Case No:  1999/06511/W4

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL

Friday 1st December 2000

B e f o r e :

LORD JUSTICE HENRY
MR JUSTICE POOLE
and 
SIR BRIAN SMEDLEY
(sitting as a Judge of the Court of Appeal Criminal Division)
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	REGINA		
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	Mark Trevor Calvert		

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
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P J Cosgrove Esq, QC (who did not appear below)
instructed for the Appellant
D E H Robson Esq, QC (who did not appear below) & Miss P J Moreland 
instructed for the Respondent

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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Henry:
1.		This is the judgment of the Court.  On the 27th September 1999 in the Crown Court at Newcastle-upon-Tyne, before His Honour Judge Whitburn QC, the appellant was convicted of rape, and he now appeals against conviction with the leave of the Full Court.
2.		The complainant was then 19, and a student at Newcastle University.  On the evening of 16th March 1998 she had been out drinking with friends.  She had had a considerable amount to drink that night, and was drunk but not incapable.  She had become separated from her friends, and in the early hours of the morning was walking back to her hall of residence.  A man, who was the appellant, approached her in the street.  They gave very different accounts of what then took place.  The Crown allege that he tried to chat her up, realised she was drunk, and took advantage of her condition and had intercourse without her consent, knowing that she did not consent or being reckless as to whether she was consenting or not.  The defence in outline was that he asked for sex, she readily agreed, they did it, she enjoyed it, and they parted company.
3.		The complainant’s meeting with the man was captured on a security video.  It showed the man coming up and talking to her, but on her evidence she did not look at him.  He asked her to go home with him, but she refused.  Then he put his arm around her.  He said he would walk her home.  She said nothing.  In an alleyway he drew her to him and kissed her on the cheek - a peck.  She drew back to avoid contact with him.  He took her into an alleyway around the back of a hospital.  The next thing she knew was she was on her back on the ground.  He must have pushed her.  He undid the buttons on her trousers and pulled the zip down.  He penetrated her, and moved back and forth.  It hurt a bit, but was over quickly.  She put her head in her hands in disbelief.  He told her to put her clothes on.  She put her shoes on.  He ran away.  She sorted herself out and staggered home to her hall of residence.  Before he penetrated her, he had asked if she was drunk.  She said she was and thought it would have been obvious.  All she could focus on was getting home.  She was hysterical when she left the alleyway.  When cross-examined, she said she did not have her senses about her.  He might have pushed her to the ground.  There was no damage to her clothing.  She did not help him.  From the time he tried to kiss her, at no stage did he speak.  The only time she spoke was to admit being drunk.  She agreed she had not protested but she was in no state to and her body was “like lead”.  She said she gave no outward sign of agreement or consent, whether verbal or physical.  She remembered being raped and not being able to do anything about it.  She would not have done something like that with someone she met for the first time.  She denied that a considerable amount of kissing occurred beforehand or that she was overcome by lust and readily consented.  When back at her hall of residence amongst her friends she was crying and upset.  She made up her mind to tell the police, though she only wanted close friends to know what had happened.  The doctor who examined her found no physical signs of injury.  There was no damage to her clothing.
4.		In interview the appellant claimed that he had a girlfriend and said that he would not have a sexual relationship with any other woman whilst going out with his girlfriend.  But when the specific allegation of rape was put to him, he said that the complainant consented.  He said he did not count “one-night stands” as sexual relationships.
5.		On close of the Crown’s case, the defence made a submission of no case to answer on the basis that there was no evidence that the appellant knew or was reckless as to whether the complainant consented or not.  It was submitted that she was not obviously drunk.  She accepted that the only indications that she was not consenting were that she had declined to go him with him, and had moved away when he tried to kiss her.  So it was submitted that on her evidence the jury could not safely conclude that he did not believe she was consenting.  The judge rejected this submission.  He was of opinion that the jury could conclude that the appellant came across a girl in drink and decided to have her come what may.
6.		The appellant elected to give evidence.  He said that he had been out for a drink but was not drunk.  Despite the time there were lots of people about.  He walked parallel with the complainant.  He knew that Monday night was a student night, and saw that the complainant was an attractive girl.  She looked like a student.  They exchanged names (albeit he could not remember hers).  He did not think she was drunk.  He thought she liked him.  He had asked if he could put his arm around her and she said he could.  They talked as they walked.  He asked her to go back to his house and she said no.  Then he said could he go back to her place and she said yes.  She told him the road and he knew it.  She insisted that they take a route through the hospital - which he did not know.  They were kissing before they got to the hospital.  They had their arms around each other.  Then they stopped and he asked if she would like sex.  They were kissing and touching each other and she did not draw back.  