R v Malik: “No Case to Answer” in Rape—Reasonable Belief in Consent is for the Jury; Absence of Steps to Ascertain Consent May Be Relevant

Citation: [2025] EWCA Crim 1832
Court: England and Wales Court of Appeal (Criminal Division)
Date: 20 November 2025
Judgment by: Lady Justice May

1. Introduction

This appeal concerned the safety of rape convictions where the defence argued that—on the prosecution evidence alone—no properly directed jury could be sure the defendant lacked a reasonable belief in consent. The appellant was convicted (10–1 majority) of three counts of rape contrary to section 1(1) of the Sexual Offences Act 2003. He later received a hospital order under section 37 of the Mental Health Act 1983 with a restriction order under section 41.

The complainant (“C”), aged 18, described an encounter in the early hours on the Richmond riverside in which she said she complied with oral and vaginal sex due to fear and intimidation by a stranger. The defence case was that the sexual activity was consensual and, at the least, appeared consensual to the appellant.

Key issue on appeal: whether the trial judge should have upheld a submission of no case to answer at the close of the prosecution case under the second limb of Galbraith, on the basis that the evidence that the appellant did not reasonably believe C consented was “so weak” that the case ought not to have been left to the jury.

2. Summary of the Judgment

The Court of Appeal dismissed the appeal, holding the convictions safe. It found that there was ample evidence on which a properly directed jury could conclude that the appellant did not reasonably believe C consented, given the surrounding circumstances known to him (including C’s age, intoxication and vulnerability; the late-night isolated setting; his sexualised and intimidating remarks; and C’s stated desire to go home).

The court emphasised that:

• Consent and reasonable belief in consent are distinct questions, but the evidence relevant to each may overlap.
• Section 1(2) of the Sexual Offences Act 2003 does not impose a legal duty to ask for consent; nevertheless, in some factual contexts, the absence of steps to ascertain consent may be a relevant circumstance for the jury.
• Applications under the second limb of Galbraith in rape cases turning on consent/belief will rarely justify removing the case from the jury where the complainant gives evidence of non-consent in circumstances capable of undermining reasonable belief.

3. Analysis

3.1 Precedents Cited

(a) Galbraith (no case to answer—second limb)

The defence application relied on the second limb of Galbraith: even where there is evidence, the judge may withdraw the case if the prosecution evidence is so weak, tenuous, or inherently unreliable that no properly directed jury could safely convict.

The Court of Appeal treated the issue as a classic allocation-of-function question: whether the evidence was so deficient as to justify judicial termination, or whether it remained a matter of evaluation for the jury. The court held the latter.

(b) R v Malone [1998] WL 1044362

Cited by the prosecution to support the proposition that a rape conviction does not require proof that the complainant said “no”. The relevance here was to counter the defence emphasis on the absence of explicit refusal or physical resistance as negating reasonable belief in consent. The court’s approach aligned with the broader point: the absence of “no” is not determinative; the jury assesses consent and belief from all circumstances.

(c) R v H [2007] EWCA Crim 2056

The court distinguished R v H [2007] EWCA Crim 2056 on the basis that H concerned “actual consent”, whereas this appeal centred on “reasonable belief in consent”. However, it adopted (and slightly adapted) Hallett LJ’s observations in H regarding the “pre-eminence” of consent issues as jury questions. The judgment treats that jury primacy as extending, in appropriate circumstances, to reasonable-belief determinations—particularly where the complainant’s account, if accepted, provides a coherent narrative of fear-based compliance.

Importantly, the court did not announce an automatic rule that evidence of non-consent necessarily supplies evidence negating reasonable belief. It expressly rejected such elision and insisted each case turns on its facts.

3.2 Legal Reasoning

(a) The statutory framework: Sexual Offences Act 2003, section 1

The court anchored its analysis in section 1(1)(c) and section 1(2) of the Sexual Offences Act 2003:

• The prosecution must prove lack of consent and that the defendant did not reasonably believe in consent.
• Reasonableness is assessed “having regard to all the circumstances”, including “any steps” taken to ascertain consent.

(b) Avoiding “elision” of consent and belief

The court accepted the defence submission that the questions must not be elided: a complainant may not consent, yet a defendant may still (in theory) reasonably believe there was consent. But it stressed that evidence about the complainant’s situation and behaviour can bear powerfully on what the defendant reasonably believed, because those circumstances are part of “all the circumstances” known to him.

(c) “Steps to ascertain consent”: no legal duty, but potentially relevant absence

A notable aspect of the judgment is its careful clarification of section 1(2) and the Crown Court Compendium guidance. The court held:

• Section 1(2) does not create a legal duty to ask for consent.
• Consent may be inferred without any explicit inquiry, depending on context.
• Nevertheless, in some encounters—especially those featuring vulnerability, intimidation, or isolation—the fact that the defendant took no steps to ascertain consent may itself be a circumstance the jury can weigh when assessing reasonableness.

