R v Hysa [2007] EWCA Crim 2056

Rape – Intoxication – Consent Evidence – s74 Sexual Offences Act 2003 – Consent for Jury at Trial


The complainant was a 16 year old girl who was celebrating the New Year in London. She had been drinking, as well as a suggestion of smoking cannabis, at the time of the incident. She had become separated from her friends and ended up in a car with several strangers. As she was intoxicated, she could not recall what happened with the defendant, but she believed she had not consented nor willingly engaged in the sexual activity that took place in the back of the car. The Defendant was charged with rape under s1(1) of the Sexual Offences Act 2003. It was held by the judge there was no case to answer.


The appeal of the prosecution concerned the issue of consent and the capacity to consent under s74 of the Sexual Offences Act 2003. The trial judge had held there was no case to answer and gave a direction to the jury that there was not enough clear evidence on consent for a safe conviction. The appeal concerned whether this instruction by the trial judge was correct.


The Court of Appeal held that the instruction given by the trial judge was incorrect and the ruling was quashed. There was sufficient evidence of rape in this case and Lord Justice Hallett stated that ‘issues of consent and capacity to consent to intercourse…should normally be left to the jury to determine’ [34]. The jury are to examine the evidence and circumstances of the incident to decide on the issue of consent and whether rape was committed. The case was remitted back to the jury, so they could hear the case.