He did not ask if she was drunk.  She touched him on his chest and bottom.  They were not sure where to have sex.  They decided to go to the alleyway.  They held hands and kept kissing.  They fondled each other under clothes for several minutes.  She undid his belt, he undid her trousers but he took her clothes off.  She sat on the ground.  They had sex.  He had no impression she was unwilling.  They said nothing whilst they had sexual intercourse.  Afterwards they both stood up and got dressed.  He passed her a shoe.  They left the alleyway together.  There was no sign of distress.  They were embarrassed if anything.  He asked if he should go with her and she said no.  He asked her again and then she ignored him.  When cross-examined he said he chatted her up because she was attractive.  At the time he did not have any intentions.  He agreed he could not tell the police her hair colour (which was striking).  She behaved as if pleased to have his company.  They got on well.  She agreed to have sex.  They decided to have sex when walking through the hospital.  There was no discussion but they decided not to do it on the main road.  It was not suggested they wait until they got back to Hall.  They wanted to have sex there and then.  She was so anxious she took her own clothes off.  They did not discuss using a condom.  Her kisses had been passionate.
7.		It is clear from their verdict in the case that the jury must have accepted the complainant’s version of events and rejected that of the appellant.  We do not find this surprising.  The judge summed it up in this way:
“Remember the defence is consent.  She consented, it is said, to unprotected sex with a man she had ‘met’ ten to fifteen minutes before.  Is it your view that she would do this.  She says, as you know, she never would.
Equally the defendant was at the time a teacher and has no previous convictions.  ...  He was, he told you, in a long and steady sexual relationship with a girl called Karen, a girl that he met it would appear in a similar way.  Not averse, clearly, to trying his luck with a girl he picked up and furthermore succeeding.  What Ms Morland (for the Crown) put as the ultimate male fantasy; a willing girl, attractive, prepared to have sex with the shy Mr Calvert within ten or fifteen minutes of meeting him.  Not only did she find unprotected sex acceptable, it was positively welcome.  There was no thought of the consequences, [there was] arousal, the intoxication of lust, and the slight embarrassment of both before they parted.  ...  Unprotected sex has serious consequences ... the defendant’s case is that [the complainant] welcomed and agreed to unprotected sex.  Did she?  Such matters are entirely for you.”
8.		Ultimately the appellant, through Mr Cosgrove QC, relies on one single ground of appeal, namely that:
“The learned judge erred in failing, adequately or at all, to direct the jury on a secondary defence available to the appellant, namely that he neither knew that the complainant did not consent to the sexual intercourse nor was reckless as to whether she consented or not.  The appellant’s primary defence was that the complainant did consent.  There was evidence primarily from the complainant herself, which raised the issue of the secondary defence, yet the jury was not invited to consider that defence.”
9.		A brief historical excursus is now necessary to explain the development of the law, for which I am indebted to Professor Sir John Smith QC, and the 9th Edition of Smith & Hogan on Criminal Law.
10.		Rape was a common law offence until the passing of the Sexual Offences (Amendment) Act, 1976.  Importantly, it was a common law offence when DPP -v- Morgan [1976] AC 182 was decided.  There it was held that where the law requires intention or recklessness in the commission of a crime, a mistake, whether reasonable or not, which precludes both states of mind will excuse - so rape is not proved if the defendant may have believed that the victim was consenting, even if that belief was unreasonable - see Lord Hailsham in DPP -v- Morgan (above at 214F).
“Once one has accepted ... that the prohibited act in rape is non-consensual sexual intercourse, and that the guilty state of mind is an intention to commit it, it seems to me to follow as a matter of inexorable logic that there is no room either for a ‘defence’ of honest belief or mistake, or a defence of honest and reasonable mistake.  Either the prosecution proves its case or it does not”.
11.		That statutory definition codifying the common law as expressed in Morgan now is found (with the amendments incorporated since) in Section 1(2) of the Sexual Offences Act, 1956.  This reads (so far as is relevant):
“1	...
(2)	A man commits rape if-
(a)	he has sexual intercourse with a person (whether vaginal or anal) who at the time of the intercourse does not consent to it;  and
(b)	at the time he knows that the person does not consent to the intercourse or is reckless as to whether that person consents to it.”
1.	
12.	Professor Smith records the reaction to Morgan in the 9th Edition of Smith & Hogan at p455:
“It will be recalled that in Morgan it was held that rape was not proved if the man may have believed that the woman was consenting, even if that belief was unreasonable.  This caused much disquiet, mainly because it was erroneously supposed that a man needed to do no more than assert his belief in consent to secure his acquittal.  Consequently the Heilbron committee, while endorsing the decision in Morgan, recommended the declaratory provision which, as amended by the 1994 Act, is still found in s. 1(2) of the 1976 Act:
‘(2) It is hereby declared that if at a trial for a rape offence the jury has to consider whether a man believed that a woman or man was consenting to sexual intercourse, the presence or absence of reasonable grounds for such a belief is a matter to which the jury is to have regard, in conjunction with any other relevant matters, in considering whether he so believed.’
