R v Bree [2007] EWCA Crim 804

Key point

  • Intoxication does not automatically vitiate consent to sexual intercourunder s. 74 Sexual Offences Act 2003, whether it did so is a question of fact on the state of mind of the complainant


  • V was engaged in sex with D while V was highly intoxicated from drink
  • D argued though V was drunk, she was lucid enough to consent
  • D was convicted of rape
  • D appealed on the basis that judge had made no reference on the ability to consent while intoxicated

Held (Court of Appeal)

  • Appeal allowed – the judge had made in sufficient direction

Sir Ivor Judge P

  • Under s. 74 Sexual Offences Act 2003, if V was intoxicated to the extent that she was unable to engage in sexual intercourse, she has not consented
  • V can be intoxicated and still retain the ability to consent
  • Consent may evaporate even before V becomes unconscious
  • Whether that there was consent is fact-specific and depended on the actual state of mind of the individuals involved: [34]
  • It is unrealistic to devise a ‘grid system’ where consent is dependent on the level of alcohol consumption: [35]