R v B [2013] EWCA Crim 3 concerned the effect of mental illness on a defendant’s belief that his partner consented to sexual intercourse. The Court of Appeal held that an irrational delusion could not make such a belief reasonable under the Sexual Offences Act 2003. It also dismissed challenges to common-assault and criminal-damage convictions, explaining why the relevant tests differed between offences.
Facts and the appeal
The appellant was convicted at Chelmsford Crown Court of two counts of rape, two counts of common assault and criminal damage to his partner’s house. He was acquitted of other rape and assault counts. There was evidence that he had been suffering from paranoid schizophrenia, or possibly schizo-affective disorder, and held delusional beliefs at the time of the offences.
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His partner’s evidence was that, on the two occasions resulting in rape convictions, she had objected to intercourse but submitted to his insistence. The assault convictions concerned spitting at her and physically forcing her to eat a mixture he believed would benefit her. The damage concerned dismantling her doorstep without consent.
The appellant did not give evidence, although he was fit to do so. His case relied on answers he had given in police interviews and suggestions put to the complainant. He maintained that intercourse had been consensual, denied the assaults and said she had agreed to the work on the doorstep. A psychiatrist gave evidence about his illness and delusions.
The test for belief in consent
Under section 1 of the Sexual Offences Act 2003, the prosecution must establish that the complainant did not consent and that the defendant did not reasonably believe in consent. Section 1(2) requires reasonableness to be assessed in all the circumstances, including any steps taken to ascertain consent. The Court distinguished three questions: whether she consented; whether he believed she consented; and, if so, whether that belief was reasonable.
The trial judge directed the jury that a delusional belief produced by the appellant’s mental illness could not be reasonable. The appellant argued that the jury should instead have been left to assess reasonableness by reference to his individual circumstances, including his illness.
Once reasonable belief was sufficiently raised, it was for the prosecution to disprove it. The fact that the appellant did not testify did not remove that burden. His general assertion in interview that he never had intercourse without consent, together with the evidence of his illness, was sufficient to raise the issue.
Why the rape convictions stood
The Court’s first reason was evidential. The psychiatrist had not suggested that the illness prevented the appellant from understanding that his partner was saying no. The evidence might explain why he thought he had a reason to insist on intercourse, but that was different from believing she agreed to it. The suggestion that he had mistaken frightened submission for consent was unsupported speculation. On that basis alone, the convictions were safe.
The Court also rejected the proposed legal approach. Even if a delusion had led him to believe in consent, an irrational belief could not become reasonable because a mental disorder explained it. The question was whether the belief in consent was reasonable, not whether the illness was understandable or the appellant’s fault.
This reflected a deliberate change in the law. Under the former law, a genuine belief could suffice even if unreasonable. The 2003 Act required both genuine belief and reasonableness. Unless the defendant’s state of mind amounted to insanity in law, a delusional psychotic illness or personality disorder could not supply the missing reasonableness of a belief that could not reasonably arise without it.
The qualification: reading social signals
The Court did not hold that every personal characteristic or impairment was irrelevant in every case. It expressly left open whether a belief involving difficulty interpreting subtle social signals, limited intelligence or an impaired ability to recognise behavioural cues could be reasonable on particular facts.
The distinction was between a belief that was not necessarily irrational and one that could be called reasonable only by treating an irrational delusion as reasonable. The former required consideration in a suitable future case; the latter fell outside the statutory test. Mental illness also remained relevant to sentencing. It was therefore too broad to treat the judgment as excluding every possible effect of mental impairment on criminal responsibility.
Assault, damage and the result
The assault challenge failed. Believing that food would benefit another adult did not justify physically forcing that person to eat it. The discussion of hostility distinguished ordinary social contact from unlawful touching; it did not make a benevolent motive a general defence to an unwanted assault. The jury had found that the physical acts occurred.
Criminal damage involved a different rule. An honest belief that the owner consented, or would have consented if asked, could provide lawful excuse even if the belief was unreasonable. A delusion could be genuinely held. The trial judge had correctly explained that an honest belief need not be justified, leaving the jury able to consider the appellant’s actual belief. The appeal on that count therefore also failed.
The Court of Appeal dismissed the appeal against all the challenged convictions. It did not decide the hypothetical social-cue cases it had reserved. The judgment illustrates why the mental element and available excuses must be examined offence by offence rather than assuming that one test applies throughout criminal law.
Judgment source
Full Court of Appeal judgment, 31 January 2013. The published judgment anonymises the appellant as B and is indexed by BAILII as B v R. Parallel citations include [2013] 1 Cr App R 36 and [2013] WLR(D) 43.
