R v Ciccarelli [2012] 1 CR App R 190
Intoxication – Rape – Consent – Reasonable Belief to Consent – s75 Sexual Offences Act 2003 – Prosecution Have Burden to Disprove Consent Evidence
Facts
The incident took place at a house party with the complainant in attendance, as well as the defendant and his girlfriend. They had met three times before the party, where no acts or instances indicated there was an attraction or relationship between them. The defendant had alcohol at the party, as well as a suggestion of drugs. The complaint was intoxicated and fell asleep in the defendant’s spare room. She woke up to find the defendant on top of her and she told him to get off. While the defendant admitted the incident happened, he argued that he had reasonable belief she had consented, pointing to her behaviour at the party and supposed sexual advances towards him.
Issues
The defendant pled guilty to sexual assault, but appealed conviction. The trial judge had held there was not enough evidence for reasonable belief of consent in this case. The issue was whether there was sufficient evidence for reasonable belief of consent under s75 of the Sexual Offences Act 2003 and if this should have been left to the jury.
Decision/Outcome
The appeal was dismissed. The Lord Chief Justice stated on behalf of the Court that there was not sufficient evidence of reasonable belief to consent from the party under s75 of the Sexual Offences Act 2003. This evaluation of the evidence by Jude Mowat had been justified. When there is sufficient evidence in a case, the prosecution would have the burden to disprove consent. But, this evidence concerning consent had to more than speculative.
Updated 20 March 2026
This case note is broadly accurate in its summary of R v Ciccarelli [2011] EWCA Crim 2665 (also reported as [2012] 1 Cr App R 190). The Court of Appeal upheld the trial judge’s withdrawal of the reasonable belief defence from the jury, confirming that there must be an evidential foundation for reasonable belief in consent beyond mere speculation before the issue can be left to the jury.
One point of clarification: the operative statutory provisions are sections 1 (rape), 74 (definition of consent), and 75 (evidential presumptions) of the Sexual Offences Act 2003. The case note’s repeated reference to s75 as the source of the reasonable belief requirement is slightly imprecise — the reasonable belief in consent element derives from s1(1)(c), while s75 concerns specific rebuttable presumptions. However, the broader legal principle discussed — that there must be sufficient evidential basis before a reasonable belief defence is left to the jury — remains good law and continues to be cited and applied.
The Sexual Offences Act 2003 remains in force in its relevant parts. There have been no subsequent statutory amendments that materially alter the principles discussed. Readers should note that ongoing policy and legislative debate around consent and reasonable belief continues, but as of the date of this note, the law as described in this article has not been changed by Parliament or overruled by a higher court.
