Abstract
On the 15 September 2022, the Applicant (RJ), who at the time was a practising barrister, was convicted of one count of rape (s.1 Sexual Offences Act 2003) following retrial at the Central Criminal Court and sentenced to 4 year's imprisonment. Although the incident took place in September 2017, RJ was not charged until June 2020. Following charge, RJ was diagnosed with an Autism Spectrum Disorder (ASD) leading to a further delay in the proceedings which eventually culminated in RJ's conviction.
RJ and the complainant (L) met via a dating app in August 2017 and subsequently commenced a consensual sexual relationship. On the 17 September 2017, RJ and L engaged in consensual vaginal intercourse during which RJ raped L ‘by forcing his penis into her anus without her consent’ (at [3]). The prosecution case was that, after engaging in sex from behind, RJ told L to ‘wait there’ and ‘without any discussion or warning, he forced his penis into her anus’ (at [24]). RJ continued with the penetration for 20–30 s despite being told to stop twice and only withdrew when L ‘screamed “get off”’ (at [24]).
The basis of RJ's defence at trial was that L consented to the penetration or, if she did not consent, RJ had a reasonable belief in her consent at the material time. RJ ‘denied that the penetration lasted for anything like 20 or 30 s’ (at [30]). He asserted that ‘when he spread L's buttocks it would have been obvious to her what he was doing, and she had ample time to tell him to stop’ (at [30]) and that he withdrew ‘immediately’ (at [29]) when asked to do so.
At trial, expert evidence, drawn from two reports by expert psychiatrists, was admitted as ‘Agreed Facts’ (at [14]). Neither expert was called to give evidence. The ‘Agreed Facts focused on the implications of the applicant's behaviour after the incident’ (at [14]) in part to explain the defendant's behaviour (including laughing at the complainant) in the immediate aftermath of the incident and in part to explain the content of derogatory and insensitive text messages about the incident and the complainant sent by RJ to a friend afterwards. RJ's ASD diagnosis was not advanced as being relevant to the issue of consent or the reasonableness of RJ's belief in consent (at [11]).
Following refusal of an application for leave to appeal by a single judge, RJ renewed his application for leave to appeal to the full court. The basis of RJ's appeal, relying on ‘observations’ (at [19]) by the Court of Appeal in R v B (MA) 2013 EWCA Crim 3, was that:
The jury were not given sufficient information on the applicant's autism and its relevance to his belief that L was consenting to anal intercourse; The jury were not directed by the judge that autism was a relevant characteristic of the applicant when assessing whether his belief in that consent was, or may have been, reasonable (at [19]).
In support of his application RJ sought to rely on additional expert psychiatric evidence in the form of post-trial reports provided by the two experts, a summary of whose evidence was admitted at trial as Agreed Facts.
The expert evidence that was sought to be introduced was problematic for two reasons. No explanation was provided for differences in the reports provided by the same experts before and after the trial. The reports dealt with ‘theoretical’ possibilities (see e.g. [102] & [107]) and were insufficiently specific including about how RJ's autism ‘was, or might be, relevant to whether any belief by the applicant in L's consent was reasonable’ (at [101]). Therefore, the Court determined that there were ‘significant difficulties in terms of admissibility of the fresh expert evidence… and reliability more generally’ (at [108]). Additionally, ‘no reasonable explanation for the failure to adduce the expert evidence at trial’ (at [109]) was provided and as such the Court held that it was ‘not necessary or expedient in the interests of justice for the additional expert evidence to be admitted’ (at [110]).
Commentary
The present case provides some guidance in relation to two interesting questions. The first, to what extent might a diagnosis of ASD be relevant when determining the reasonableness of a defendant's belief in consent to sexual activity? The second, in what circumstances might a court rely on expert evidence when considering this issue? These issues will each be considered in turn.
Section 1 Sexual Offences Act 2003 (the 2003 Act) requires inter alia the prosecution to prove to the criminal standard of proof that a defendant did not have a ‘reasonable belief in consent’ at the material time. According to s.1(2) of the 2003 Act; Whether a belief is reasonable is to be determined
The introduction by the 2003 Act of a requirement that D's belief in consent much be a ‘reasonable’ one was a deliberate decision to move to an objective test, following extensive criticism (see Home Office, Setting the Boundaries: Reforming the Law on Sexual Offences, July 2000, Vol I) of the previous requirement that D need only have a (subjectively) ‘honest’ belief in consent (DPP v Morgan [1976] A.C. 182). The introduction by s.1 of the 2003 Act of a requirement that D has an (objectively) reasonable belief in consent expressly abrogated the previous approach in DPP v Morgan.
