R v Watson [2015] EWCA Crim 559
The nature of the direction to be given on consent for the purposes of rape under Sexual Offences Act 2003, s 1
Facts
Watson was convicted of two counts of rape and two counts of assault by penetration. The complainant was his adult daughter, who had been adopted shortly after birth. She contacted Watson as an adult and a sexual relationship began. The prosecution alleged that she did not consent on the occasions charged. Watson had separately pleaded guilty to three counts of sexual activity with an adult relative.
Issues
Did the trial judge correctly direct the jury on consent under section 74 of the Sexual Offences Act 2003? The appeal also challenged the judge’s treatment of the evidence in the summing-up.
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Decision/Outcome
In this judgment, the trial judge had stated that consent would only be present if a complainant had the freedom and capacity to make a choice and exercised that choice to agree to the activity. The trial judge also stated that consent could range from willing enthusiasm to reluctant acquiescence. No fault was found with this part of the judgment. However, the judge also asked the jury to consider whether the complainant was freely consenting or submitting to a demand she felt unable to resist. The Court of Appeal held that this final direction was misleading. A person can feel unable to resist a demand and still have the freedom and capacity to choose. The jury had to decide whether the complainant agreed by choice and had that freedom and capacity.
The court also found that the judge’s summing-up had failed to convey the significance of text messages central to the defence. It quashed the four convictions and the accompanying ten-year sentence. The guilty pleas on the separate counts stood. The court quashed the sexual offences prevention order and amended the restraining order.
