Neutral Citation Number: [2010] EWCA Crim 1929
Case No. 2009/06292/C4

IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Tuesday  15  June  2010

B e f o r e:

LORD  JUSTICE  GOLDRING

MR  JUSTICE  WILKIE

and

HIS  HONOUR  JUDGE  LORAINE-SMITH
(Sitting as a Judge of the Court of Appeal Criminal Division)

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R E G I N A

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GAVIN  WHITE
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Miss A Ginn appeared on behalf of the Appellant

Mr G Perrins appeared on behalf of the Crown
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J U D G M E N T

LORD JUSTICE GOLDRING:  
1.  On 29 October 2009, in the Crown Court at Peterborough, the appellant was convicted of assault by penetration contrary to section 2(1) of the Sexual Offences Act 2003.  He was subsequently sentenced to two years' imprisonment.  Having been convicted of an offence listed in Schedule 3 to the Sexual Offences Act 2003, he was required to comply with the provisions of Part 2 of the Act (notification to the police) for ten years.  He was also disqualified indefinitely from working with children.  That part of the sentence, it is agreed by both prosecution and defence, was inappropriate in the circumstances.
The appellant appeals against both conviction and sentence by leave of the single judge.

2.  On 30 April 2008 the appellant took some intimate photographs of the complainant on his mobile telephone.  One image showed the complainant's vagina being penetrated by two of his fingers.  On 20 November 2008 he sent the photographs via a text message to the complainant.  By then he had transferred the images from his original mobile phone to another one.  

3.  It was the prosecution's case, and the complainant's evidence, that in 2008 there was no sexual relationship between the two of them, although there had been.  It had ended initially in 2005, had resumed in 2007, and had ended it was said, in late 2007.  The complainant said that until she received the images she knew nothing about them.  She did not consent to the photographs being taken.  To her knowledge no photographs were taken.  She did not consent to the digital penetration depicted.  The photographs must have been taken when she was asleep.  Two of the images depicted a condom.  In cross-examination the complainant agreed that the images could have been taken after an act of consensual sexual intercourse.  There had been occasions when she had consented to sexual intercourse with the appellant when she had been drinking alcohol. 

4.  The appellant's case was that the complainant had consented to the digital penetration and the photographs being taken.  She had posed for them.  There was no question of her having been asleep.  The day after they were taken she had looked at them.  In September 2008 she and the appellant had argued.  As a result, a number of the photographs were deleted.  Those saved and later transferred to the second mobile phone.  Between 10 and 12 November he sent the photographs because at that time the complainant was not talking to him and he thought she would respond.

5.  The sole issue in the case was consent.  The basis of the appeal is that twice, once in the course of his summing-up and once in response to a question from them, the judge misdirected the jury in relation to section 75 of the Sexual Offences Act 2003.  The prosecution accept the judge did twice misdirect the jury.  The prosecution submit that the conviction is nonetheless safe.

6.  Section 2 of the Sexual Offences Act 2003 provides:

"A person (A) commits an offence if --

(a)he intentionally penetrates the vagina…of another person (B) with a part of his body…,

(b)the penetration is sexual,

(c)B does not consent to the penetration, and 

(d)A does not reasonably believe that B consents."

"Consent" is defined by section 74 of the 2003 Act.  It provides:

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

Section 75, deals with "Evidential Presumptions about Consent." It provides:

"(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 reasonably believed it.

(2)  The circumstances are that --

....

(d) The complainant was asleep…at the time of the relevant act."

7.  In his summing-up the judge made it clear that the essential issue in the case was consent.  He referred the jury to the two aspects in relation to it: first, that there was evidence that the complainant had been drinking; and second, the evidence concerning her having been asleep.  He said that consent had freely to be given and could be withdrawn at any time.  He reminded them that it was the act of digital penetration which they had to be sure was carried out without the complainant's consent.  He said:

"If you find as a fact that the complainant was not asleep then what I say now can be ignored.

That means, if you find as a fact that the defendant is or may be telling the truth that the complainant was not asleep, ignore the following direction.

However, if you conclude that the complainant was asleep, the Act states as follows ...."

The judge then set out the words to which we have just referred in section 75.  He continued:

"In simple terms, that means that if you are satisfied that she was asleep, the law places an evidential burden on the defendant to satisfy you, on the balance of probabilities, that he had a reasonable belief the complainant was consenting."

The judge did not explain what an "evidential burden" was or how the jury was to approach it on the facts of the case.  Assuming it was necessary to give the direction at all, that was less than helpful. 

8.  Following their retirement the jury asked a question.  It was in these terms:

"If she gave consent beforehand and then fell asleep during the photo preparation, is the consent still current?"

In response to the jury's question the judge repeated what he had previously said.  At the instigation of the prosecution he reminded the jury of section 75 in exactly the same terms as before. They were not told how, in the light of the factual assumptions in the question, they were to approach the evidential burden. The jury must have found the further directions baffling.

9.  There is no doubt, as the prosecution accepts, that sufficient evidence was adduced to raise the issue either that the complainant consented to the digital penetration or that the appellant reasonably believed that she did.  The appellant had said so.  On the basis of the jury's question, the complainant had in terms agreed to the digital penetration and the taking of photographs but had fallen asleep while the agreement was brought into effect.  It was not necessary or in the circumstances appropriate for the judge to give a section 75 direction.

10.  It seems to us that the position is correctly summarised at paragraph B3.19 of the current edition of Blackstone, in which it is said:

"Section 75 of the SOA 2003 lists circumstances in which the complainant is taken not to have consented to the relevant act unless sufficient evidence is adduced to raise an issue as to whether the complainant consented.  Also the accused 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 reasonably believed it.

There must be some foundation in the evidence and it must not be merely speculative or fanciful for there to be sufficient evidence.  However, it is vital to understand that if the trial judge decides (presumably at the close of the evidence) that there is sufficient evidence to raise an issue as to whether the complainant consented and/or the accused reasonably believed that the complainant was consenting, then the judge will put the issues to the jury in accordance with the key sections (ie 74 and 1(2)), and the section 75 route is barred.  In the relatively rare cases where the judge decides that there is not sufficient evidence on one or both of the issues, a section 75 direction must be given on that issue."

11.  On the facts of this case, the direction should not have been given in the body of the summing-up. It plainly should not have been given in answer to the jury's question.  Moreover, R v Zhang [2007] EWCA Crim 2018, which was drawn to our attention by the prosecution, is irrelevant.  It was decided on its own facts and in the light of the summing-up there being considered.

12.  In our view, it cannot be said this conviction is safe.  The judge initially directed the jury inappropriately and in a way which it must have found very difficult to understand.  He never explained how the appellant could discharge the burden which was said to be placed upon him.  He again directed them inappropriately in response to the jury's question.  In neither direction did he tailor what he said to the facts, or, in relation to the question, the facts assumed within it.  It seems to us the correct answer to the question would have been that the appellant would have a defence in those circumstances.  The jury may well have had the impression that they could convict once they were sure the complainant was asleep.  

14.  For the reasons we have indicated we have concluded that in all the circumstances the conviction was unsafe.

15.  We should add this.  As has been accepted before us, the judge did not have the help from counsel he should have had.  The prosecution suggested that there should be a section 75 direction when there should not have been.  It repeated that suggestion following the jury's question.  Throughout defence never demurred.