View source for ICLR B v R (2013) EWCA Crim 3, (2013) MHLO 7

''CRIME — Rape — Consent — Defendant suffering from paranoid schizophrenia at time of alleged rapes and common assaults — Whether defendant’s delusional belief in consent reasonable — Sexual Offences Act 2003, s 1(1)(2)''

'''Regina v B (M)'''

'''[2013] EWCA Crim 3;  [2013] WLR (D)  43'''

CA:  Hughes LJ, Macur, Maddison JJ:  31 January 2013

Under the rule in section 1 of the Sexual Offences Act 2003, unless the defendant’s state of mind amounted to insanity in law, beliefs in consent arising from conditions such as delusional psychotic illness or personality disorders had to be judged by objective standards of reasonableness and not by taking into account a mental disorder which induced a belief which could not reasonably arise without it.

The Court of Appeal, Criminal Division, so held when dismissing the appeal of the defendant, A, against his conviction on 23 November 2011 at the Crown Court at Chelmsford, before Judge Ball QC and a jury, of two counts of rape (counts 3 and 4) contrary to section 1(1) of the Sexual Offences Act 2003.

Section 1 of the Sexual Offences Act 2003 provides: “(1) A person (A) commits an offence if— (a) he intentionally pentrates the vagina, anus or mouth of another person (B) with his penis, (b) B does not consent to the penetration, and (c) A does not reasonably believe that B consents. (2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps which A has taken to ascertain whether B consents.”

'''HUGHES LJ''' said, in the reserved judgment of the court, that the judge had directed the jury that they should leave the defendant’s mental illness out of the equation when asking whether any belief that the defendant might have had in the complainant’s consent was reasonable, but that if there might, independently of his illness, have been a reasonable belief, that would result in a verdict of “guilty”. Counsel for the defendant submitted that this was wrong. The judge ought, he submitted, to have directed the jury in very general terms that the question of whether the belief was reasonable was whether it was reasonable in the particular circumstances of the defendant, which included his mental illness. The judge should, counsel said, have given no other or more specific guidance, leaving the matter to the jury at large.

On the facts of the case, the court did not think that in the end the issue arose. The evidence of the consultant psychiatrist was that the defendant’s illness did not affect his ability to understand whether or not his partner was saying no. In the face of the psychiatrist’s evidence, and in the absence of any account from the defendant suggesting misunderstanding, counsel’s submission that he might not have understood that the complainant was frightened and thus thought that her submission was consent could only be mere speculation. For those reasons alone, the convictions for rape in the present case could not be considered unsafe.

If, however, the court was wrong about that, and the defendant’s delusional beliefs could have led him to believe that his partner consented when she did not, the court took the clear view that such delusional beliefs could not in law render reasonable a belief that his partner was consenting when in fact she was not. The 2003 Act did not ask whether it was reasonable (in the sense of being understandable or not his fault) for the defendant to suffer from the mental condition which he did. The Act asked whether the belief in consent was a reasonable one. A delusional belief in consent would be by definition irrational and thus unreasonable, not reasonable. The 2003 Act deliberately departed from the rule which judged a defendant on his subjective state of mind and did not make genuine belief in consent enough. The belief had to be not only genuinely held; it had also to be reasonable in all the circumstances. It did not follow that there would not be cases in which the personality or abilities of the defendant might be relevant to whether his positive belief in consent was reasonable. The court did not attempt exhaustively to foresee the circumstances which might arise in which a belief might be held which was not irrational even though most people would not have held it.

'''Appearances:''' Simon Spence QC (assigned by the Registrar of Criminal Appeals) for the defendant; Timothy Cray (instructed by Crown Prosecution Service, Appeals Unit) for the Crown.

'''Reported by:''' Georgina Orde, Barrister.

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