R v White (Gavin)
Court of Appeal
Citations:  EWCA Crim 1929.
The defendant took intimate photographs of the complainant using his mobile, one of which showed him penetrating her vagina with his fingers. He claimed that she had consented to both the activity and the photographs. She insisted that she must have been asleep at the time (she could not remember the activity), and so did not consent.
The defendant was charged with assault by penetration under s.2(1) of the Sexual Offences Act 2003. The judge directed the jury that if they believed the complainant was asleep at the time, s.75 of the Act placed the defendant under an evidential burden to prove he had a reasonable belief in consent. The judge did not define ‘evidential burden’.
The jury then asked what the law was if they thought that the complainant consented to the activity and then fell asleep before it happened. They wanted to know if the consent would still be ‘active’. The judge did not answer the question, but merely repeated his earlier direction on the meaning of s.75.
The defendant was convicted. He appealed his conviction on the basis that the judge had misdirected the jury.
- Was the judge’s direction defective?
The Court of Appeal overturned the conviction. The judge’s direction was confusing and inappropriate, and gave the impression that the jury should convict as long as they were sure the complainant was asleep. In those circumstances, the conviction was unsafe.
This Case is Authority For…
A direction on the application of s.75 should only happen where there is insufficient evidence to raise an issue as to whether the complainant consented and the defendant reasonably believed she consented. This evidence must be more than merely speculative or fanciful. If there is such evidence, then the judge should not mention s.75 and should instead give a direction on the meaning of consent in the ordinary way.
The Court of Appeal noted that if the complainant had consented to the acts, and then fallen asleep before they happened, the appellant would have had a defence.