Criminal Justice Act 2003, S. 124 and Evidence of Credibility
| Date | 01 June 2014 |
| DOI | 10.1350/1740-5580-78.3.210 |
| Published date | 01 June 2014 |
| Subject Matter | Court of Appeal |
The Journal of Criminal Law
210
conviction, nor, of course, leave clear the correct approach for a trial judge
with protagonists on similar facts.
Bree has become the primary authority where a dispute on consent as a
result of intoxication is the matter in issue, and the court in the present
appeal acknowledged this (at [17]). The court in Bree stipulated the
requirement for the jury to be guided on how to approach their very
difficult task, and the same court in R v Coates [2007] EWCA Crim 1471 at
[44] quickly took an identical position. What the court in Bree recognised
was that it was impossible to prescribe a matrix for the tribunal of fact to
follow and, in Coates, the court declined to mandate even the form that the
judge’s directions should take on the issue.
In the present appeal the court referred to and approved the manner in
which the trial judge had addressed the jury on what consent means and
in what circumstances relevant to intoxication it must be regarded to be
absent. Those directions were consistent with the guidance given for the
judiciary at para. 17.4 of the Crown Court Bench Book (Judicial Studies Board:
2010). The directions included the s. 74 definition and drew a link with
how that could not be satisfied if the complainant was unconscious. Partial
unconsciousness was explored. That some individuals retain the ability to
choose even after much drink was explained, as was the difference between
lower levels of inhibition following alcohol consumption than when sober.
With the absence of capacity, although not consciousness, the corresponding
absence of consent was explained, as was the relevance to the jury of the
degree of consciousness that the complainant was experiencing. Finally,
the jury was told that if the complainant had retained her capacity although
drunk, then the task for them was to determine whether, in that state, she
consented or may have consented to the sexual activity.
The trial judge did not use the phrase ‘a drunken consent is still a
consent’. The Court of Appeal has now expressly said that this omission
will not render a subsequent conviction in similar circumstances to be
unsafe if a full explanation of the issue has been provided to the jury.
Damian Warburton
Criminal Justice Act 2003, s. 124 and
Evidence of Credibility
R v Harvey (Shelton) [2014] EWCA Crim 54
Keywords Evidence; Hearsay; Bad character; Admissibility
Four appellants (W, X, Y and Z) appealed against their convictions for
aggravated burglary and firearms offences. Z was also charged with
intimidating a witness and perverting the course of justice.
It was the prosecution case that on 4 June 2011 the appellants had
entered the flat of the complainant (C) armed with guns with the intention
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