Capacity/Consent as Jury Issues and Consecutive Extended Sentences Upheld Where Total Sentence Is Just and Proportionate

1. Introduction

R. v Mullen ([2026] EWCA Crim 120) is a decision of the Court of Appeal (Criminal Division) addressing (i) when a rape allegation involving intoxication and intermittent consciousness can properly be withdrawn from a jury on a submission of no case to answer, and (ii) the lawfulness of consecutive extended sentences for separate rapes committed against different complainants years apart, viewed through the lens of the totality principle.

The offender was convicted at Bristol Crown Court of two rapes against two different women, each met via online dating apps: KG (count 1, 2016) and JL (count 2, 2021). The defence at trial was consent on both counts. On count 2, the jury were additionally directed on capacity to consent.

On appeal, the offender (i) renewed an application for leave to appeal conviction (arguing the Recorder should have upheld a no-case submission on count 2, and that count 1 was tainted by prejudice), and (ii) appealed sentence, challenging the imposition of consecutive extended sentences as contrary to totality and/or wrong in principle.

2. Summary of the Judgment

  • Conviction appeal: Refused. The Court held that consent, capacity (where relevant), and reasonable belief in consent were properly left to the jury on the evidence; this was not a case where “no reasonable jury properly directed could convict”.
  • Sentence appeal: Dismissed. Although a “lead sentence” structure would have aligned more closely with guideline discussion, the consecutive extended sentences producing a total of 14 years’ custody plus a combined 4-year extension were neither wrong in principle nor manifestly excessive given two distinct rapes, five years apart, against different women.

3. Analysis

3.1 Precedents Cited

R v Kamki [2013] EWCA Crim 2335

The Court relied on the orthodox approach to capacity to consent where intoxication is in issue, as summarised in Rook and Ward on Sexual Offences: Law and Practice (7th ed., para 1.313) “reflecting” R v Kamki [2013] EWCA Crim 2335, and consistent with the Crown Court Compendium (20–25, para 11).

The key influence is the distinction between (a) a complainant who retains the ability to choose, and (b) a complainant whose intoxication has eroded understanding and decision-making so that they are incapable of agreeing by choice. The Court treated JL’s evidence (blackouts, paralysis-like symptoms, inability to open eyes, drifting in and out) as capable of supporting a conclusion of loss of capacity and/or absence of free choice, despite features that might point the other way.

R v Mandzikwa [2023] EWCA Crim 478

On sentencing structure, the Court invoked R v Mandzikwa [2023] EWCA Crim 478 at [10] for the proposition that where the overall sentence is not manifestly excessive, an appeal is unlikely to succeed merely because a different concurrent/consecutive structure might have been preferable.

This authority anchored the Court’s tolerance of a less guideline-aligned structure (consecutive extended sentences rather than a lead extended sentence plus concurrency), provided the end result remains just and proportionate.

Other materials (not precedents, but influential)

  • Rook and Ward on Sexual Offences: Law and Practice (7th ed., para 1.313): used as an accurate encapsulation of the law on intoxication and capacity, reinforcing that “degree of consciousness” is fact-sensitive.
  • Crown Court Compendium (20–25, para 11): referenced as aligned guidance on directing juries where capacity is in issue.
  • Sentencing Council guideline on totality: central to the sentencing ground; the Court quoted its statements that there is “no inflexible rule” on concurrency/consecutivity and that the “overriding principle” is a just and proportionate overall sentence.
  • Sentencing Code (sections 267 / 280 as cited): used to frame the threshold and approach to extended sentences across multiple offences.

3.2 Legal Reasoning

(A) No case to answer and the jury’s constitutional role in consent/capacity disputes

The central appellate question on conviction was not whether the Court of Appeal would itself draw inferences about consent or capacity, but whether the Recorder was required to stop the case on count 2 because the evidence could not properly support conviction. The Court endorsed the Recorder (and single judge) that these were “quintessentially matters for the jury”.

