R v Bree (Benjamin) – Case Summary

R v Bree (Benjamin)

Court of Appeal

Citations: [2007] EWCA Crim 804; [2008] QB 131; [2007] 3 WLR 600; [2007] 2 All ER 676.


The defendant had sex with the complainant while she was very drunk, but still conscious. He argued that she ‘seemed keen’ in her body language, and had either consented or given him the reasonable impression that she was consenting. She argued that she had been limp and unable to coordinate her movements.

At the defendant’s trial for rape, the judge directed the jury that a person consents if they agree to sex with the freedom and capacity to choose. However, the judge did not say anything specific about the impact of intoxication. The jury convicted, and the defendant appealed.

  1. How does intoxication impact consent under the sexual offences?

The Court of Appeal quashed the conviction. The jury should have been given some assistance on how intoxication might have impacted the complainant’s capacity to consent. Without a specific direction, the conviction was unsafe.

This Case is Authority For…

A person may lose their capacity to consent through intoxication short of unconsciousness, but it is not automatic. It is still possible to be very drunk and give valid consent. Whether the complainant has lost their capacity to consent is fact-specific.