The meaning of ‘reasonable belief in consent’ under the Sexual Offences Act 2003 and the admissibility of bad character evidence under the Criminal Justice Act 2003: R v Hepburn [2020] EWCA Crim 820
| Author | Tony Storey,Brian Brewis |
| Published date | 01 October 2020 |
| Date | 01 October 2020 |
| DOI | http://doi.org/10.1177/0022018320965376 |
| Subject Matter | Case Notes |
Case Note
The meaning of ‘reasonable
belief in consent’ under the
Sexual Offences Act 2003 and
the admissibility of bad
character evidence under the
Criminal Justice Act 2003
R v Hepburn [2020] EWCA Crim 820
Keywords
Rape, reasonable belief in consent, inconsistent verdicts, bad character evidence
Alex Hepburn (H) was a professional cricketer with Worcestershire County Cricket Club. He shared a
flat in Worcester with a teammate, Joe Clarke (C). On Friday 31st March 2017, the two men went out
‘drinking and clubbing’ in the city. They were part of a group, which also included C’s ‘on-off’
girlfriend, V. The two men anticipated some of their friends spending the night at their flat. H and C
had therefore agreed that they would sleep in C’s room, leaving H’s room free for their friends to use, if
necessary.
In the early hours of the morning of Saturday 1st April, C and V returned to the flat and went to C’s
room, where they had sex. Later, C felt sick and went to the bathroom. He ended up asleep on the
bathroom floor. Some time after that, H returned to the flat and went to C’s room, as arranged. What
happened next was disputed.
According to H, he did not realise that V was in the room until after he got undressed and lay
downonthebed.Whenhedidso,hesawthattherewasanakedwomanonthebed.Herecognised
her as V, they made eye contact and she kissed him. They went on to have oral and vaginal sex;
throughout, V was a fully engaged and consenting partner. Nothing happened to suggest that she
was not enjoying herself until V said, ‘What are you doing?’ pushed him off and said, ‘Where’s
Joe?’
V said that she awoke to find H straddling her with his erect penis in her mouth. She was groggy
and assumed that it was C being a bit cheeky. She performed oral sex for about 10 minutes after
which they had vaginal sex. V maintained that she did not realise that it was H because of the low
lightning levels in the room combined with her still being intoxicated and sleepy with her eyes
closed. That changed as soon as H spoke in a distinctive Australian accent. At that point, V pushed
him off and said, ‘Where’s Joe?’ She went to find C in the bathroom and told him that she had
been raped.
H was charged with two counts of rape (one oral, one vaginal), contrary to s 1(1) of the Sexual
Offences Act 2003 (the SOA 2003). He initially appeared before a judge and jury in January 2019. As
part of its case, the Crown was permitted to rely upon a series of WhatsApp messages to suggest that H
was indifferent as to whether V was consenting. These messages were sent between the three WhatsApp
group members (C, H and another cricketer with the club) and suggested that the three men had agreed to
The Journal of Criminal Law
2020, Vol. 84(5) 508–511
ªThe Author(s) 2020
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DOI: 10.1177/0022018320965376
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