R v Bree [2007] EWCA Crim 804
R v Bree explains how voluntary intoxication affects consent to sexual activity under the Sexual Offences Act 2003. Alcohol may remove a person's capacity to choose, but intoxication short of that point does not automatically negate consent.
Facts
Bree and the complainant spent an evening drinking heavily before returning to a house and engaging in sexual activity. The complainant accepted that some earlier activity was consensual but said that she could not remember the intercourse alleged as rape. She had been sick and described periods of impaired memory. Bree maintained that she had consented. At trial, the judge directed the jury on consent and capacity under the Sexual Offences Act 2003, but the direction risked treating a lack of memory or substantial drunkenness as equivalent to an absence of consent. Bree was convicted of rape and appealed against the safety of the conviction and the adequacy of the directions given.
Legal Issue
When does alcohol prevent legally effective consent under section 74 of the Sexual Offences Act 2003, and how should a jury assess capacity?
Held
The Court of Appeal quashed Bree's conviction. Section 74 defines consent as agreement by choice where the person has freedom and capacity to make that choice. The court stressed that a person who has lost the capacity to choose cannot consent. However, a person may remain capable of choosing despite drinking heavily, and agreement made while intoxicated remains consent. Memory loss after the event does not by itself prove that capacity or consent was absent at the relevant time. The jury must examine the complainant's actual state and conduct when intercourse occurred, together with whether the defendant reasonably believed that she consented. The trial direction had not enabled a sufficiently clear assessment of those questions.
⭐ Legal Principle
Under section 74 of the Sexual Offences Act 2003, intoxication invalidates consent when it removes the freedom or capacity to choose. Drunken agreement may still be consent before that point. The inquiry concerns capacity and agreement at the time of the sexual act, not merely the amount consumed or later inability to remember.
Significance
Bree is the standard authority for distinguishing intoxication from incapacity in rape cases. It avoids two inaccurate propositions: that any drunken agreement is invalid, and that extreme drinking necessarily proves consent. The decision must be applied with sections 1 and 74 of the 2003 Act, including the separate requirement that the defendant's belief in consent be reasonable. Evidential presumptions in sections 75 and 76 may also arise on different facts. The case is frequently used to test careful, fact-sensitive analysis rather than reliance on labels such as drunk, unconscious or forgetful.
Common exam questions about this case
Does heavy intoxication automatically mean that a complainant did not consent?
No. The legal question is whether the complainant retained the freedom and capacity to choose and in fact agreed at the relevant time. Heavy drinking is powerful evidence but does not supply an automatic answer. If capacity was lost, there could be no consent. If capacity remained, an intoxicated agreement could still satisfy section 74, subject to the circumstances proved.
Why is later memory loss not conclusive under R v Bree?
A person may be capable of making a choice while intoxicated yet later have no reliable memory of doing so. The jury must therefore assess evidence about the person's condition, words and actions when the sexual activity occurred. A later blank in memory may support the prosecution case, but it does not by itself establish either incapacity or absence of agreement at the relevant moment.
What must the prosecution prove in addition to the absence of consent?
For rape under section 1 of the Sexual Offences Act 2003, the prosecution must also prove intentional penetration and that the defendant did not reasonably believe the complainant consented. Whether a belief was reasonable is assessed in light of all the circumstances, including any steps taken to ascertain consent. Capacity and actual consent concern the complainant; reasonable belief is a distinct issue concerning the defendant.