Gray v R ([2025] EWCA Crim 1042): Clarifying Jury Directions on Consent, Grooming and Reasonable Belief in Rape Prosecutions

Introduction

In Gray v R the Court of Appeal (Criminal Division) revisited three perennial difficulties in rape prosecutions that arise where there is a background of long-term grooming:

Whether overt evidence of non-consent is required to leave a count of rape to the jury.
How a trial judge should direct the jury on consent and on the defendant’s reasonable belief in consent without impermissibly shifting the burden of proof.
The proper approach to findings of dangerousness and to the level of sentence where the offending is prolonged and multi-faceted.

The appellant, a 61-year-old paramedic, was convicted of multiple sexual offences — including two counts of rape and a count of controlling and coercive behaviour — against a single complainant (“C”) whom he had groomed from the age of 13. He received an extended determinate sentence of 24 years (20 years’ custody, 4 years’ extended licence). On appeal he challenged both conviction and sentence.

Summary of the Judgment

Lady Justice Andrews, delivering the judgment of the court, dismissed all grounds of appeal. The court held that:

There was ample circumstantial and direct evidence from which a properly-directed jury could be sure that C did not give true consent (Ground 2).
Although the judge’s directions on consent and reasonable belief were “far from perfect”, taken as a whole they did not reverse the burden of proof and adequately reflected the principles in R v Ali and the Sexual Offences Act 2003 (Grounds 3 & 1).
The trial judge was entitled to find the appellant dangerous under s.308 Sentencing Act 2022 and to impose an extended sentence; the 20-year custodial term, though severe, was within the permissible range.

Detailed Analysis

1. Precedents Cited and Their Influence

R v Ali (Yasir Irfan) [2015] EWCA Crim 1270
Reaffirmed that in grooming cases the prosecution need not adduce explicit “no” evidence; the cumulative effect of grooming may vitiate consent. The Court in Gray leaned heavily on Ali’s passages (paras 56-61) when rejecting the “no case to answer” argument.
R v Malone [1998] 2 Cr App R 447
Cited for the spectrum of evidence capable of demonstrating lack of consent beyond verbal resistance.
R v H [2007] EWCA Crim 2056
Underlined that questions of consent are ordinarily jury matters unless the evidence compels only one answer — applied to refute the submission that the judge should have withdrawn the rape counts.
R v Busharat [2024] EWCA Crim 1496
Recent confirmation of Ali’s approach; used illustratively.
Specimen Directions in the Judicial College Crown Court Compendium (not authority but influential). The court compared the judge’s “route to verdict” with the specimen model to assess possible burden-shifting.

2. The Court’s Legal Reasoning

a) Sufficiency of Evidence on Consent

The defence framed Ground 2 on the premise that C’s Achieving Best Evidence (ABE) interview contained statements suggestive of consent. The court, however, emphasised the contextual matrix: thousands of grooming messages, guilty pleas to child-sex offences, and direct answers by C denying consent. Applying Ali, the court concluded that compliance under grooming can mask lack of free agreement; therefore the issue was for the jury.

b) Directions on Consent

Criticism focused on a passage where the judge itemised factors (age gap, “angel” fantasy, gifts, etc.) that could undermine genuine consent. The appellate court held that:

The case was one “in which the jury required judicial assistance in a difficult area of the law”.
The judge was entitled to mirror the language of Ali; identifying evidential factors did not usurp the jury’s fact-finding role.
Although the structure could have been clearer, the directions, read as a whole, conveyed that the prosecution must make the jury sure that C did not freely consent.

c) Directions on Reasonable Belief and the Route to Verdict

The “route to verdict” originally contained a drafting error that the jury themselves spotted. The corrected document omitted explicit references to the burden of proof in Q3 and Q4. The appellate court accepted it was “sub-optimal” but found reassurance in:

Repeated use of “may have believed” which implicitly preserved the doubt test;
Standard burden-of-proof directions within the summing-up;
The jury’s own note, evidencing their comprehension and vigilance.

“This case illustrates the importance of trial judges subjecting their routes to verdict to careful scrutiny, to ensure that there is no room for interpreting them as reversing the burden of proof.”

d) Dangerousness and Sentence

Applying s.308 Sentencing Act 2022, the Court upheld the finding that the appellant posed a significant risk of serious harm notwithstanding:

His age (61 at sentence; ~75 at release);
A probation report rating re-offending risk as “medium”.

The court underscored that “risk of reconviction” and “risk of serious harm” are distinct. The extensive grooming, voyeurism, and expressed views trivialising incest/child sex pointed to enduring sexual preoccupation.

On tariff, the court considered the offending “of particular gravity”. Multiple rapes, prolonged grooming, monetary exploitation, and presence of a child in the household warranted a custodial term above guideline range. A 20-year term, though heavy, was not manifestly excessive.

3. Impact of the Judgment

Reinforces that overt resistance is unnecessary in grooming-rape prosecutions; juries may infer lack of consent from the totality of circumstances.
Provides practical guidance on drafting routes to verdict: every ingredient should be prefaced (or implicitly governed) by the “are you sure?” formula to avoid burden-reversal arguments on appeal.
Signals the Court’s willingness to uphold extended sentences for non-violent but manipulative sexual predators where risk is driven by psychological control rather than force.
Encourages probation authors and judges to distinguish between likelihood of re-offence and gravity of potential harm when assessing dangerousness.

Complex Concepts Simplified

Grooming: A course of conduct whereby an offender builds trust and dependency to facilitate sexual exploitation. Compliance by the victim does not equal free consent.
Consent (Sexual Offences Act 2003, s.74): Agreement by choice, with freedom and capacity to choose. Grooming can remove freedom, nullifying consent.
Reasonable Belief in Consent: Even if the complainant does not consent, the defendant is not guilty if he honestly and reasonably believed she consented. The prosecution must disprove either honesty or reasonableness.
Route to Verdict: A written decision-tree given to jurors; each question mirrors a statutory ingredient. It must never imply that the defence bears any burden.
Dangerous Offender (Sentencing Act 2022, s.308): An offender who poses a significant risk to the public of serious harm through future specified offences; enables extended determinate sentences.
Extended Determinate Sentence (EDS): A custodial term plus an extended licence period. The offender serves two-thirds of the custodial term before parole eligibility and is subject to supervision on release for the extension.

Conclusion

Gray v R does not revolutionise the law but it crystallises best practice in grooming-related rape trials. The Court of Appeal firmly endorsed:

Leaving consent questions to the jury where grooming might have vitiated true agreement, even absent verbal resistance.
Detailed, case-specific directions that marry legal principles to the evidential landscape, provided the jury are reminded that the issues remain theirs to decide.
Scrupulous drafting of routes to verdict to reflect — explicitly or implicitly — that the prosecution bears the burden throughout.
Robust application of the dangerousness provisions where psychological manipulation demonstrates an ongoing risk.

Future prosecutions will cite Gray as authority that grooming cases can, and should, reach the jury on the issue of consent; that appellate intervention is unlikely where directions, though imperfect, fairly convey the legal essentials; and that extended sentences remain an apt tool against sexual predators whose weapon is control rather than force.