R v Bree [2007] EWCA Crim 804

Facts

• Both Bree and the complainant consumed large amounts of alcohol.
• The complainant alleged sexual assault, maintaining she did not consent.
• Bree asserted the sexual act was consensual.
• The trial judge’s directions to the jury regarding consent and intoxication were ambiguous.
• The case was appealed on the grounds that the jury had not been properly instructed about the link between intoxication and consent.

Issues

1. Whether voluntary intoxication can prevent a complainant from having the capacity to consent to sexual activity.
2. What level of intoxication negates the ability to make a decision to consent.
3. Whether poor decisions made under the influence of alcohol equate to lack of consent.
4. Whether the jury had received adequate guidance on assessing consent where alcohol was involved.

Decision

• The Court of Appeal held that voluntary consumption of alcohol does not necessarily negate consent.
• Consent remains valid unless the complainant was so intoxicated that she lacked the capacity to choose to consent.
• Poor or uncharacteristic decisions due to intoxication do not, in themselves, amount to a lack of consent.
• Juries must consider all evidence, including the level of intoxication, to determine whether the complainant could make a free choice.
• The appeal was allowed due to inadequate direction to the jury.

Legal Principles

• Consent in sexual offences depends on the complainant’s ability to make a free choice, not simply on the fact of intoxication.
• Extreme intoxication may vitiate capacity to consent, but lesser degrees do not.
• The focus is on the complainant’s mental capacity to choose, not merely poor judgment or regret after the event.
• Juries must assess all circumstances, including behaviour and levels of intoxication, when determining the presence or absence of consent.
• The decision distinguishes between incapacity to consent and impaired judgment.

Conclusion

The Court of Appeal clarified that, in cases involving voluntary intoxication, only a level of drunkenness that deprives a person of the capacity to choose negates consent; juries must carefully scrutinize the facts to determine capacity rather than equating drunkenness or regretted decisions with lack of consent.