Cannabis Evidence and “Capacity to Consent”: No Duty to Direct on Capacity (or Require Expert Evidence) Where Capacity Is Not Put in Issue

3.1 Precedents Cited

The judgment does not cite prior case authorities by name. Its reasoning is instead grounded in:

• Sexual Offences (Amendment) Act 1992, establishing lifetime complainant anonymity (subject to waiver/lifting under section 3).
• section 45 of the Youth Justice and Criminal Evidence Act 1999, permitting reporting restrictions for a defendant under 18 and highlighting that such an order does not “tie the hands” of the Crown Court regarding any future “excepting direction” under section 45(4) or (5).
• The mechanism of a “section 34 direction” (as described in the judgment) on drawing adverse inferences from silence in interview, applied in a tailored way to specified “facts” later relied upon at trial.

The absence of case citations is itself instructive: the Court treated the appeal as turning on orthodox trial-management and summing-up principles— identifying what was actually in issue, what the jury were actually told, and whether any wording created a real risk of an unsafe verdict.

3.2 Legal Reasoning

(A) Cannabis evidence: lay descriptions, not “expert-only” territory

The Court rejected the idea that cannabis effects required expert evidence in this case. C1 and C2 each gave direct evidence of how they felt after smoking cannabis allegedly provided by the appellant; the jury could decide what weight to give that evidence without expert assistance. In particular, the Court upheld the trial judge’s refusal to direct that (absent expert medical evidence) the jury could not infer that C1’s later collapse (18 June 2024) was caused by cannabis—because it was a permissible, “obvious” inference the participants themselves drew at the time, and it was not central.

(B) Proper scope of cross-examination: drugs as alleged “vulnerability” evidence

The Court held the prosecution was entitled to test whether the appellant supplied cannabis as part of a “plan” to make C2 more vulnerable to sexual assault. Importantly, the Court emphasised that the permissibility of this line of questioning did not depend on the intoxicant being alcohol rather than cannabis.

(C) “Capacity to consent” was not an issue simply because drugs were mentioned

A key appellate move was to distinguish between (i) drug use being part of the narrative and potentially relevant to fear, resistance, and how events unfolded, and (ii) drug use raising a legal question about capacity. The Court repeatedly anchored the analysis to what the case actually was: C2’s prosecution account was that she had capacity but did not consent, she communicated objection, and she submitted through fear. She was cross-examined on the basis that she was conscious and understood what was going on (i.e., the defence did not litigate capacity either).

The Court accepted that certain prosecution phrasing (“knocked out”; “knocked her sideways”) was “somewhat infelicitous”, but found no realistic risk the jury would infer unconsciousness or incapacity, especially given the full context of speeches and evidence.

The Court further noted that no one at trial—counsel or judge—treated capacity as live. While acknowledging that, in hindsight, a clarificatory direction (e.g., confirming capacity was accepted; explaining that intoxicated consent can still be consent) might have “obviated” later concerns, the absence of such a direction did not render the convictions unsafe.

(D) “Section 34 direction”: the appeal failed on the facts of what the jury were told

The adverse inference complaint was described as proceeding on a “non-existent premise”. The judge’s first draft direction was amended after discussions: the final direction removed reference to any failure to mention in interview that C2 brought cannabis to the flat.

The final direction focused on specified omissions: that the appellant had vaginal/oral sex with C2, that she consented freely, and that she initiated contact. The jury were reminded of the appellant’s explanation (acting on legal advice). The Court also noted the jury knew police did not question the appellant about drugs, which the Court described as “completely irrelevant” to the section 34 analysis.

Although the judge’s phrasing (“consented freely and not under the influence of drugs”) could have been better, the Court found it could not realistically have driven an unsafe verdict in a trial that “boiled down” to credibility and consent, rather than interview silence.

(E) Cross-admissibility point

The appellant argued that any flaw affecting convictions on the counts concerning C2 would necessarily undermine the safety of the single guilty verdict relating to C1 (Sunday morning), due to a cross-admissibility direction. Since the Court found no unsafe feature in the C2 convictions, that consequential argument did not assist.

3.3 Impact

• Capacity directions are issue-driven: the decision underscores that a trial judge is not required to direct on capacity to consent where it is not in issue on the parties’ cases and the complainant’s account is advanced on a capacity-present basis (capacity but no consent).
• Drug evidence is not automatically “expert evidence”: juries may assess lay evidence about experienced effects of cannabis; expert evidence is not a default requirement merely because intoxication is part of the narrative.
• Appellate focus on the “trial in the round”: infelicitous turns of phrase (in cross-examination or directions) will not found successful appeals absent a demonstrated “real risk” of jury misapprehension affecting safety.
• Precision in “section 34” directions: the judgment illustrates best practice—identifying the specific facts said to have been omitted and avoiding irrelevant matters (here, cannabis sourcing) that could distract or confuse.