The requirement that the reasonableness (or otherwise) of D's belief be determined by ‘having regard to all the circumstances’ leaves open the question of exactly what ‘circumstances’ might be relevant to such a determination? The 2003 Act gives no further guidance or exemplars relating to the meaning of ‘circumstances’ in this context. The present case goes some way to confirming that, at least in some situations, a defendant's ASD may be a relevant consideration, albeit one that will require sufficient (and specifically relevant) evidence.
The Relevance of Autism Spectrum Disorder to the ‘Reasonableness’ of a Defendant's Belief
Central to RJ's application for leave to appeal in the present case were the obiter dicta observations of the Court of Appeal in R v B(MA), as articulated by Hughes, LJ in the following terms; It does not follow that there will not be cases in which the personality or abilities of the defendant may be relevant to whether his positive belief in consent was reasonable. It may be such that cases could arise in which the reasonableness of such beliefs depends on the reading by the defendant of subtle social signals, and in which his impaired ability to do so is relevant to the reasonableness of his belief. (R v B (MA) at [41])
In R v B (MA), where the defendant's condition was ‘best diagnosed as paranoid schizophrenia’ (R v B (MA) at [20]), the defendant's appeal failed on the basis that ‘the defendant's illness did not affect his ability to understand whether or not his partner was saying no’ (R v B (MA) at [34]) or, if that were not the case, the defendant's belief was so delusional as to render it unreasonable.
In the present case, RJ argued that the trial judge erred in failing to leave the evidence of his ASD diagnosis to the jury as being relevant to whether he had a reasonable belief in consent at the time of the relevant sexual activity. Whilst the Court of Appeal rejected this argument based on the specific facts of the case and the evidence presented, it confirmed that ‘…depending on the evidence, the fact that a defendant accused of rape has autism may be relevant to the question of whether a belief in consent was reasonable, and the jury may need to be directed accordingly’ (at [81]).
The decision of the Court of Appeal provides some clarity in respect of this issue, confirming the position of Hughes LJ that ‘delusional beliefs could not in law render reasonable a defendant's belief in consent’ (at [77]) but also that, whilst ASD is not relevant to the reasonableness (or otherwise) of a defendant's belief in consent ‘as a matter of principle’, it may be relevant based on the specific ‘facts of the case and the issues that may arise’ (at [80]). As such, depending on the specific facts of the case, ASD can constitute a relevant ‘circumstance’ when determining the reasonableness of a defendant's belief in consent. Where ‘a defendant has demonstrated an inability to recognise behavioural cues, his belief in consent may be reasonable or unreasonable depending on the specific evidence adduced in his case’ (at [80]). In such circumstances’ the question of whether a specific direction to the jury is required is likely to turn on the ability of the defence to adduce sufficiently reliable expert evidence about the specific relevance of the defendant's ASD to the question of the reasonableness of D's belief in consent.
Adduction of ‘Fresh’ Expert Evidence: The Importance of Relevance and Reliability
As per Part 7 of the Criminal Practice Directions (Crim PD) 2023, ‘Expert opinion evidence is admissible in criminal proceedings if, in summary:
It is relevant to a matter in issue in the proceedings; It is needed to provide the court with information likely to be outside the court's own knowledge and experience; The witness is competent to give that opinion; and The expert opinion is sufficiently reliable to be admitted’ [Crim PD, 7.1.1].
Experts have a duty to provide ‘objective and unbiased’ opinion ‘within the expert's area or areas of expertise’ (Criminal Procedure Rules (Crim PR) 2020, Part 19.2.1(a)) and the expert's duty to the court ‘overrides any obligation to the person from whom the expert receives instructions or by whom the expert is paid’ (Crim PD 2020, Part 19.2.2). The present case provides an interesting insight into the court's assessment of both the relevance and reliability of expert opinion evidence (and specifically expert psychiatric evidence) when determining whether such evidence should be admitted.
As discussed above, the court accepted that, in some specific circumstances, a diagnosis of ASD could be relevant to the question of whether a defendant formed an objectively reasonable belief in consent to relevant sexual activity. The expert evidence in this instance was provided by two experts, Dr Cumming and Dr Marshall. As identified above, the findings of Drs Cumming and Marshall, diagnosing RJ with ASD, were admitted at trial as Agreed Facts, specifically to address (and potentially explain) D's behaviour after the alleged incident. The expert opinion evidence was not admitted in respect of the question of the reasonableness of RJ's belief in consent. Following the trial, Dr Cumming prepared a further report based on letters supplied by RJ (at [57]). Dr Marshall provided an ‘addendum report’ again based on letters relating to the trial (at [62]).
