable”? and they should have been directed that if they concluded that his belief was or may have been reasonable, they must acquit.

Mr Rosser submitted that the failure to reflect the burden of proof in the directions was all the more egregious because other written directions were couched in the language of “are we sure” – including the direction given in the route to verdict on Count 13, of which the appellant was acquitted. Consequently, there was a very real risk that the jury did not apply the correct legal test in respect of reasonable belief in consent.

As Mr Rosser pointed out, the issue of reasonable belief in consent was critical, because the appellant had given evidence that “[C] definitely consented; I would not have gone forward if I thought otherwise”. There was other evidence, including in the text messages, which supported the defence case that the appellant had deliberately waited until after C turned 16 (and thus was capable in law of consenting) before they had full vaginal intercourse. Mr Rosser submitted that the failings in the route to verdict were not cured by the general directions given on the burden and standard of proof, nor by the judge’s other written legal directions, which if anything enhanced the impression that it was for the defendant to prove that he had a reasonable belief in C’s consent.

We accept that the formulation of Q3 and Q4 was sub-optimal. It is understandable why the previous constitution of this court was sufficiently concerned by it to give leave to appeal on this ground. However, despite the absence of any overt reference to the burden of proof, Q3 has built into it the possibility that the defendant may have believed that the complainant consented. It made it clear to the jury that if they decided that was the case, they should go on to consider Q4. It follows that it was only if they eliminated the possibility that the defendant may have had such a belief that they would convict. The note from the jury which corrected the original error indicates that they understood that perfectly well. Moreover, the first part of Q4 reiterates that the question of reasonableness of belief arises in the context of a situation where the defendant may have believed C was consenting to intercourse (i.e. a situation in which the prosecution has failed to prove that he did not believe it) and not just in a situation where he did believe it.

The remainder of Question 4 is put in terms of: “was the defendant’s belief reasonable?” True it is that it does not refer to the possibility that his belief “may” have been reasonable in the way in which the specimen route to verdict in the Crown Court Compendium does. However, the question whether someone’s belief in consent is reasonable or unreasonable is a binary one, answered by the application of an objective standard. Either it is reasonable, or it is not. Ultimately that is what the jury has to decide; if they are unsure, the defendant gets the benefit of the doubt. In this context, Mr Gledhill drew attention in the Respondent’s skeleton argument to the two questions for the jury to address when considering reasonable belief in consent that are posed in the sample direction in the Compendium:

Mr Gledhill also pointed out that when the judge set out in his legal directions to the jury on Counts 14 and 15 the individual elements of the offence of rape which the prosecution must prove, he expressly directed them that that the next ingredient after lack of consent is that [the defendant] “knows that the woman does not consent to the penetration or does not reasonably believe that she was consenting.” The judge then went on to say that “the defendant will have a defence if he genuinely and reasonably believed that there was consent by [C] and reasonable grounds existed for such a belief. In determining whether the defendant believed that there was consent you, the jury, are entitled to consider all the circumstances and any steps the defendant has taken to ascertain whether she did consent.” Those directions were given in the course of a summing up which contained, at the outset, the usual directions on the burden and standard of proof and made it clear to the jury that the defendant was not required to prove anything.

Overall, we are satisfied that the jury was not led into error by the route to verdict. The combination of the references to “may have believed” in both Q3 and Q4, and the note from the jury suffices to reassure us that the verdicts on Counts 14 and 15 are safe. The note, in particular, demonstrates that the jury were working properly through the directions and were alive to the issues in the case and where the burden of proof lay. There is also some force in Mr Gledhill’s point that before they even reached Q3 and Q4 the jury would have had to have been sure that C did not genuinely consent, which in turn means that they are bound to have accepted the prosecution case on prolonged and constant grooming and the impact that this had on her freedom to consent. Thus the jury would have had to have formed the view that the appellant’s behaviour in bringing about C’s utter dependency on him was deliberate and calculated, and in those circumstances, it would have been irrational to conclude that any belief by him that she consented was reasonable.

We have concluded that despite the deficiencies in the route to verdict, the convictions are safe. However, and whilst it may not be necessary to preface every question in a route to verdict with “are you sure that …”, this case illustrates the importance of trial judges subjecting their routes to verdict to careful scrutiny, to ensure that there is no room for interpreting them as reversing the burden of proof. It is equally important to allow both prosecuting and defence counsel sufficient time to read and digest the draft directions to ensure that collectively every opportunity is afforded to leave no room for misunderstandings of that nature.

It follows that the appeal against conviction is dismissed on all three grounds.