The defence emphasis was that JL’s account included active participation and communication (including saying “no” when sore), suggesting retained capacity and making reasonable belief in consent inevitable. The Court rejected treating those features as determinative and instead stressed the totality of her condition: recurrent blackouts, inability to open eyes, paralysis-like immobility, extreme weakness, and the offender’s own acknowledgement (on his account) that he considered calling an ambulance.

The Court’s reasoning is that a jury could rationally conclude either:

  • JL lacked capacity because intoxication so impaired her that any “cooperation” was not the product of free choice; and/or
  • Even if capacity was not wholly absent, JL in fact did not consent, and the offender did not reasonably believe she consented given her state.

Importantly, the Court framed “active cooperation” as potentially ambiguous: it could be a free choice, or it could be compliance occurring while drifting in and out of consciousness. That ambiguity is precisely why the case was for the jury.

(B) Consecutive extended sentences, totality, and appellate restraint

On sentence, the Court accepted the general principle (as advanced by the appellant using the totality guideline and the Sentencing Code) that extended sentences are often structured with (i) an extended sentence on one specified offence and (ii) concurrent determinate terms (or no separate penalty) on others, while ensuring custodial terms reflect totality and extension periods reflect public protection.

However, the Court held there was no impermissible departure on these facts because the overall outcome was justified: two separate rapes against different complainants, five years apart, with the second committed after arrest for the first, and involving multiple occasions of non-consensual sex. The Court treated the offender’s risk as “obvious and continuing”, justifying the combined four-year extension.

Even though the Recorder “might have structured the sentences differently”, the Court held there was no error of principle and the sentences were not manifestly excessive—reinforced by R v Mandzikwa [2023] EWCA Crim 478.

3.3 Impact

On trial practice: resisting premature withdrawal of rape allegations involving intoxication

The decision reinforces that where there is evidence capable of supporting (i) loss of capacity through intoxication and/or (ii) lack of free agreement, no-case submissions will rarely succeed. Even where complainant evidence contains features potentially consistent with consent (participation, communications, complex actions), those features do not automatically negate incapacity or negate the possibility that “cooperation” was not a free choice.

On evidential evaluation: “reasonable belief” in consent is highly fact-sensitive

The Court’s emphasis on the offender’s own account (considering calling an ambulance) is a practical reminder: the defendant’s admissions about a complainant’s condition can be powerful evidence undermining any asserted reasonable belief in consent.

On sentencing: structure matters less than outcome where outcome is proportionate

The case supports an approach that, even if guidelines suggest a preferred structure for extended sentences, appellate courts will focus on whether the overall sentence is just and proportionate. Consecutive extended sentences are not inherently unlawful; they may be upheld where separate serious offences justify a higher overall penalty and an extended period of protection.

4. Complex Concepts Simplified

  • Consent: agreement by choice, with freedom and capacity to make that choice.
  • Capacity to consent (intoxication): even if someone appears to participate, they may lack capacity if intoxication so impairs understanding/decision-making that they cannot truly choose.
  • Reasonable belief in consent: the question is not only what the defendant believed, but whether that belief was reasonable given what they saw/understood at the time (including signs of incapacity or distress).
  • No case to answer: a judge stops a case only where the evidence, taken at its highest for the prosecution, could not allow a properly directed jury to convict.
  • Extended sentence: a custodial term plus an additional “extension period” on licence aimed at protecting the public where the offender presents a significant risk of serious harm.
  • Totality principle: when sentencing for multiple offences, the overall sentence must be proportionate to the overall criminality; courts may use concurrent or consecutive terms, with no rigid rule.
  • Concurrent vs consecutive: concurrent sentences run at the same time; consecutive sentences are served one after another.

5. Conclusion

R. v Mullen confirms two practical propositions. First, where consent, capacity, and reasonable belief depend on disputed factual evaluation—especially in intoxication cases featuring blackouts and intermittent consciousness—those issues will ordinarily remain for the jury unless conviction is impossible on any proper view of the evidence. Second, in multi-offence sentencing involving extended sentences, appellate scrutiny centres on whether the overall custodial and extension outcome is just, proportionate, and protective of the public; a non-standard structure (including consecutive extended sentences) will not be overturned absent principle error or manifest excess.