R v Bree  EWCA Crim 256
A Detailed Case Summary
The defendant, Bree (B), visited his brother at University and went for an evening out with him and others, including the complainant (C). Both B and C consumed considerable quantities of alcohol, before returning to B's brother's home. Whilst C's memory from this point is poor, she recalls vomiting and having B and his brother help wash the vomit from her hair. Her next memory is of her and B having sexual intercourse. C contended that, although she had not specifically said 'no' to intercourse, she had not consented. B contended that he had reasonably believed she was consenting as she had undressed herself, appeared willing and been conscious throughout the event.
History of the Case
At first instance, B was convicted by the Court of rape under the Sexual Offences Act 2003 s.1, on the grounds that C had not consented to sexual intercourse. Notably, at first instance, the Crown initially contended that C had been unable to consent as she was unconscious for much of the event. However, following the delivery of evidence at trial, the prosecution's approach changed to submit that C did have the capacity to consent, and had made it as clear as possible, given her inebriated state, that she did not consent to sexual intercourse with B.
B successfully appealed this decision to the Court of Appeal, and was ultimately not convicted of rape.
The issue of appeal, as brought by B, was that at first instance the Court had not clarified to the jury that a person may still be capable of consenting, even where voluntarily heavily intoxicated. Rather, B viewed that the Court had implied heavy intoxication sufficed to remove one's capacity to consent, regardless of other factors. This would be contrary to the law on consent in the Sexual Offences Act 2003.
The Court of Appeal upheld B's appeal, making two main points.
First, the Sexual Offences Act 2003 s.74 defines consent as where a person:
"... agrees by choice, and has the freedom and capacity to make that choice" (Sexual Offences Act 2003, s.74).
Where a person loses their capacity to consent due to intoxication, they indeed cannot consent. However, it is possible that a person may be heavily intoxicated, having voluntarily consumed a large quantity of alcohol, and still be capable of deciding to have intercourse. Further, the specific facts of each case must be examined in deciding whether consent is deemed to have been given, alongside the mental states of the defendant and complainant. Simply being intoxicated does not remove one's ability to consent, and equally, simply to be conscious does not mean one has the capacity to consent. Sir Igor Judge commented that:
"[W]hen someone who has had a lot to drink is in fact consenting to intercourse, then that is what she is doing, consenting: equally, if after taking drink, she is not consenting, then by definition intercourse is taking place without her consent." (R v Bree  EWCA Crim 256 [a])
Secondly, that the Court at first instance had failed to properly direct the jury as to the legal matters relevant to this case. Specifically, little or no guidance had been given on how consent is examined in the context of voluntary heavy intoxication, despite this being crucial to delivering a verdict. Further, little or no guidance had been given on dealing with the Crown Prosecution's significant change in approach, as occurred during the case. Subsequently, it was unclear whether the jury still believed C to be unconscious at the time of the sexual activity. The Court of Appeal was critical of the earlier Court for failing to establish that alcohol may alter someone's behavior, and heavy intoxication does not automatically mean a person cannot consent. R v Olugboja  QB 320 ought to have been applied, and the central issues regarding consent mentioned and summarised for the jury's benefit.
Related Case Law and Developments
R v Bree has been followed in subsequent case law and remains valid. Further, it has had impact on the Code for Crown Prosecutors, which was subsequently updated to emphasise the Appeal Court's findings. The Code now reminds prosecutors to pay particular attention to all the relevant facts in a specific case in assessing a person's capacity to consent in a rape case involving intoxication due to alcohol or drugs. The importance of reminding the judge, where necessary, to properly instruct the jury on such matters is also reiterated.
The benefits of this approach have been stressed by other commentators, such as the highly-regarded Rook & Ward who note that rape cases involving heavy intoxication by either one or both parties tend to be
'... so fact specific, [and] there are dangers to slavishly following a prescriptive specimen direction' (On Sexual Offences 2010, 4th edition, para 1.131).
Nonetheless, his decision has also been the focus of notable criticism from many legal commentators, such as Wallerstein (Crim L J 2009, 73(4), 318, 343) arguing that the understanding provided of the definition of consent fails to bring about the change hoped for in reforming this area of the law, specifically to increase the number of convictions for rape. Such criticisms also note that this case follows the decision in R v EB  EWCA Crim 2945 in which it was found that a person's failure to mention their status as HIV positive did not vitiate another's consent to engage in sexual intercourse with them, which would subsequently have made any sexual intercourse rape. There is subsequently a view held by some, including Wallerstein (aforementioned), Elvin (Crim L J 2008, 72(6), 519) and Simpson (Crim L J 2016, 80(2), 97), inter alia, that the current definition and construction of consent under the Sexual Offences Act 2003 is somewhat weak and is failing to provide adequate protection and justice to the victims of sexual offences.