Law report: Lack of consent need not be demonstrated

Regina v Malone; Court of Appeal (Criminal Division) (Lord Justice Roch, Mr Justice Sachs and Mr Justice Collins) 1 May 1998

IT WAS not necessary, in order for an accused who had not used force, threat or deceit to be found guilty of rape, that there should be evidence that the complainant had demonstrated her lack of consent and had communicated it to the accused.

The Court of Appeal dismissed the appeal of Thomas Patrick Malone against his conviction on 5 February 1997 at Chelmsford Crown Court of rape.

The complainant was a 16-year-old girl, and the alleged offence had occurred when she was very drunk. She maintained that she had not consented to intercourse with the appellant, but that on account of her condition she had been unable to resist. The issues at the trial were whether intercourse had taken place at all; whether, if it had, the prosecution had proved that it had been non-consensual; and whether, if lack of consent had been proved, it was proved that the appellant had known that the complainant did not consent or had been reckless as to whether she consented or not.

The appellant was convicted, and appealed against conviction on the ground, inter alia, that the judge had erred on the law applicable to the issue of consent, leading him to rule wrongly at the end of the prosecution case that there was a case to answer, and to misdirect the jury in his summing up.

Richard Germain (Registrar of Criminal Appeals) for the appellant; Andrew William (Crown Prosecution Service) for the Crown.

Lord Justice Roch said that it had been contended on the appellant's behalf that R v Howard [1956] 3 All ER 684 and R v Lang (1975) 62 Cr App R 50 were still good law and that, in a case such as the present where the appellant had not used force, threat or deceit, there had to be evidence that the complainant had offered some resistance either by speech or physical contact. It was submitted that on the complainant's own evidence there had been no such demonstration of the absence of consent.

Both cases relied on had been decided prior to the passing of the Sexual Offences (Amendment) Act 1976. The issue had come before the court again in R v Olugboja 73 Cr App R 344, but it had been submitted for the appellant that that decision had not superseded Howard and Lang.

The appellant's argument was rejected. The actus reus of rape was an act of sexual intercourse with a woman who at the time of the act did not consent, but there was no requirement that the absence of consent had to be demonstrated or that it had to be communicated to the defendant.

The authorities of Howard and Lang had to be read with caution. Decisions which pre-dated the Sexual Offences (Amendment) Act 1976 could not be binding on the court, although they might be of assistance in an appropriate case. In order to obtain a conviction of rape there had to be some evidence of lack of consent to go before the jury, but the nature of that evidence would depend on the particular circumstances of the case.

It might, for example, be the complainant's simple assertion that she did not consent to intercourse; evidence of threats or physical force by the defendant; evidence that by reason of drink or drugs the complainant was incapable of giving consent or incapable of being aware of what was occurring; evidence that by reason of age or lack of understanding due to mental handicap the complainant had not consented; or evidence that the complainant was asleep when sexual intercourse occurred or had been tricked into giving consent in the belief that the defendant was her husband or partner. In the present case, there had been ample evidence on which the appellant could have been convicted, and his conviction was not unsafe.

Kate O'Hanlon, Barrister