The defendant was charged with rape. It was the prosecution case that, following consensual vaginal intercourse with the complainant, he then withdrew and forced his penis into her anus without her consent. There was no dispute that anal penetration took place. The defendant’s primary case at trial was that the complainant had consented to that act. Alternatively, if the jury were sure that she did not consent, he had reasonably believed that she had done so. A psychologist instructed for the defendant and a psychiatrist for the prosecution agreed that the defendant met the diagnostic criteria for autism. The parties’ agreed facts in relation to that diagnosis of autism focused on the implications of his reaction (of laughter) following the incident. His autism was not advanced as being relevant to any issue of consent. The defendant was convicted. He applied for leave to appeal against conviction on the ground that the jury should have been directed to take his autism spectrum condition into account when considering whether his belief that the complainant had consented to the anal penetration was, or might have been, reasonable. The defendant also sought to call additional expert evidence to demonstrate that his autism should have been treated as relevant to the issue of reasonable belief in consent.
On the application—
Held, application for leave to appeal refused. Depending on the evidence in the case, the fact that a defendant accused of rape had autism might be relevant to the question of whether a belief in consent was reasonable, and the jury might need to be directed accordingly. However, if the expert evidence did not engage with the evidence in the case and did not tether any opinions expressed to that evidence, a direction to the jury that they should take the defendant’s autism into consideration would serve only to confuse them. In the present case the psychiatric experts who examined the defendant described any contribution of the his autism to his belief in the complainant’s consent as a theoretical possibility and their reports did not show that his autism was, or might have been, relevant to his belief in the complainant’s consent or the reasonableness of that belief, by reference to the circumstances of the case. A theoretical possibility of the kind described by the experts could not assist a jury meaningfully. Accordingly it was not necessary or expedient in the interests of justice for the additional expert evidence to be admitted; the conviction was not unsafe (paras 79, 80, 81, 85, 102, 105, 110, 111).
Julia Smart KC and David Lawson (instructed by SinclairsLaw Ltd) for the applicant.
Jollyon Robertson (instructed by the Crown Prosecution Service, Appeals Unit) for the Crown.