Whether a person can consent to sexual activity when intoxicated.
Facts
The defendant, Bree (B), visited his brother and went for an evening out with him and others, including the complainant (C). All present 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. Her next memory is of her and B having sexual intercourse. C contended that, despite not having specifically said ‘no’ to intercourse, she had still not consented. B contended that he had reasonably believed she was consenting from her actions and that she had been conscious.
Issue
B appealed his conviction for rape under the Sexual Offences Act 2003, s.1. on the grounds that that at first instance the Court had not clarified to the jury that a person may still be capable of consenting under the Sexual Offences Act 2003, s.74, even where they were voluntarily heavily intoxicated.
Held
The Court of Appeal upheld B’s appeal on two grounds.
First, where a person loses their capacity to consent due to intoxication, they indeed cannot consent. However, it is possible that a person may be voluntarily heavily inebriated, and still have the capacity to consent.
Secondly, the first instance Court failed to properly direct the jury as to the legal matters relevant in 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 the jury establishing a verdict.
Subsequently, the Crown Prosecutorial Code has been updated and much greater attention is paid to observing all the facts in determining one’s capacity for consent in a rape case involving heavy voluntary inebriation.
R v Kennedy (No 2) [2007] UKHL 38
Unlawful act manslaughter – causation – drug dealers / suppliers
Kennedy prepared a syringe for the victim, who injected himself and died of an overdose. Following several earlier cases, Kennedy was convicted of unlawful act manslaughter.
However, the reasoning ignored the problem of causation. Generally speaking, where a third party acts in a free, voluntary and informed way and causes the result, this will break the chain of causation for the original defendant. The act of the victim, in injecting himself with the drug, was a free, voluntary and informed action. Kennedy was not a secondary to an unlawful act of the victim, as injecting himself was not unlawful.
The House of Lords stated the law on drug dealers and unlawful act manslaughter very clearly, and thereby resolved several years’ of academic debate. The court ruled that where a drug dealer supplies drugs and the victim injects themselves and later dies, the drug dealer can never be guilty of unlawful act manslaughter, as the chain of causation is broken.
R v Evans [2009] EWCA Crim 650
Duty of care – drugs supply – gross negligence manslaughter
The victim was a drug addict. Her half sister obtained drugs from a dealer and supplied them to the victim. The victim overdosed and died. Evans was charged and convicted of gross negligence manslaughter.
The Court of Appeal held that Evans owed a duty of care to the victim to seek help for her. The duty owed was to counteract the situation which Evans had created by supplying the drugs. The appeal against conviction was dismissed.
Where a person dies after taking drugs, the supplier cannot be guilty of unlawful act manslaughter, but can, following Evans, be guilty of gross negligence manslaughter if they fail to ‘counteract the situation’ which they have ‘created’.
R v JTB [2009] UKHL 20
Defence – doli incapax – whether defence ever available to children aged between 10 and 14
Section 34 of the Crime and Disorder Act 1998 abolished the rebuttable presumption of criminal law that a child aged 10 or over is incapable of committing a criminal offence. The question for the House of Lords, when faced with a child aged 12 who had pleaded guilty to causing or inciting a child under 13 to engage in sexual activity, was whether section 34 had abolished the defence of doli incapax altogether in the case of a child aged between 10 and 14 years, or merely to abolish the presumption that the child had that defence, leaving it open to the child to prove that he was doli incapax.
The House of Lords held that the defence of doli incapax, and not merely the presumption, had been abolished completely by section 34 of the Crime and Disorder Act 1998.
R v EB [2006] EWCA Crim 2945
Sexual offences – consent – HIV status
Whether a person is guilty of rape if he has consensual sex with another without disclosing HIV status – is consent vitiated?
EB had sexual intercourse with the claimant. EB was HIV positive and failed to disclose this to the complainant. The question for the Court of Appeal was whether the apparent consent given by the complainant was ineffective as a result of EB’s failure to disclose his status.
The Court of Appeal held that a charge of rape could not lie in these circumstances. It was held that:
“Where one party to sexual activity has a sexually transmissible disease which is not disclosed to the other party any consent that may have been given to that activity by the other party is not thereby vitiated. The act remains a consensual act.” (at 17)
However, this ruling does not mean that there is a defence to a charge resulting from harm created by the sexual activity (ie passing on HIV), but only relates to consent in sexual offences
Updated 19 March 2026
This collection of case summaries remains broadly accurate as statements of the law decided in each case. The following points should be noted by readers:
R v Bree [2007] EWCA Crim 256: The legal principles set out remain good law. The reference to the “Crown Prosecutorial Code” being updated is slightly imprecise — the relevant document is the Code for Crown Prosecutors, published by the Crown Prosecution Service. The CPS has also published detailed guidance on rape and sexual offences, including capacity to consent and intoxication, which supplements the position described here.
R v Kennedy (No 2) [2007] UKHL 38: The summary is accurate. This remains the leading authority on unlawful act manslaughter and drug supply causation.
R v Evans [2009] EWCA Crim 650: The summary is accurate and the distinction drawn between unlawful act manslaughter and gross negligence manslaughter in the context of drug supply remains good law.
R v JTB [2009] UKHL 20: The summary is accurate. The abolition of the doli incapax defence by section 34 of the Crime and Disorder Act 1998 as confirmed by the House of Lords remains the legal position. Readers should note, however, that the age of criminal responsibility in Scotland was raised to 12 by the Age of Criminal Responsibility (Scotland) Act 2019, and there has been ongoing political and academic debate in England and Wales about whether the age of criminal responsibility (currently 10) should be raised, though no legislative change has been made in England and Wales as of the date of this review.
R v EB [2006] EWCA Crim 2945: The summary is accurate. Non-disclosure of HIV status does not vitiate consent for the purposes of rape under the Sexual Offences Act 2003. Potential criminal liability in respect of transmission of infection continues to be addressed through offences under the Offences Against the Person Act 1861 (as confirmed in R v Dica [2004] and subsequent cases), consistent with what the article states.
