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Convictions quashed as Court of Appeal refuse to sanction “sea change in the meaning of consent” in sex cases

Friday 24 July 2020

David Emanuel QC of the Garden Court Criminal Defence Team represented the appellant in a ground-breaking decision. He was instructed by Shaun Draycott of Draycott Browne Solicitors.

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In a legal first, the Court of Appeal have ruled that a defendant’s lies as to fertility are not capable of negating a person’s ostensible consent to sex. David Emanuel QC challenged the trial judge’s decision to allow the issue to go to the jury and in a hugely important judgment given by the Lord Chief Justice, the Court of Appeal accepted his submissions and quashed the convictions.

In a ruling that has consequences for prosecuting decisions across the country, the Court had to consider whether the defendant’s lie about having had a vasectomy amounted to rape where a condom was no longer insisted upon because the lie was believed. The case involved a detailed review of the legal approach to the definition of consent stretching back to the 1800's. The Court held that to uphold the trial judge’s decision would be to endorse “a sea change in the meaning of consent” and that such a change could only take place after “public debate as a matter of social and public policy.”

This case has been covered by the BBC.

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