||All England Reporter
|| All ER (D) 267 (Nov)
||Court of Appeal, Criminal Division
Laws LJ, Mackay and Lloyd Jones JJ
||Richard Furlong (assigned by the Registrar of Criminal Appeals) for the defendant.]
||Helen McCormack (instructed by the Crown Prosecution Service) for the Crown.
||16 November 2007
Criminal law - Rape - Consent - Complainant's voluntary intoxication - Judge failing to direct on issue of capacity to consent - Whether conviction unsafe.
Criminal law - Rape. The appeal against conviction of rape where the judge had failed to give directions as to the effect of the complainant's voluntary intoxication on consent, would be dismissed. The instant case could be distinguished from the authority in that it was not one in which the issue of capacity to consent had arisen. The judge had rightly summed the case up on the basis that that there had been a stark choice for the jury namely, either that the defendant would be guilty if the complainant had been unconscious at the time of sexual intercourse, in which case she had not consented, and the defendant had known that of her unconscious state; or that the complainant had been affected by her own voluntarily induced intoxication, but had nevertheless remained capable of choosing whether or not to have intercourse, and in drink had agreed to do so, in which case the defendant would not be guilty. In such circumstances it had not been necessary for such direction on 'capacity' to consent to be given.
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