R v Zhang [2007] EWCA Crim 2018

Facts

• The Sexual Offences Act 2003 redefined the law on sexual offences in England and Wales, particularly concerning the concept of consent as set out in Section 74.
• Section 75 introduces two 'final' presumptions (assumptions) relating to consent, triggered where the complainant is misled about the act’s nature/purpose or where the defendant impersonates someone known to the complainant.
• Section 76 outlines six 'supporting' evidential presumptions, including threats or use of violence, unlawful restraint, unconsciousness, incapacity, and administration of drugs or alcohol.
• In R v Zhang, the application of these statutory presumptions was directly examined by the Court of Appeal.
• The case highlighted the need for the prosecution to establish relevant conditions for the assumptions, as well as the defendant’s knowledge or deliberate disregard of those conditions.
• The court compared this framework with prior authorities such as R v Williams [1923] 1 KB 340, R v Linekar [1995] 3 All ER 69, and R v Elbekkay [1995] Crim LR 163, addressing the scope and limits of deception and impersonation in consent.

Issues

1. Whether the final and supporting consent presumptions under Sections 75 and 76 of the Sexual Offences Act 2003 were correctly applied in R v Zhang.
2. What evidential burden exists for the prosecution and defence when relying on these statutory assumptions.
3. The extent to which the defendant's knowledge or disregard of relevant conditions affects the operation of assumptions negating consent.

Decision

• The Court of Appeal clarified that for the statutory assumptions under Sections 75 and 76 to apply, the prosecution must prove the existence of specified conditions and establish the defendant’s knowledge or deliberate indifference to those circumstances.
• The evidential presumptions may be rebutted if the defendant provides sufficient evidence to challenge the absence of consent.
• The court emphasized that the application and weight of these presumptions depend on the context and specific facts of each case.
• Supporting case law, including R v Williams, R v Linekar, and R v Elbekkay, was referenced to illustrate the interpretation of deception and impersonation under the Act.

Legal Principles

• Consent under Section 74 of the Sexual Offences Act 2003 requires agreement by choice with the freedom and capacity to make that choice.
• Final and supporting presumptions about the absence of consent are triggered by certain situations, such as deception as to the nature/purpose of the act or impersonation of a known person.
• The defendant’s knowledge of, or deliberate disregard for, the triggering circumstances is material to applying these presumptions.
• Presumptions can be challenged if sufficient evidence suggests genuine consent may have existed.
• Determination of consent and operation of the presumptions are highly fact-specific.

Conclusion

R v Zhang [2007] EWCA Crim 2018 affirmed that the statutory assumptions in the Sexual Offences Act 2003 operate within an evidential framework requiring clear proof of specified circumstances and defendant awareness, allowing for rebuttal by the defence and contingent on each case’s facts.