R v Bree [2007]

R v Bree [2007] EWCA Crim 804 established a crucial legal principle regarding consent in cases involving intoxication and sexual intercourse was addressed. The Court of Appeal emphasised that intoxication does not automatically invalidate consent under Section 74 of the Sexual Offences Act 2003. Instead, the determination of whether consent is vitiated by intoxication is a question of fact that hinges on the state of mind of the complainant.

The factual background of the case involved a situation where the victim engaged in sexual activity with the defendant while being highly intoxicated from alcohol. The defendant argued that, despite the victim being drunk, she was lucid enough to provide consent. However, the defendant was convicted of rape, leading to an appeal based on the contention that the trial judge failed to adequately address the issue of consent in the context of intoxication.

The Court of Appeal allowed the appeal, asserting that the judge had not provided sufficient direction on the matter. Sir Ivor Judge P, delivering the court's reasoning, clarified that under Section 74 of the Sexual Offences Act 2003, if the victim was intoxicated to the extent that she was unable to engage in sexual intercourse, then consent could not be considered to have been given.

Importantly, the court highlighted that a person can be intoxicated and still possess the ability to consent. Consent, in this context, may dissipate even before the individual becomes unconscious. The court emphasised the fact-specific nature of determining consent, relying on the actual state of mind of the individuals involved.

Furthermore, the court rejected the idea of creating a rigid grid system to establish consent based on the level of alcohol consumption. Recognising the complexities involved in assessing consent and intoxication, the court underscored the need for a nuanced and individualised approach, rejecting any oversimplified framework for determining consent in cases involving intoxication.

This case reinforces the importance of carefully evaluating the circumstances and the mental state of the parties involved when assessing whether consent is present in cases where intoxication is a factor.
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