R v Bree (Benjamin)

Mr Patterson, we have reached a conclusion. We shall quash your client's conviction. We shall give our reasons for quashing the conviction at a later date.

That raises the question of whether there is anything further to be done with this case, Mr Tucker?

At present the complainant is unaware of the appeal. This will have to be canvassed with her. My anticipation is that, if she was prepared to give evidence again, it would be the prosecution's intention to seek a retrial.

Is there any reason why the appellant should not be admitted to bail pending that decision and pending our reasons for our conclusion?

I can think of no compelling reason.

Very well. Stand up, Mr Bree. Mr Bree, we are quashing your conviction, we shall give our reasons later.

Listen carefully to what I am going to say. I do not know what decision will be made by the prosecution about whether they will want another trial. I therefore do not know what our decision will be if they ask us that they should have another trial. So that possibility is still open. In the meantime, however, you will be admitted to bail on the same conditions as you were on bail before the trial began. Do understand that?

When we come to give our reasons for our decision, you do not have to be here, but it might be sensible for you to be here, if you can be here, simply so that you know the position about whether or not there will be another trial. There may be—I do not know this—there may be something you want to say to your barrister if the prosecution ask for another trial, to suggest why they should not be allowed to have one. I think, if you can be here, it might be in your own interest but we are not ordering that you should be.

THE ASSOCIATE: I am sorry, my Lord, in fact you cannot quash the conviction and put off the decision for a retrial. I think all you can do is give an indication that you will be quashing the conviction.

I am sorry, we are quashing the conviction.

Very well. Do you understand what I have said? The judgment will be prepared and made available as soon as possible. Thank you, Mr Patterson, thank you Mr Tucker.

Hearing dates: 13 TH March 2007

President of the Queen's Bench Division

On 26 October 2006, in the Crown Court at Bournemouth, before HHJ Jarvis and a jury, Benjamin Bree, a 25 year old man of excellent previous character, was convicted of rape. There was no dispute that, after a very heavy evening drinking together, he had sexual intercourse with a young woman aged 19 years whom we shall identify as “M”. This appeal required us to address the effect of voluntary heavy alcohol consumption as it applies to the law of rape. After the hearing on 13 ^th March we quashed the conviction. These are our reasons.

The Facts

At the outset of the case, the prosecution invited the jury to convict the appellant on the basis that through self-induced voluntary intoxication, M was effectively unconscious throughout most of the sexual activity, and lacked the capacity to consent. Her evidence was to a different effect. We must therefore set it out in some detail.

On 4 ^th February 2006, the appellant visited his brother, Michael, who was a student at university in Bournemouth. Michael's flat was shared with five other students. One of them was the complainant, M, another student. Each had a separate room with its own en-suite facilities.

The appellant and M had met on a previous occasion. She was invited to spend the afternoon with the appellant and Michael, but was not interested. Later she agreed to join them, and Michael's girlfriend, Holly, for the evening. They all drank a considerable amount of alcohol, apparently buying round for round. M drank two pints of cider, and, over the evening, between four and six drinks of vodka mixed with Red Bull. The appellant, who had been drinking earlier in the day, drank two pints of lager, and then he too moved on to vodka and Red Bull.

Michael and Holly were the first to leave, but they were followed soon afterwards by the appellant and M. They returned to her flat. CCTV coverage showed the appellant and M returning to her flat, arm in arm M could not remember very much about the return journey, but accepted that she must have been conscious as she walked home, and she had all the necessary fobs, keys and passes which she used to gain entrance for them both.

Both girls were badly affected by drink. Holly was sick in the kitchen. M was sick in the shower in her room. She recollected lying on the floor and vomiting. According to her evidence she had only once vomited before as a result of alcohol, and whereas on the previous occasion she had “thrown up” just the once, on this occasion she was continually throwing up.

The appellant and Michael looked after the two girls. M remembered one of the two brothers (in fact it was the appellant) asking her where he could find some shampoo, and washing her hair. There was no suggestion of any sexual activity at this stage. The appellant was behaving unselfishly. After she was asked for the shampoo, M had no particular memory of her hair being washed, and by then, according to her evidence, she became unconscious.

M's next memory, as narrated to the jury, was that she was lying on her bed, but unable to recollect how she got there. She said that the appellant was on the bed with her, his upper body on her lower body, his face between her legs, with his mouth and tongue on and in her vagina. She did not consent. “I did nothing or said anything in response. I felt as if I wasn't in my body. I hadn't recovered significantly from how I felt in the bathroom, and I didn't know how long his mouth was in my vagina. I remember his fingers in my vagina. I could just feel this. I don't know where his head was. The next thing I recall is his coming close by my face and asking if I had a condom. I said no”. She said that she did not want to have sex, but she did not say so to him. She felt “like it wasn't happening. I knew I didn't want this but I didn't know how to go about stopping it.” She was not co-ordinated in her body. She remembered his penis in her vagina, when she was on her back. She recalled penetration, and pain, and she said “ow”. At another point she made some kind of noise which led the appellant to say “shush”. To try and avoid sexual intercourse she turned over. She was curled in a ball facing the wall. Although his penis was withdrawn for a while, he penetrated her again. She had no idea how long intercourse lasted. When it ended she was still facing the wall. She did not know whether the appellant had in fact used a condom or not, nor whether he ejaculated or not. Afterwards he asked if she wanted him to stay. She said “no”. In her mind she thought “get out of my room”, although she did not actually say it. She didn't know “what to say or think, whether he would turn and beat me. I remember him leaving, the door shutting.” She got up and locked the door and then returned to lie on her bed curled up in a ball, but she could not remember for how long.

M accepted that her recollection of events was “very patchy”. She did not know a great deal about what had gone on, and she agreed that she did not say “no” to sexual intercourse, although she did remember saying “no” when asked if she had a condom. She agreed that there were periods during the incident of which she had no recollection, and so she could not say whether she was responding to the appellant's advances or giving him encouragement. Her case remained that she was not consenting to sexual activity with him.

M's next action was to telephone a friend, Naomi. It was about 4.52am. According to Naomi, the conversation was marked by tears and crying, and to begin with it was difficult to understand what M was trying to tell her. M gave some account of the evening's events, and complained that she had been “used”. She said that when she woke up she was 100% sure that she had had sex. She did not use the word “rape”. Without going into the details any further than necessary, she eventually telephoned her mother, who gave evidence of a complaint of rape, and there was a subsequent conversation with another witness on the telephone complaining that she had been raped.

Medical evidence was put before the jury on an agreed basis. Based on a full examination of M, this evidence did not advance or undermine the Crown's case.

After the incident was reported to the police, the appellant was arrested. He appeared to the arresting officer to be...