R v BQL & AKO: The Court of Appeal Re-states the Capacity Test and Tightens the Galbraith Gatekeeping Function in Alcohol-Related Sexual Offence Trials

1. Introduction

In BQL & Anor, R. v ([2025] EWCA Crim 561) the Criminal Division of the Court of Appeal allowed a prosecution appeal under s.58 Criminal Justice Act 2003 and reversed a trial judge’s ruling of “no case to answer.” In doing so, the Court (Holroyde LJ VP; with Andrews LJ and Kerr J concurring) laid down important guidance on:

• How trial judges must approach submissions of “no case” (R v Galbraith) when the indictment involves sexual offences where the complainant was heavily intoxicated;
• The correct analytical distinction between (a) capacity to consent under s.74 Sexual Offences Act 2003 and (b) the fact of consent;
• The evidential value of behaviour that appears consensual but may simultaneously demonstrate incapacity caused by alcohol;
• The relevance of an accused’s post-incident lies when determining whether the case should reach a jury.

Although the factual matrix centres on alleged kidnapping, rape, assault by penetration and sexual assault, the wider importance of the decision lies in its recalibration of the Galbraith threshold in capacity-to-consent cases and its insistence that evidence apparently favouring consent may, on a different view, prove incapacity. This commentary unpacks the judgment, analyses the authorities considered, and evaluates its systemic impact.

2. Summary of the Judgment

The trial judge had stopped the case on all five counts—kidnapping, kidnapping with intent, rape, assault by penetration, and sexual assault—concluding under limbs 1 and 2(a) of Galbraith that the prosecution evidence, taken at its highest, could not yield a safe conviction. The Court of Appeal disagreed, holding:

1. The judge misapplied s.74 SOA 2003 by focusing on apparent consent while ignoring whether a reasonably directed jury could find the complainant (“C”) lacked capacity to choose due to extreme intoxication.
2. The ruling therefore involved an error of law (s.67(1)(b) CJA 2003) and was not one reasonably open to him (s.67(1)(c)).
3. There was a clear “case to answer” on every count; the proceedings are to resume before a different judge and venue.
4. An order under s.4(2) Contempt of Court Act 1981 postponed all reporting until after retrial; s.71 CJA 2003 reporting restrictions remain in force until then.

3. Analysis

3.1 Precedents Cited and Their Influence

• R v Galbraith [1981] 1 WLR 1039 – foundational test for “no case to answer.” The Court elaborated that limb 2(a) requires the judge to ask whether any reasonable jury could convict. The present judgment stresses that, in sexual offence cases where capacity is disputed, the judge must give the prosecution the benefit of both favourable and apparently unfavourable evidence when answering Galbraith.
• R v Bree [2007] EWCA Crim 804 – leading case on voluntary intoxication and consent. Bree drew a sharp line: if capacity is lost, consent is impossible even if apparent willingness exists; capacity may evaporate “well before unconsciousness.” Holroyde LJ re-endorses that passage (para 37) and treats it as determinative.
• R v H (Hysa) [2007] EWCA Crim 2056 – emphasised that capacity is ordinarily a jury issue. The Court cites this to show the trial judge’s premature usurpation of the jury’s function.
• R v Kamki [2013] EWCA Crim 2335 – addressed intoxication and evidential sufficiency; again supports leaving capacity to the jury.
• R v B [2008] EWCA Crim 1144 and R v M & T [2009] EWCA Crim 2848 – authorities on appellate restraint vis-à-vis trial judges’ rulings. Defence relied on these, but the Court found them inapposite because the judge’s legal error took his ruling outside the permissible range.

3.2 Legal Reasoning of the Court

The Court’s reasoning proceeds in seven linked steps:

1. Statutory Framework: s.74 SOA 2003 defines consent as agreement by choice, with freedom and capacity. Neither s.75 nor s.76 presumptions applied, leaving capacity to be assessed factually.
2. Correct Question Under Galbraith: The judge asked whether the evidence demonstrated absence of consent; he should have asked whether a reasonable jury could find C lacked capacity to consent. This is a lower evidential threshold.
3. Dual Character of Evidence: Behaviour that seems consensual (kissing, explicit sexual dialogue) may be viewed alternatively as evidence of disinhibition and incapacity due to alcohol. A trial judge must not ‘lock’ evidence into a single interpretive box.
4. CCTV and Bedroom Audio: The Court itemised eight strands of evidence—severe intoxication, inability to stand, falls, “frogmarching” into the house, slurred speech, loss of memory, scientific findings, and potential lies. When combined, these strands provide a palette from which a jury could paint a picture of incapacity.
5. Kidnapping Counts First: The Court reversed the judge’s sequencing. Commencing with counts 1-2 (kidnapping) illuminated C’s capacity contextually, which then coloured the sexual counts.
6. Relevance of Accused’s Lies: Post-incident lies can support the inference that the accused knew C lacked capacity, thus undermining any supposed reasonable belief in consent.
7. Ultimate Error of Law: By treating the same evidence as solely exculpatory and by mis-formulating the Galbraith question, the judge’s ruling was not reasonable and fell within s.67 grounds for reversal.

3.3 Potential Impact on Future Cases

The judgment is likely to reverberate in at least four dimensions:

1. Galbraith Applications in Sexual Cases – Judges must re-examine whether apparently “pro-defence” material may simultaneously sustain the prosecution on capacity, reducing premature terminations.
2. Trial Strategy – Prosecutors will foreground capacity evidence (level of intoxication, incoherent speech, loss of memory) at half-time; defence counsel must be ready with expert or contextual rebuttal.
3. Jury Directions – Trial judges will need robust directions distinguishing (a) “willing behaviour” from (b) the legal ability to choose. Directional templates may be revised to incorporate the Court’s language.
4. Documentation & Digital Evidence – The VP’s practical note (para 59) on unplayable multimedia emphasises procedural diligence. Expect closer compliance with the CA(CD) Guide and possible judicial case management orders mandating pre-hearing technology checks.

4. Complex Concepts Simplified

• Capacity vs. Consent – “Consent” requires both choosing and having the ability (capacity) freely to make that choice. Extreme intoxication can remove capacity, so apparent agreement is meaningless.
• Galbraith Limb 2(a) – At half-time, the judge asks: “Could a properly directed jury possibly convict?” If yes, the case continues. The judge does not weigh evidence but views it “at its highest.”
• s.58 CJA 2003 Appeal – Allows the prosecution to appeal a terminating ruling (like “no case to answer”) before jeopardy attaches, provided the prosecution gives an “acquittal undertaking.”
• Reporting Restrictions – s.71 CJA 2003 anonymises defendants pending appeal; s.4(2) Contempt Act lets the court postpone publicity to protect the integrity of future trials.

5. Conclusion

BQL & AKO re-emphasises that capacity is the fulcrum of consent in alcohol-induced cases and that judges must not prematurely withdraw such cases from juries by misreading seemingly consensual conduct. The Court of Appeal sharpened the Galbraith test, insisting that the same evidence may cut both ways, and the jury must be allowed its province. Future half-time submissions in sexual cases involving drink or drugs will now face a steeper hill.

Beyond doctrinal clarifications, the decision signals a procedural message: digital evidence must be accessible; arguments must be tightly framed. As the retrial proceeds, the legal community will watch how these principles translate in practice, but the appellate precedent is already set: capacity first, consent second; leave borderline assessments to the jury.