The problem for the applicant in the present case was that the Court of Appeal ultimately determined that the expert evidence on which he sought to rely was both insufficiently relevant and insufficiently reliable to be admitted. It is important to consider each of these requirements separately as either could have provided a basis for the exclusion of the expert opinion evidence.
In terms of relevance, the Court of Appeal was particularly cognisant of the general nature of both expert's reports. In respect of Dr Cumming's evidence, the court identified that, even the elements purporting to support the applicant's position were ‘at best… a very tentative proposition’ (at [92]). The Court ultimately concluding that ‘The report did not show that the applicant's autism was, or might have been, relevant to his belief in L's consent or the reasonableness of that belief by reference to the circumstances of the case’ (at [94]). Similarly, Dr Marshall's evidence was criticised for failing to directly link ‘to evidence about the circumstances of the case’ (at [101]). The Court found it significant that Dr Marshall described the possibility of RJ's ASD impacting the reasonableness of his belief in consent as a merely a ‘theoretical possibility’. Indeed both expert's referred to the impact of the applicant's autism as ‘theoretical’ in parts of their reports (at [107]).
In R v Dunlevy [2021] EWCA Crim 39, the Court of Appeal observed that ‘expert evidence is not to be called on a serendipitous basis, in the hope or expectation that something useful will emerge’ (Dunlevy at [36]) it is incumbent on the expert (and consistent with their duties, outlined briefly above) that the ‘justification for applying to introduce the evidence must be set out in sufficient detail in the report…’ (Dunlevy at [36]). In Dunlevy, the expert evidence was subsequently excluded on the basis that ‘the doctor failed to base his analysis and conclusions on the evidence in the case as it related to the applicant rather than on generalities’ (Dunlevy at [37]). This is consistent with the decision in the present case. In general terms, this highlights the importance of an expert's evidence sufficiently addressing the specific factual issues raised by a particular case and highlight's particularly that expert evidence relating to the ‘general’ characteristics of ASD alone or the ‘theoretical’ impact of ASD on an individual's decision making, absent specific consideration of the factual basis of the case, is unlikely to be sufficiently relevant to be admitted.
Even if the expert evidence had been determined to be sufficiently relevant to warrant admission, the Court of Appeal also expressed reservations about the reliability of the evidence being considered. Historically, the reliability of expert evidence has been a matter going to the weight of the evidence rather than its admissibility but, since the decision of the Court of Appeal in R v Dlugosz [2013] EWCA Crim 2, that evidence must have a ‘sufficiently reliable scientific basis’ (Dlugosz at [11]) in order to be admissible, and the subsequent inclusion of a version of this requirement into the relevant Crim PD, the courts must now consider the reliability of expert opinion evidence when determining its admissibility. Further, the Crim PD contain a list of factors to be considered when determining reliability (Crim PD, 7.1.2) and factors which, if present, may detract from the reliability of expert opinion evidence (Crim PD 7.1.3). It is incumbent on the relevant expert(s) to assist the court in making this determination.
In the present case, both experts provided supplementary material to their initial reports following RJ's conviction and his subsequent correspondence with the experts. The Court of Appeal described elements of Dr Cumming's report as ‘ambiguous’ (at [89]) and Dr Marshall's account as ‘contradicted by her earlier report’ with the ‘lack of explanation for the apparent change in opinion’ described as ‘striking’ (at [100]). The Court observed that ‘an expert is entitled to change their mind, but if they do so they must clearly set out what the change of opinion is and the reasons for it’ (at [100]).
The decision in the present case highlights some important aspects of the process for admitting expert opinion evidence. Given the enhanced pre-trial scrutiny of reliability required by the Crim PD, the compliance by experts with their duties and obligations under the Crim PR is increasingly vital. Expert reports should make clear the relevance of the evidence based on the particular facts of the case and identify the basis for any conclusion or assertion, sufficient to allow for a proper assessment of reliability. Otherwise, evidence which is merely theoretical or which is presented in general terms may be excluded on the basis of a lack of relevance and evidence based on unsupported conclusions or which fails to account for ambiguity or contradiction is likely to be deemed insufficiently reliable to be admitted.