Practice and Procedure

Evidence of consent

PUBLISHED December 13, 2011

Court of Appeal, Criminal Division Published December 13, 2011

Regina v Ciccarelli

Before Lord Judge, Lord Chief Justice, Mr Justice Butterfield and Mr Justice Henriques Judgment November 3, 2011

In order to raise the defence that the defendant reasonably believed that the complainant had consented, even though she was asleep, to being touched sexually by him, his asserted belief was not sufficient to raise the issue; there had to be some evidence that the belief was reasonable.

The Court of Appeal, Criminal Division, so held when dismissing an appeal by Yuri Ciccarelli against his conviction on July 27, 2011, at Reading Crown Court, before Judge Mowat, on his plea of guilty to sexual assault, contrary to section 3 of the Sexual Offences Act 2003, following the judge?s ruling that the defendant could not have reasonably believed that the complainant consented.

Miss Kate Mallison, assigned by the Registrar of Criminal Appeals, for the defendant; Ms Philippa Page for the Crown.

THE LORD CHIEF JUSTICE, giving the judgment of the court, said that it was not in dispute that the defendant sexually assaulted the complainant when she was asleep and when he knew that she was asleep.

The only question was whether sufficient evidence had been adduced for the issue whether he reasonably believed that the complainant consented to him touching her sexually to be raised. If there was, the issue would be left to the jury.

The defendant said that he believed she was consenting because, according to his account, she had made an advance to him earlier in the evening in a different place.

The judge addressed her attention to section 75 of the 2003 Act, both the evidential presumption about consent and the circumstances in which issues about the evidential presumption arose for consideration. She concluded that there was no evidence on which the defendant could advance an argument that he reasonably believed the complainant would have consented to him touching her if she had been awake so that it was reasonable for him to have believed she consented while she was asleep. She ruled that that could not conceivably be a reasonable belief.

The basis of the submission that the judge?s ruling was wrong was encapsulated in the proposition that it was enough for the defendant to have given the evidence that he believed the complainant was consenting. The difficulty with that submission was that it was not what section 75 provided. There had to be some evidence that the belief was reasonable.

The issues of a defendant?s reasonable belief in the complainant?s consent, either when she was asleep or in any other of the positions of disadvantage identified in section 75(2), would be considered by the jury provided that there was evidence which was sufficient to raise that issue.

On the facts of the present case the judge?s conclusion that the evidence did not raise any issue for the consideration of the jury was entirely justified.

Solicitors: Crown Prosecution Service, Appeals Unit 2.