Jacobs, R. v

Factual and Procedural Background

This case concerns an applicant convicted of rape by the Central Criminal Court in September 2022 and sentenced to four years' imprisonment. The applicant and the victim, referred to as L, began dating in August 2017 and had consensual vaginal sex initially. The offence in question involved non-consensual anal penetration alleged to have occurred during a subsequent encounter in September 2017. The applicant's primary defence was that L consented to the act or alternatively that he reasonably believed she had consented. The applicant was diagnosed with autism spectrum disorder (ASD) after the initial trial date was set, which led to a delay and attempts to obtain psychiatric evidence relating to whether his autism affected his belief in consent. The first trial in August 2022 ended with a hung jury, and a second trial in September 2022 resulted in conviction.

The applicant applied for leave to appeal against conviction, renewing the application after refusal by a single judge. The appeal and associated application for leave to rely on fresh psychiatric evidence were adjourned to be heard together before the court.

Legal Issues Presented

1. Whether the applicant's conviction is unsafe due to the jury not being properly directed on the relevance of his autism to his reasonable belief in consent.
2. Whether fresh psychiatric evidence relating to the applicant's autism and its impact on his belief in consent should be admitted on appeal.
3. The admissibility and reliability of expert psychiatric evidence concerning autism in the context of assessing reasonable belief in consent under the Sexual Offences Act 2003.

Arguments of the Parties

Appellant's Arguments

• The jury was not provided with sufficient information about the applicant's autism and its relevance to his belief that L consented to anal intercourse.
• The trial judge failed to direct the jury that autism was a relevant characteristic when assessing the reasonableness of the applicant's belief in consent.
• The agreed facts presented to the jury were misleading as they were prepared by lawyers without expert review and omitted relevant psychiatric opinions, particularly from the prosecution expert.
• Fresh psychiatric evidence demonstrates that autism may have affected the applicant's ability to interpret non-verbal cues and thus is relevant to the reasonableness of his belief in consent.
• Excluding autism from consideration in assessing reasonable belief results in unfair discrimination against individuals whose rational behaviour is influenced by autism.
• The additional expert evidence meets statutory criteria for admission and shows the inadequacy of the agreed facts placed before the jury.

Respondent's Arguments

The opinion does not contain a detailed account of the respondent's legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by outlining the statutory framework under the Sexual Offences Act 2003, which requires that reasonable belief in consent be assessed objectively with regard to all circumstances, including the defendant's steps to ascertain consent. It noted the key precedent in R v B (MA), which held that mental disorders causing delusional beliefs cannot render a belief reasonable, but that characteristics such as impaired ability to read social cues could be relevant depending on facts.

The court examined the psychiatric evidence presented before and after trial. The initial expert reports concluded that the applicant's autism did not significantly affect his understanding of consent or his reasonable belief in consent. The prosecution expert's report contained a tentative suggestion that autism might have some bearing on perception of non-verbal cues, but this was theoretical, inconsistent with other parts of the report, and not clearly linked to the facts of the incident.

The court found that the agreed facts presented to the jury were not misleading and accurately reflected the expert opinions available at trial. It accepted the tactical decision by the defence to rely on these agreed facts and not call experts to give evidence on the reasonableness of belief in consent. The court rejected the contention that the applicant's autism was relevant to reasonable belief in this case on the evidence before the jury.

Regarding the fresh evidence, the court found that the additional expert reports failed to clearly explain the change in opinion or to connect the theoretical possibility of autism affecting reasonable belief to the specific facts of the case. The evidence was considered unreliable and would likely confuse the jury. There was no reasonable explanation for the failure to adduce this evidence at trial, especially given the applicant's intelligence and active role in his defence.

Accordingly, the court concluded that there was no need for a jury direction on autism in relation to reasonable belief in consent, and that the fresh evidence did not satisfy the statutory test for admission on appeal.

Holding and Implications

The court refused the application for leave to appeal against conviction and the associated application for leave to rely upon additional evidence.

The direct effect is that the applicant's conviction stands, and the appeal is dismissed. The court emphasized that no new precedent was established, reaffirming the existing legal principles on reasonable belief in consent and the admissibility of expert evidence. The decision underscores the importance of expert evidence being clearly relevant and reliable, and the necessity for tactical decisions to be made with full understanding by the defendant and counsel. It also highlights that autism may be relevant to reasonable belief in consent in principle, but only if supported by specific, well-explained evidence tied to the facts of the case.