The court cautioned against reading the Compendium passage (“There is no obligation… but where steps have been taken, they must be taken into account…”) as excluding consideration of the absence of steps. This is not framed as a reversal of burden or as a requirement of a verbal “check”, but as a fact-sensitive evidential factor.

(d) Why the case properly went to the jury under Galbraith

The Court of Appeal identified a set of evidential features known to the appellant which, taken at their highest for the prosecution, could rationally support the conclusion that any belief in consent was not reasonable. These included:

• C’s youth (18), intoxication and upset, which she communicated.
• The isolated, late-night, unlit riverside setting; the appellant being a stranger.
• The appellant’s pursuit (C walking fast away for around 15 minutes) and sexualised remarks on catching up.
• References to violence (“smashed up” a kitchen) and mention of a gun, a backpack, and C’s uncertainty about weapons.
• C’s account of authoritative direction (“told her” to remove clothing), lack of arousal, and use of Vaseline.
• C’s verbal indication at the first bench that she was “not there for that,” and her telling him she wanted to go home before moving on.

The defence relied on countervailing points: lack of “no”, lack of resistance, apparent compliance, grabbing thighs during oral sex (said to be for stability), the CCTV suggesting closeness at Kew Green, and the appellant desisting when anal penetration seemed possible. The court accepted these as “good and strong points” but categorised them as classic jury points—matters of evaluation, context, and credibility not capable of triggering the exceptional threshold for stopping a case under the second limb of Galbraith.

(e) The “rare case” observation

Adapting R v H [2007] EWCA Crim 2056, the court stated it would be “a very rare case” to stop proceedings where a young woman, alone at night in a dark isolated place, is followed and has sex shortly after meeting a stranger, and she repeatedly says she did not consent and would never have done so in those circumstances. The court was careful not to create an absolute rule, but the guidance is clearly restrictive of second-limb Galbraith interventions in such fact patterns.

3.3 Impact

(a) Practical guidance on section 1(2): “steps” and the Compendium

The judgment is likely to be cited for the proposition that while there is no legal duty to ask for consent, the absence of any steps to ascertain consent may be relevant where circumstances call for caution—particularly in encounters involving intoxication, vulnerability, isolation, intimidation, or power imbalance. This is a nuanced clarification: it resists both extremes (a mandatory “verbal consent” rule on the one hand, and an exclusion of the “no steps taken” point on the other).

(b) Reinforcement of jury primacy in consent/belief cases

The decision strengthens the trend of appellate restraint in second-limb Galbraith arguments in rape trials: where there is an evidential platform for non-consent plus contextual features potentially undermining reasonable belief, the case should ordinarily be left to the jury—even if the defendant can point to apparently “consensual” outward behaviour.

(c) Case-building and trial strategy

• For prosecutors: the case illustrates how “circumstantial reasonableness” factors (setting, vulnerability, intimidation, what was said, what was not asked) can be marshalled to meet section 1(1)(c) even where overt resistance is absent.
• For defence: it underlines the difficulty of converting “acquiescence-looking” conduct into a successful Galbraith challenge; such matters will more often go to credibility, alternative interpretation, and closing submissions than to legal sufficiency.
• For trial judges: it supports a cautious approach to withdrawing rape counts where the dispute is essentially evaluative and fact-sensitive.

4. Complex Concepts Simplified

• Consent vs reasonable belief in consent: Consent asks what the complainant actually agreed to. Reasonable belief asks what the defendant believed, and whether that belief was reasonable given all circumstances.
• Section 1(2) (“steps to ascertain consent”): The law does not require a defendant to ask “Do you consent?” in every case. But if a defendant did take steps, the jury must consider them; and in some contexts, taking no steps may count against the reasonableness of any claimed belief.
• No case to answer (second limb of Galbraith): Even if there is some evidence, a judge can stop the case only if the evidence is so weak that a conviction would be unsafe. This is exceptional; most disputes about interpretation of behaviour and credibility are for the jury.
• ABE interview: “Achieving Best Evidence” is a recorded interview often used as the complainant’s evidence-in-chief.
• Reporting restrictions (Sexual Offences (Amendment) Act 1992): Victims of alleged sexual offences are generally entitled to lifelong anonymity in publications unless waived or lifted by a court.
• Hospital order / restriction order (Mental Health Act 1983, ss 37/41): A disposal focusing on treatment and public protection; it does not affect the appellate test for conviction safety, which remains whether the conviction is unsafe.

5. Conclusion

Malik confirms that, in rape trials, the question whether a defendant’s belief in consent was reasonable will usually be a matter for the jury where the prosecution can point to contextual features capable of undermining that belief, even if the complainant appeared compliant and did not explicitly say “no”.

The judgment’s most significant contribution is its clarification of section 1(2) of the Sexual Offences Act 2003 and the Crown Court Compendium: there is no universal duty to ask for consent, but the absence of steps to ascertain consent may be relevant on particular facts. In tandem, the court’s adaptation of R v H [2007] EWCA Crim 2056 signals that second-limb Galbraith rulings will remain rare in fact patterns involving late-night isolation, vulnerability, and an account of fear-driven submission.