BQL & Anor, R. v

Factual and Procedural Background

This opinion concerns a prosecution appeal under section 58 of the Criminal Justice Act 2003 against a judge's ruling that two accused had no case to answer on multiple charges related to alleged sexual offences. Reporting restrictions were imposed to protect the identity of the victim, referred to as "C".

C attended a Christmas event, became intoxicated, and later met one accused, referred to as BQL. She accompanied BQL to a house he shared with another accused, AKO. Evidence included DNA and blood traces linking both accused to C, who had a high blood alcohol level at the relevant time. C reported no recollection of the events until waking in a room with two unknown men, wearing little or no clothing. CCTV footage showed C and BQL interacting in the street, with signs of intoxication and physical support.

A housemate recorded audio from the bedroom shared by the accused, capturing C apparently directing sexual activity. Both accused denied the offences, with prepared statements and no interview comments. The accused were charged with kidnapping, rape, assault by penetration, and sexual assault. After prosecution evidence, the defence submitted there was no case to answer, which the judge accepted, prompting the prosecution appeal.

Legal Issues Presented

1. Whether the judge erred in ruling that the two accused had no case to answer on the charges of kidnapping, rape, assault by penetration, and sexual assault.
2. Whether the evidence was sufficient for a reasonable jury to find that the victim lacked the capacity to consent due to intoxication.
3. The correct application of the legal test for "no case to answer" submissions as set out in R v Galbraith.
4. The impact of intoxication on the victim's capacity to consent under section 74 of the Criminal Justice Act 2003.

Arguments of the Parties

Prosecution's Arguments

• The judge made an error by failing to properly consider whether the victim lacked capacity to consent due to intoxication.
• Consent requires capacity; a person so intoxicated they cannot choose does not consent, even if appearing willing.
• The judge gave excessive weight to evidence undermining the prosecution case and insufficient weight to evidence indicating incapacity.
• A reasonable jury could find the victim lacked capacity to consent both to accompany BQL and to engage in sexual activity.
• The judge misdirected himself regarding the significance of lies told by the accused on arrest.

Defence's Arguments

• The judge correctly directed himself in law and conducted a careful, unimpeachable analysis of the evidence.
• The judge's conclusions were properly open to him and within the range of reasonable decisions.
• Cited authorities emphasize appellate courts should only interfere if the trial judge’s ruling is outside the range of reasonable conclusions.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Galbraith [1981] 1 WLR 1039	Test for "no case to answer" submission: whether, taking prosecution evidence at its highest, a jury could properly convict.	The court applied this test to assess whether the judge erred in stopping the case, concluding the judge failed to consider all relevant evidence regarding capacity to consent.
R v Bree [2007] EWCA Crim 804	Clarification on consent and capacity under intoxication; a person lacking capacity due to intoxication cannot consent.	The court relied on this authority to emphasize that capacity to consent may evaporate before unconsciousness and that voluntary intoxication affects consent.
R v H (Hysa) [2007] EWCA Crim 2056	Capacity to consent is generally a question for the jury to resolve.	The court affirmed that questions of capacity should be decided by the jury, supporting the prosecution’s argument that the judge erred in taking the case from the jury.
R v Kamki [2013] EWCA Crim 2335	This precedent was referenced in relation to evidential standards and jury considerations.	The court considered this case as part of the legal framework for assessing evidential sufficiency but did not elaborate further in the ruling.
R v M and T [2009] EWCA Crim 2848	Appellate court interference with trial judge’s findings only if outside reasonable conclusions.	The court cited this to underscore the threshold for overturning a judge’s ruling on no case to answer submissions.

Court's Reasoning and Analysis

The court began by reviewing the judge’s application of the Galbraith test for "no case to answer" rulings, focusing on whether the prosecution evidence, taken at its highest, could allow a reasonable jury to convict. The judge had found the prosecution case weak and inconsistent, particularly regarding consent and capacity.

However, the appellate court identified a key error: the judge treated independent evidence of the victim's words and actions solely as undermining the prosecution case, without considering that the same evidence could demonstrate the victim's incapacity to consent due to intoxication. The court emphasized that intoxication sufficient to negate capacity removes consent as a matter of law, citing R v Bree.

The court analyzed the CCTV footage and audio recording, noting signs of extreme intoxication, physical support needed by the victim, reluctance to enter the house, and the victim being "frogmarched" back after trying to leave. These facts could support a jury finding that the victim lacked capacity to consent.

The court also highlighted that the victim’s lack of memory over several hours could indicate incapacity, a matter for jury credibility assessment. Scientific evidence supported the involvement of both accused in sexual activity with the victim, allowing inferences of encouragement or assistance.

Given these considerations, the court concluded that the judge’s ruling that there was no case to answer was not reasonably open to him, as he failed to consider the capacity issue properly. The appellate court thus reversed the ruling and ordered the trial to restart before a different judge at a different Crown Court center.

Holding and Implications

The court REVERSED the judge’s rulings that the accused had no case to answer and ordered that the proceedings be resumed in the Crown Court.

This decision means that the trial will restart, with a new judge and venue to be allocated promptly. The ruling clarifies that evidence indicating intoxication and possible incapacity to consent must be fully considered by a jury rather than resolved by a judge at the no case stage.

No new legal precedent was established beyond the reaffirmation of existing principles regarding capacity to consent and the application of the Galbraith test. Reporting restrictions remain in place until after the retrial concludes.