Presumptions against consent and
belief in consent
24. This leads us on to the presumptions in Clause
78, relating to consent and belief in consent.[31]
As originally drafted, Clause 78 was probably the most confusing
provision in the whole Bill. The Clause provided for two different
kinds of presumptions—rebuttable presumptions (which shift
the burden of proof onto the defendant) and conclusive presumptions
(which determine an issue conclusively). The same clause was also
drafted for two purposes: first, to guide the jury on the issue
of consent and, secondly, to restrict the use of mistaken belief
in consent as a defence to a charge. As a result, the drafting
was cumbersome and attracted much criticism from judges and lawyers.[32]
25. During the course of this inquiry, Clause 78
has also been amended substantially and the presentation of the
provisions is now much improved. In particular, the original Clause
has been split into two (now Clauses 76 and 77) to separate the
rebuttable from the conclusive presumptions.
The rebuttable presumption against belief in consent
26. If implemented, the presumptions will apply only
in circumstances where the defendant used violence or threats
of violence against the complainant or a third party, where the
complainant was unlawfully detained, asleep or otherwise unconscious,
or where the complainant was unable, because of a physical disability,
to communicate consent (new Clause 76(2)).
27. As originally drafted, the presumptions in Clause
78 placed an 'evidential' burden on the defendant in relation
to the issue of consent and a 'persuasive' burden on the issue
of belief in consent. The difference between these two concepts
is explained in Cross and Tapper on Evidence:
"The evidential burden has been defined as the
obligation to show, if called upon to do so, that there is sufficient
evidence to raise an issue as to the existence or non-existence
of a fact in issue. The persuasive, 'legal', or 'probative' burden
has been defined as the obligation of a party to meet the requirement
of a rule of law that a fact in issue must be proved or disproved."[33]
28. Therefore, under the original drafting, the defendant
was required to rebut the presumption against a belief in
consent by proving that he did believe in the other party's
consent. This was far more onerous than the 'evidential' burden
which applied in relation to the issue of consent. Furthermore,
the task of proving a belief in consent was said to be made more
difficult by the operation of the complicated test of reasonableness
which (then) existed under Clause 1(3). Some argued that the combined
hurdle was "insurmountable".[34]
29. Following a sequence of amendments, new Clause
76 now gives rise to an evidential presumption only, which applies
both to consent and belief in consent.[35]
Introducing the amendments, the Minister of State in the Home
Office, Baroness Scotland of Asthal QC, explained that:
"In order for these presumptions not to apply,
the defendant will need to satisfy the judge from the evidence
that there is a real issue about consent [or belief in consent]
that is worth putting to the jury. The evidence relied on may
be, for example, evidence that the defendant himself gives in
the witness box, or evidence given on his behalf by a defence
witness, or evidence given by the complainant during cross-examination.
If the judge is satisfied that there is sufficient evidence to
justify putting the issue of consent to the jury, then the issues
will have to be proved by the prosecution in the normal way.
If the judge does not think the evidence relied on
by the defendant meets this threshold, he will direct the jury
to find the defendant guilty, assuming the jury is sure that the
defendant did the relevant act, that the circumstances in subsection
(2) applied and that the defendant knew that."[36]
30. During our inquiry, some organisations argued
that the list of circumstances giving rise to the presumption
should be non-exhaustive or, alternatively, extended to include
other situations, such as where the complainant is too drunk or
drugged to give consent.[37]
Others criticised the provision—and its interrelationship
with Clause 1(3)—as complex, unfair and unworkable.[38]
However, Hilary Benn, Parliamentary Under-Secretary in the Home
Office, told us that the presumptions will be "an assistance
to the jury in guiding them through the process".[39]
He added that they are intended to "send out a very clear
message that does shift the balance in favour of the complainant".[40]
31. We support the amended Clause 76. In our view,
the circumstances which will give rise to a rebuttable presumption
against consent or a belief in consent are all situations in which
consent is generally absent. Accordingly, we do not find it unreasonable
to require the defendant—in those circumstances—to
show sufficient evidence to raise a real issue about consent,
or his belief in consent, before the matter can be put to the
jury.
Conclusive presumptions against consent and belief
in consent
32. New Clause 77 sets out two circumstances in which
it will be conclusively presumed that the complainant did not
consent and the defendant did not believe in consent (Clause 77(2)).
These arise where the defendant has induced submission to sexual
activity, first by deceiving the complainant about the nature
and purposes of the act[41]
and, secondly, by impersonating another person known to the complainant
(such as a husband or partner). In support of the (amended) Clause,
the Minister of State in the Home Office, Baroness Scotland of
Asthal QC, stated:
"The conclusive presumptions are based on existing
statute and case law and we are satisfied that it is right that
the new legislation should reflect that position."[42]
33. As originally drafted, the Bill also provided
that it would be conclusively presumed that the defendant did
not act in a reasonable way to resolve a doubt about consent (under
Clause 1(3)) if he formulated his belief on the basis of something
said or done by a third party. This gave rise to particular concerns,
for example, Liberty believed that it would be "unduly onerous
for defendants who are frequently in the position of finding they
have very little positive defence to sex allegations other than
"your word against mine".[43]
In addition:
"The noble Lord, Lord Carlile [of Berriew QC]
suggested that it would be unfair to impose a conclusive presumption
in relation to the reasonableness test where the defendant was
a person with a mental disorder or learning disability, who could
not be expected to understand that a third party was deceiving
him as to the truth."[44]
The Government has responded positively to these
criticisms by removing this provision from the Bill.
34. We support the amendment to Clause 77, which
we believe has addressed the key concerns about the conclusive
presumptions. The amended Clause is now confined to two very specific
(and indeed unusual) situations involving deception and impersonation,
both of which reflect the existing law.
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