Trial

Consent

It should be easy enough, shouldn’t it? Yes or no?

As always, life and the law are more complicated than that, and the issue of consent - in the context of alleged sexual offences - is not so simple.

What is consent?

A person consents if she or he agrees by choice, and has the freedom and capacity to make that choice.

Can a drunk person consent?

Yes, drunken consent is still consent, but this is where problems can arise. If a person loses their capacity to choose, through drink, then he or she is not consenting.

Consent is frequently the issue in many rape cases where it is one word against the other.

The Courts have identified the following focus points:

1.    Did sexual intercourse take place?

2.    Did the complainant consent to sexual intercourse?

3.    Did the complainant have the freedom and capacity to consent?

4.    Did the defendant reasonably believe that the complainant was consenting? (this does not apply in all cases).

Who decides?

At trial, it will be for the jury to determine issues of capacity and consent having heard all of the evidence.

How do you prove consent?

In the absence of a written contract, and even then, there could be doubts, it is for the jury to decide having heard the evidence.

In some cases, it is not enough for a defendant to simply say that he or she believed the other person was consenting, there must be evidence that he or she had a reasonable belief that there was consent. This would include considering any steps taken by the defendant to ascertain the complainant was consenting.

The situation could also arise where consent is given on condition, for example, that a condom is used. If one is not used, then the “consent” may be vitiated.

There have also been cases where a female has pretended to be a male and had intercourse on that basis. The defendant was guilty because the complainant said that she would not have consented if she had known that the defendant was female.

 

This article is a brief analysis of potential issues surrounding consent. As you can see, this is an area that would require careful assessment and expert advice.

The problem with many alleged sexual offences is that they require a jury to examine intimate factual scenarios, often clouded by drink or drugs, where there is seldom any independent evidence to assist one way or the other. It is our job to present the strongest case possible.

Contact me on 07766001774 or email me (contact@crimelawyer.co.uk) for further information.

A Matter of Character

A Matter of Character

In criminal law, we talk a lot about character, but mainly in the context of 'bad character', or previous convictions that the prosecution will try to put before a jury to persuade them of the defendant's guilt. After all, if he's done it before, he is more likely to have committed this crime too, is the general thrust of the argument.

But of course, not all defendants facing criminal trial have previous convictions, and in those circumstances, the issue of 'good character' arises.

This is, of course, the reverse of the Prosecution argument - he is a man of good character and is, therefore, less likely to have committed the crime charged.

It is in fact much more complicated than that, and we believe it is an aspect of case preparation that is often overlooked, to the detriment of the person standing trial.

What is the purpose of establishing good character?

For centuries, it has been accepted that evidence of the accused’s good character is admissible in criminal trials.

In the modern era, the courts have accepted that good character evidence may be admissible:

(i) to bolster the accused’s credibility and

(ii) as relevant to the likelihood of guilt.

How is good character established?

In most cases, good character is a matter of fact, in that if a person has no previous convictions they will by definition be of good character.

But even then, a person may be deprived, at least in part, of their good character status depending on the nature of any evidence they have given.

Likewise, a person may not start off with good character but may be able nonetheless to obtain a good character direction. This is often referred to as 'qualified or effective good character'. A common scenario is where any convictions are either so old or so irrelevant to the matter before the court, that it would be unjust to take them into account.

An essential part of establishing good character is also to consider carefully whether character witnesses should be called on your behalf. These are people who know you well and who will speak positively about you.

In choosing character witnesses, it is preferable to try and find people who will be highly credible themselves in the eyes of the court or jury, people who would not be willing to lie about a person's character and qualities simply out of an allegiance to that person.

Do I have to do anything?

It is critical that good character or qualified good character is not overlooked during case preparation. It is for the defence to formally establish good character and ensure that the issue is properly before the court for consideration.

If defence advocates do not take a point on the character directions at trial and/or if they agree with the judge's proposed directions which are then given, these are good indications that nothing was amiss. This means that attempting to cure any defect on appeal is unlikely to meet with success.

The Court of Appeal has held:

“...as a matter of good practice, if not a rule, defendants should put the court on notice as early as possible that character and character directions are an issue that may need to be resolved. The judge can then decide whether a good character direction would be given and if so the precise terms. This discussion should take place before the evidence is adduced. This has advantages for the court and for the parties: the defence will be better informed before the decision is made whether to adduce the evidence, the Crown can conduct any necessary checks and the judge will have the fullest possible information upon which to rule. The judge should then ensure that the directions given accord precisely with their ruling."

What is the content of a 'good character' direction?

The actual direction to the court or jury depends on the exact circumstances of the case, but this is a typical full direction:

'You have heard that the defendant is a man in his middle years with no previous convictions. Good character is not a defence to the charges but it is relevant to your consideration of the case in two ways. First, the defendant has given evidence. His good character is a positive feature of the defendant which you should take into account when considering whether you accept what he told you. Secondly, the fact that the defendant has not offended in the past may make it less likely that he acted as is now alleged against him.

It has been submitted on behalf of the defendant that for the first time in his life he has been accused of a crime of dishonestly. He is not the sort of man who would be likely to cast his good character aside in this way. That is a matter to which you should pay particular attention.

However, what weight should be given to the defendant's good character and the extent to which it assists on the facts of this particular case are for you to decide. In making that assessment, you may take account of everything you have heard about him'.

In the Magistrates' Court, the Defence advocate should ensure that the Court Clerk advised the Magistrates' correctly on this direction.

How I can assist

I believe in proactive defence work, not merely responding to the Prosecution case, but at the same time doing everything possible to build a strong Defence case.

Considerations about character, both good and bad, is just one aspect of that case preparation, albeit a significant one.

To discuss your case, please contact me on +447766001774 or email me on contact@crimelawyer.co.uk.