This, of course, is a matter of common sense, in no way peculiar to rape.  Whenever a jury has to decide whether a person knew a fact or foresaw a consequence, the fact that a reasonable man would have known the fact or foreseen the consequence is evidence tending to show that the accused knew or foresaw; but the decision must be made in the light of the whole of the evidence, including the accused’s own testimony, if he gives it, that he did not know or foresee as the case may be.  It is unfortunate that a matter of common sense should be enacted at all, particularly that it should be enacted in relation to one offence.  So long, however, as it is understood that subsection (2) is a public relations provision and does not enact a rule peculiar to rape, it is harmless.”
13.	The next stage of Mr Cosgrove’s analysis is to remind the Court of the duty that lies on the trial judge to put before the jury possible defences which have not been relied on by defence counsel;  the leading case is R -v- Kackikwu 52 Cr App R, 538 at 543:
“It is asking much of judges and other tribunals of trial of criminal charges to require that they should always have in mind possible answers, possible excuses in law which have not been relied upon by defending counsel or even, as has happened in some cases, have been expressly disclaimed by defending counsel.  Nevertheless, it is perfectly clear that this Court has always regarded it as the duty of the judge of trial to ensure that he himself looks for and sees any such possible answers and refers to them in summing up to the jury and takes care to ensure that the jury’s verdict rests upon their having in fact excluded any of the those exscusatory circumstances.” (per Winn LJ).
14.		The most apposite example of this is R -v- Bashir [1982] 77 Cr App R 59.  There two girls accepted a lift in a car with some men.  There they were kept in the car against their will and finally offered the choice of having sex with the men or walking home.  Bashir’s defence was that he simply could not remember what happened in the car, therefore his counsel took the view that Bashir could not claim that he believed she was consenting.  But on the other evidence (mainly from the complainant herself) there was evidence which might have founded such a belief - the complainant had undressed herself, her clothes were not torn, she assisted the act of intercourse and gave the defendant a light peck on the cheek when parting.  Watkins LJ in allowing the appeal said (p62):
“There can be, and there is, no doubt firstly that a defence can be said to be raised whenever there is evidence, no matter from what source, of a kind which calls upon a judge to conclude that this defence should be left to the jury, and secondly, that his decision as to whether or not that defence should be left to the jury is open to review in this Court.  If the conclusion here is that he was called upon to leave that defence to the jury and did not, then his failure to do so can amount to such a non-direction as will destroy the conviction.”
15.		In this case, as in Bashir we get, principally from the complainant’s account, evidence from which a jury might conclude that there was here material as might justify a finding of genuine mistaken belief.  We take the appellant’s counsel’s summary of that evidence in paragraph 13 of his skeleton argument, which essentially comes from the account given by the complainant:
“(a)	the complainant walked with the applicant for some distance without protest or demur;
(b)	they were in conversation as was shown on the video;
(c)	during that walk the applicant put his arm around the complainant, and again the complainant did not protest or demur;
(d)	although the complainant said that she drew back after the applicant gave her ‘a peck on the cheek’, she immediately went with him into an alleyway without protest or demur, with no force or pressure, solely with him leading her by the arm;
(e)	the complainant, perhaps surprisingly, was unable to recollect how she came to be on the ground, and so could give no evidence of that matter upon which a jury could have draw adverse conclusions about the applicant’s state of knowledge or recklessness;
(f)	she gave no verbal or other indication to the applicant that he should stop what he was doing, in particular there was no struggle and no damage to her clothing or injury to her person (apart from the fact of penetration);
(g)	at the time of intercourse the complainant was able to understand and communicate with the applicant, in that he asked her if she was drunk and she replied that she was;
(h)	at no time was any threat or force or violence alleged.”
16.		Accordingly, we are bound to conclude that the judge should have given the jury a Kackikwu/Bashir direction.  But we have considerable sympathy for the trial judge in this case.  He was not invited to give any such direction.  At that time the Judicial Studies Board Specimen Direction did not cater for this contingency.  Now, after the Specimen Direction dealing with recklessness in rape and sexual offences (which the judge followed) an August 2000 amendment inserts the following:
“Where on the evidence there is room for a possible finding of a genuine mistaken belief that the victim was consenting, ADD:
‘If the defendant may genuinely have believed that [she] consented, although such belief may have been mistaken, then he is not guilty of rape.  When you are considering whether he genuinely believed that [she] consented, you may have regard to the presence or absence of reasonable grounds for such belief together with any other relevant matters.’”
17.		Had that instruction and that Specimen Direction been present, it seems to us at least possible that the judge would have left the issue of genuine mistaken belief to the jury.  This was a direction the appellant was entitled to have, though we are far from convinced that it would have altered the outcome.  In the light of Bashir, we feel obliged to quash the conviction for this non-direction.  We will hear submissions as to whether there should be a re-trial (though we do not require the attendance of counsel who conducted the appeal).