{"id":6408,"date":"2018-03-07T09:26:59","date_gmt":"2018-03-07T09:26:59","guid":{"rendered":""},"modified":"2021-09-28T11:51:51","modified_gmt":"2021-09-28T11:51:51","slug":"r-v-bree","status":"publish","type":"post","link":"https:\/\/www.lawteacher.net\/cases\/r-v-bree.php","title":{"rendered":"R v Bree 2007"},"content":{"rendered":"

Legal Case Summary<\/h2>\n

R v Bree [2007] EWCA Crim 256<\/strong><\/p>\n

Facts<\/h3>\n

The defendant, Bree (B), visited his brother at University and went for an evening out with him and others, including the complainant (C). Both B and C consumed considerable quantities of alcohol, before returning to B\u2019s brother\u2019s home. Whilst C\u2019s memory from this point is poor, she recalls vomiting and having B and his brother help wash the vomit from her hair. Her next memory is of her and B having sexual intercourse. C contended that, although she had not specifically said \u2018no\u2019 to intercourse, she had not consented. B contended that he had reasonably believed she was consenting as she had undressed herself, appeared willing and been conscious throughout the event.<\/p>\n

History of the Case<\/h3>\n

At first instance, B was convicted by the Court of rape under the Sexual Offences Act 2003<\/a> s.1<\/strong>, on the grounds that C had not consented to sexual intercourse. Notably, at first instance, the Crown initially contended that C had been unable to consent as she was unconscious for much of the event. However, following the delivery of evidence at trial, the prosecution\u2019s approach changed to submit that C did have the capacity to consent, and had made it as clear as possible, given her inebriated state, that she did not consent to sexual intercourse with B.<\/p>\n

B successfully appealed this decision to the Court of Appeal, and was ultimately not convicted of rape.<\/strong><\/p>\n

Issue<\/h3>\n

The issue of appeal, as brought by B, was that at first instance the Court had not clarified to the jury that a person may still be capable of consenting, even where voluntarily heavily intoxicated. Rather, B viewed that the Court had implied heavy intoxication sufficed to remove one\u2019s capacity to consent, regardless of other factors. This would be contrary to the law on consent in the Sexual Offences Act 2003.<\/p>\n

Held<\/h3>\n

The Court of Appeal upheld B\u2019s appeal, making two main points.<\/p>\n

First, the Sexual Offences Act 2003 s.74 defines consent as where a person:<\/p>\n

\n

\u201c\u2026 agrees by choice, and has the freedom and capacity to make that choice\u201d
\n–\u00a0(Sexual Offences Act 2003, s.74).<\/p>\n<\/blockquote>\n

Where a person loses their capacity to consent due to intoxication, they indeed cannot consent. However, it is possible that a person may be heavily intoxicated, having voluntarily consumed a large quantity of alcohol, and still be capable of deciding to have intercourse. Further, the specific facts of each case must be examined in deciding whether consent is deemed to have been given, alongside the mental states of the defendant and complainant. Simply being intoxicated does not remove one\u2019s ability to consent, and equally, simply to be conscious does not mean one has the capacity to consent. Sir Igor Judge commented that:<\/p>\n

\n

\u201c[W]hen someone who has had a lot to drink is in fact consenting to intercourse, then that is what she is doing, consenting: equally, if after taking drink, she is not consenting, then by definition intercourse is taking place without her consent.\u201d (R v Bree<\/em> [2007] EWCA Crim 256 [a])<\/p>\n<\/blockquote>\n

Secondly, that the Court at first instance had failed to properly direct the jury as to the legal matters relevant to this case. Specifically, little or no guidance had been given on how consent is examined in the context of voluntary heavy intoxication, despite this being crucial to delivering a verdict. Further, little or no guidance had been given on dealing with the Crown Prosecution\u2019s significant change in approach, as occurred during the case. Subsequently, it was unclear whether the jury still believed C to be unconscious at the time of the sexual activity. The Court of Appeal was critical of the earlier Court for failing to establish that alcohol may alter someone\u2019s behavior, and heavy intoxication does not automatically mean a person cannot consent. R v Olugboja<\/em><\/a> [1982] QB 320<\/strong> ought to have been applied, and the central issues regarding consent mentioned and summarised for the jury\u2019s benefit.<\/p>\n

Related Case Law and Developments<\/h3>\n

R v Bree <\/em><\/strong>has been followed in subsequent case law and remains valid. Further, it has had impact on the Code for Crown Prosecutors, which was subsequently updated to emphasise the Appeal Court\u2019s findings. The Code now reminds prosecutors to pay particular attention to all the relevant facts in a specific case in assessing a person\u2019s capacity to consent in a rape case involving intoxication due to alcohol or drugs. The importance of reminding the judge, where necessary, to properly instruct the jury on such matters is also reiterated.<\/p>\n

The benefits of this approach have been stressed by other commentators, such as the highly-regarded Rook & Ward who note that rape cases involving heavy intoxication by either one or both parties tend to be<\/p>\n

\n

\u2018\u2026 so fact specific, [and] there are dangers to slavishly following a prescriptive specimen direction\u2019 (On Sexual Offences <\/em>2010, 4th edition, para 1.131).<\/p>\n<\/blockquote>\n

Nonetheless, his decision has also been the focus of notable criticism from many legal commentators, such as Wallerstein (Crim L J 2009, 73(4), 318, 343) arguing that the understanding provided of the definition of consent fails to bring about the change hoped for in reforming this area of the law, specifically to increase the number of convictions for rape. Such criticisms also note that this case follows the decision in R v EB<\/em> [2006] EWCA Crim 2945 <\/strong>in which it was found that a person\u2019s failure to mention their status as HIV positive did not vitiate another\u2019s consent to engage in sexual intercourse with them, which would subsequently have made any sexual intercourse rape. There is subsequently a view held by some, including Wallerstein (aforementioned), Elvin (Crim L J 2008, 72(6), 519) and Simpson (Crim L J 2016, 80(2), 97), inter alia<\/em>, that the current definition and construction of consent under the Sexual Offences Act 2003 <\/strong>is somewhat weak and is failing to provide adequate protection and justice to the victims of sexual offences.<\/p>\n","protected":false},"excerpt":{"rendered":"

The defendant, Bree (B), visited his brother at University and went for an evening out with him and others, including the complainant (C). Both B and C consumed considerable quantities of alcohol, before returning to B\u2019s brother\u2019s home<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[85],"class_list":["post-6408","post","type-post","status-publish","format-standard","hentry","category-cases","tag-uk-law"],"yoast_head":"\nR v Bree 2007 | LawTeacher.net<\/title>\n<meta name=\"description\" content=\"The defendant, Bree (B), visited his brother at University and went for an evening out with him and others, including the complainant (C). 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