Ciccarelli, R. v

Facts

The complainant was asleep when the appellant sexually touched her. He claimed that he believed she consented. Because the complainant was asleep at the time of the act, s.75(2)(d) of the Sexual Offences Act 2003 applied.

History

At trial the judge ruled that there was insufficient evidence to raise an issue as to whether the appellant reasonably believed the complainant consented, so the s.75 presumption could not be displaced. Following that ruling the appellant pleaded guilty to sexual assault and appealed against conviction on the basis that the ruling was wrong.

Issue

What quality of evidence a defendant must adduce, under s.75(1) of the Sexual Offences Act 2003, to raise an issue as to whether he reasonably believed the complainant consented, so that the question must be left to the jury.

Held

Appeal dismissed. The judge was entitled to conclude that there was no evidence capable of supporting a reasonable belief in consent, so the presumption in s.75 stood and the conviction was safe.

Ratio

• Where a s.75 circumstance is proved, the defendant must adduce sufficient evidence of a reasonable belief in consent to raise a real issue; evidence that is fanciful or speculative, or a bare assertion of belief unsupported by anything in the circumstances, does not suffice, and the judge may then withdraw the issue from the jury.

Key reasoning

• Section 75 imposes an evidential burden only: once sufficient evidence is adduced to raise an issue, the prosecution must disprove consent or reasonable belief in the ordinary way under ss.1 and 74.
• Sufficient evidence means evidence on which a jury could properly find the matter in the defendant's favour; it is for the judge to decide whether that threshold is met.
• Nothing in the circumstances relied on by the appellant could support the reasonableness of the appellant's claimed belief, so there was nothing to leave to the jury.

Where it fits in the module

In the sexual offences topic the case illustrates the structure of the 2003 Act: the general definition of consent in s.74, the evidential presumptions in s.75 and the conclusive presumptions in s.76. It shows how the Act's shift from honest belief (DPP v Morgan) to reasonable belief is enforced procedurally, by limiting what a defendant can put before the jury. It invites discussion of whether presumptions are the right technique for protecting sexual autonomy.

Criticisms

• If a bare assertion of belief is never enough, the evidential burden comes close to a legal burden in practice, raising questions about the presumption of innocence.
• The judge's power to withdraw reasonable belief from the jury involves an evaluative judgment about reasonableness that the Act otherwise assigns to the jury having regard to all the circumstances.
• Conversely, it can be argued that the case still sets the bar too low, since any belief in the consent of a sleeping person should be treated as unreasonable as a matter of law.