R v Odeyemi: Joinder of SRO-Breach and Rape, Intoxicated Consent Directions, and s.34 Inferences Without Identified Interview Questions

1. Introduction

Odeyemi, R. v ([2026] EWCA Crim 162, 30 January 2026) concerned renewed applications for leave to appeal against conviction and sentence following a jury trial at Maidstone Crown Court. The applicant was convicted of rape (count 1) and breach of a Sexual Risk Order (SRO) (count 2), and was also sentenced (concurrently) for an unrelated conspiracy to steal to which he had pleaded guilty.

The central factual dispute at trial was consent: the prosecution alleged the complainant (C) was so intoxicated she lacked capacity to consent, that the applicant knew this, and that he did not inform her of the SRO (whose terms required express informed consent). The defence asserted consensual intercourse and challenged reliability by reference to inconsistencies.

The renewed applications raised (i) severance/joinder (whether the SRO-breach count should have been tried separately due to prejudice), (ii) alleged misdirections on intoxication and reliability and on consent, (iii) the propriety of a section 34 Criminal Justice and Public Order Act 1994 adverse inference direction following a “no comment” interview, and (iv) sentence, including a finding of dangerousness and imposition of an extended sentence.

The Court also reiterated the statutory anonymity protection for complainants in sexual cases under the Sexual Offences (Amendment) Act 1992.

2. Summary of the Judgment

The Court of Appeal (Criminal Division), judgment delivered by Lady Justice Andrews, refused leave to appeal against both conviction and sentence. In summary:

  • No severance required: the rape and SRO-breach counts were properly joined, “inextricably intertwined,” and could fairly be tried together; any prejudice could be addressed by robust directions.
  • Directions on intoxication/consent upheld: the summing-up was balanced and the intoxicated-consent direction properly reflected authority, including that disinhibited consent remains consent.
  • s.34 direction upheld: there is no requirement that the jury be shown a list of specific interview questions; the key issue is whether, in the face of questioning, the defendant could reasonably have been expected to mention the facts later relied on.
  • Sentence upheld: the dangerousness finding and extended sentence were not wrong in principle or manifestly excessive; the SRO and its deliberate breach were properly treated as relevant to risk.

3. Analysis

3.1 Precedents Cited

Laycock [2003] Crim LR 803-804 and Lewis [2007] EWCA Crim 2912

These authorities were relied upon by the defence to argue that trying a count that reveals prejudicial information (here, the existence of an SRO) alongside the substantive allegation risks unfairness and should lead to severance. The Court endorsed the trial judge’s approach in distinguishing both cases: the decisive feature in Odeyemi was that the SRO-breach count was not a collateral “bad character” style allegation bolted on to the indictment, but arose from the same factual matrix and the same core issue (consent) as the rape count.

R v Bree [2007] 2 Cr App R 13

R v Bree [2007] 2 Cr App R 13 remains the leading authority on intoxication and consent: drunkenness may remove capacity at the extreme, but where capacity remains, consent is legally effective even if disinhibited. The Court held the trial judge’s direction—“In law consent given when disinhibited by drink, even if consent would not have been given when sober, is nevertheless consent”—was “entirely in keeping” with Bree. This underpinned the rejection of the complaint that the intoxication/consent directions were erroneous.

R v Harewood [2021] EWCA Crim 1936 and R v Green [2019] EWCA Crim 411

These cases shaped the Court’s approach to the challenge against the section 34 direction. The applicant relied on Harewood to argue that jurors need to know matters such as interview length and the nature of questioning, and that without a prosecutor’s list of key questions it was unsafe to invite an adverse inference.

The Court accepted the importance of context emphasised in Harewood but stressed (by reference to Harewood itself and R v Green [2019] EWCA Crim 411) the controlling proposition: there is no requirement that the “unmentioned fact” must have been the subject of a specific question. The statutory test is whether, in the face of questioning, it was a fact the defendant could reasonably have been expected to mention. That principle was applied robustly: in a rape investigation, it was open to the jury to conclude the applicant could reasonably have been expected to mention (i) that intercourse occurred, (ii) that it was consensual, and (iii) that he informed C of the SRO.

R v Clarke [2018] EWCA Crim 185

The applicant relied on youth as a central mitigation and as relevant to dangerousness. R v Clarke [2018] EWCA Crim 185 recognises that maturity continues to develop beyond 18 and may affect culpability and sentence structure. The Court accepted the relevance of that framework, but held the trial judge gave cogent reasons why the applicant’s conduct and personal profile did not demonstrate reduced culpability by reason of immaturity. Clarke thus operated here as a structured lens for analysis, not a presumption in favour of reduction.

3.2 Legal Reasoning

(a) Severance/joinder: prejudice versus forensic and public-interest coherence

The Court’s key move was to reframe count 2 (SRO breach) not as mere propensity material, but as part of the same transaction. Applying the discretionary framework under Criminal Procedure Rules, rule 3.29(4), the trial judge:

  • recognised a risk of prejudice from the jury learning of the SRO;
  • concluded it could be controlled by robust directions (including a warning against speculating why the SRO was imposed); and
  • treated the counts as inextricably intertwined, with consent central to both.

The Court agreed and added an important functional point: the SRO did not merely require “consent,” but express and informed consent (knowledge of the SRO and its terms). That meant count 2 had a “real purpose” and was not needless “overloading.” Further, if guilt on count 2 were proved, that evidence would be admissible on count 1 as bearing on the applicant’s claimed belief in consent and the reasonableness of that belief; severance would not necessarily keep the SRO out of the rape trial.

