R v Ciccarelli [2011] EWCA Crim 2665

Key point

  • Under s75 Sexual Offences Act 2003, evidence of reasonable belief in consent must be realistic before the issue is left to the jury to decide

Facts

  • D and his girlfriend brought back a friend (V) to their apartment after party
  • D sexually assaulted V while she was asleep
  • D gave evidence that he did so believing that V would consent based on a single advance V made towards him earlier
  • The trial judge held that the evidential presumption in s75 SOA 2003 applied and D’s evidence was insufficient raise an issue as to whether he reasonably believed that V had consented
  • D appealed on the basis that his evidence was sufficient to raise an issue that was for the jury to decide

Held (Court of Appeal)

  • Appeal dismissed – the evidence did not raise any issue for the jury to consider

Lord Judge CJ

  • ‘before the question of the appellant’s reasonable belief in the complainant’s consent could be left to the jury, some evidence beyond the fanciful or speculative had to be adduced to support the reasonableness of his belief’
  • D and V were effectively strangers, D’s belief is effectively based on a single advance, the judge was justified in concluding that there was insufficient evidence to raise an issue (i.e. the evidence was incapable of supporting reasonable belief in V’s consent)