The Court also explicitly weighed trial economy and complainant protection: separate trials would create a “real risk” that C would have to give evidence twice. That public-interest factor reinforced the conclusion that the joint trial was fair and appropriate.

(b) Intoxication: reliability distinct from capacity, and the adequacy of summing-up

The Court drew a practical boundary between (i) intoxication as it affects memory/reliability and (ii) intoxication as it affects capacity to consent. It rejected the criticism that jurors required more detailed judicial explanation about alcohol’s general effects, observing that such matters are within ordinary experience and (importantly) were not the defence’s pursued trial theory (the applicant said he saw no signs C was too drunk to remember). On consent, the Bree-consistent direction preserved the legal structure: drunken consent may be real consent unless capacity is lost.

(c) s.34 adverse inference: “no requirement for a specific question” applied to the rape context

The Court accepted that prosecutors often identify the key questions for clarity, but treated that as practice rather than a legal prerequisite. It held that the judge’s direction properly focused the jury on the salient unmentioned facts and left to them the statutory evaluation: could the applicant reasonably have been expected to mention those matters when questioned?

The judgment is particularly notable for its realism about context: in an allegation of rape, a jury can sensibly infer that questioning would relate to whether intercourse occurred and whether it was consensual. The Court also endorsed the standard safeguard that a claimed reliance on legal advice is not automatically determinative: it is for the jury to decide whether that explanation was reasonable “in all the circumstances.”

(d) Dangerousness and the role of the SRO at sentence

On sentence, the Court upheld the finding that the applicant was a dangerous offender and the imposition of an extended sentence. The reasoning emphasised:

  • the pre-sentence report risk assessment (narcissism, predatory behaviour, high risk of contact sexual reoffending, lack of empathy/motivation);
  • the legal relevance of an existing SRO as evidence that a court had already found a protective order necessary to manage future risk; and
  • the particular weight of the applicant’s deliberate breach of that order in the course of the index offending.

The Court also endorsed the trial judge’s careful handling of the SRO’s background: although the order followed investigations that did not lead to charges, the judge said she did not rely on those allegations for dangerousness, but was entitled to treat the fact of the SRO and its breach as risk-relevant. The Court went further, indicating that reliance on the background allegations would not necessarily have been an error of principle—an observation likely to be cited in future argument about the permissible evidential basis for risk assessment.

3.3 Impact

Although framed as an application decision, the judgment consolidates several practically significant propositions:

  • Joinder where SRO/SHPO-type counts share the same nucleus of facts: where the protective-order breach and the substantive sexual offence are factually and legally intertwined (especially on consent), severance will be difficult to justify if robust directions can manage prejudice.
  • Order-breach evidence as bearing on belief in consent: the Court’s recognition that proof of breach may be admissible on the substantive count (as relevant to reasonable belief) strengthens the argument that separate trials may not meaningfully reduce prejudice.
  • Intoxication directions remain anchored to Bree: appellate tolerance for succinct directions is reinforced, provided the jury is correctly directed on capacity and the legal meaning of consent.
  • s.34 directions without “question lists”: the Court’s reliance on Harewood/Green underscores that absence of identified specific questions will not automatically undermine a section 34 direction, particularly where the omitted facts are obviously central to the allegation.
  • Sentencing/risk management: the existence and breach of an SRO can carry substantial weight in dangerousness and in justifying extended sentencing, even for a young adult and even where the order’s origins include uncharged allegations.

4. Complex Concepts Simplified

Sexual Risk Order (SRO)
A civil preventative order imposing restrictions to protect the public from sexual harm. Breach is a criminal offence. Here, it required the applicant to engage in sexual activity only with express consent given after the woman had been informed of the existence and terms of the SRO.
Severance
Separating counts so they are tried in different trials. Courts balance fairness (including prejudice) against coherence, efficiency, and the interests of justice (including avoiding multiple complainant attendances).
Capacity to consent vs. drunken consent
If intoxication removes a person’s ability to choose, they lack capacity and cannot consent. If they still can choose, then even “disinhibited” agreement can be legally valid consent (per R v Bree [2007] 2 Cr App R 13).
Section 34 adverse inference (CJPOA 1994)
If a suspect stays silent in interview but later relies on facts at trial, the jury may (if properly directed) draw an inference that the later account was fabricated or is less credible—if it was reasonable to expect the suspect to have mentioned those facts when questioned. There is no absolute rule that police must have asked a specific question about the particular fact.
Dangerous offender / extended sentence
A finding that the offender poses a significant risk of serious harm can justify an “extended sentence”: a custodial term plus an additional extension period of licence to protect the public.

5. Conclusion

Odeyemi, R. v affirms that where an SRO-breach count is factually and legally bound up with an alleged rape—particularly through the shared issue of consent—joint trial will ordinarily be justified, with judicial directions as the primary tool to manage prejudice. It also reiterates intoxication-consent orthodoxy under R v Bree [2007] 2 Cr App R 13 and clarifies, via R v Harewood [2021] EWCA Crim 1936 and R v Green [2019] EWCA Crim 411, that a section 34 direction does not depend upon the jury being shown specific interview questions.

On sentence, the decision underscores the significance of protective orders in risk assessment: the existence of an SRO, and deliberate breach of it in the index offence, can strongly support dangerousness and an extended sentence even for a young adult, provided the judge engages with maturity and the evidential basis for risk.