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CONSENT • REASONABLE BELIEF • DIGITAL EVIDENCE • DISCLOSURE

Sexual Assault Investigations & Defence

Discreet defence for sexual assault allegations from first police contact through interview, pre-charge investigation and court proceedings. These cases can turn on consent, reasonable belief, communications, chronology and the surrounding evidence rather than a single piece of proof.

KEY ANSWER

The position in brief

Section 3 of the Sexual Offences Act 2003 concerns intentional sexual touching where the other person does not consent and the defendant does not reasonably believe that person consents. Consent under section 74 means agreement by choice where the person has the freedom and capacity to make that choice.

The defence should identify the precise allegation and chronology, what each person is said to have communicated, and what contemporaneous evidence exists before drawing conclusions from later accounts alone.

Legal issues

Consent and reasonable belief are separate but related issues. Where reasonable belief is in issue, all the circumstances are relevant, including any steps taken to ascertain consent. Alcohol or drug use does not answer the legal question by itself; freedom, capacity and the evidence of the particular circumstances require fact-specific analysis.

Other sexual offences have different statutory ingredients, so the suspected offence should be identified precisely. The defence should also distinguish evidential issues from myths or stereotypes about how a complainant or suspect is expected to behave.

Evidence that matters

Relevant material can include first accounts, complete messages, social-media records, photographs, CCTV, venue records, location and travel data, call history, witnesses, medical or forensic evidence and other device material.

The CPS Disclosure Manual on digital material was updated in June 2026. Digital enquiries should be linked to a real issue in the case and handled proportionately; the defence should identify specific material capable of assisting the defence or undermining the prosecution rather than requesting indiscriminate access.

Reasonable lines of enquiry

Reasonable enquiries may include preserving CCTV before overwrite, obtaining complete communications, checking location or booking records, identifying witnesses to events before or after the alleged incident, and pursuing defined digital or third-party material relevant to consent, identity, chronology or another live issue.

In rape and serious sexual offence cases, current CPS guidance places particular emphasis on a recorded and reviewable disclosure strategy. Defence requests should explain the evidential issue and why the proposed enquiry is reasonable and proportionate.

What happens next

Advice should be obtained before a voluntary or arrested interview. A voluntary interview is still an interview under caution and the answers can be used as evidence. The appropriate interview strategy depends on the disclosure, the client’s account and what evidence is likely to exist.

After interview, police may continue with digital, witness, forensic or third-party enquiries while the suspect is on bail or released under investigation. Where there is focused material capable of affecting the evidential or public-interest assessment, pre-charge representations may be appropriate.

If charged, preparation may involve disclosure review, counsel, applications, expert evidence and detailed analysis of witness and digital material through to Crown Court trial.

Immediate steps

Preserve relevant messages, photographs, location history, booking information and other original digital material. Identify CCTV and witnesses early. Write a factual chronology while memory is fresh, separating what is clearly remembered from what is uncertain.

Do not contact the complainant contrary to bail conditions or seek to obtain evidence in a way that risks creating a new allegation. Preserve material rather than editing or curating it.

What should you send us?

Send the police allegation or correspondence; interview date and outcome; bail/RUI documents; next known date; a short chronology; relevant complete communications; CCTV, location or venue information; potential witness details; and any regulatory, employment or professional correspondence arising from the investigation.

Legal information from Theodorous. The law and procedure can change and the application of the law depends on the facts. This guide is general information, not advice on your individual case.

HOW WE CAN HELP

What Theodorous can do

We can advise before and during interview, analyse the statutory and evidential issues, preserve and review relevant digital material, identify reasonable lines of enquiry, advise on bail and pre-charge strategy, prepare representations where justified and conduct later court preparation with appropriate counsel where required.

For professionals and business owners, we can also identify employment, regulatory and reputational issues that need to be coordinated carefully with the criminal defence.

Primary legal sources

Sexual Offences Act 2003, section 3 — sexual assault.

Sexual Offences Act 2003, section 74 — statutory definition of consent.

CPS Rape and Sexual Offences Prosecution Guidance — current RASSO prosecution guidance, updated June 2026.

CPS Disclosure Manual: Chapter 30 — Digital Material — current digital disclosure guidance, updated June 2026.

Criminal Procedure and Investigations Act 1996 — statutory disclosure framework.

NEXT STEP

Discuss a sexual assault investigation confidentially

Send the allegation, interview and bail/RUI position, next date and the key chronology or digital-evidence issues for an initial assessment.

Discuss a sexual assault investigation confidentially

FREQUENTLY ASKED QUESTIONS

Questions about this issue

Should I have a solicitor before a voluntary interview for sexual assault?

Yes. A voluntary interview is conducted under caution and can be used as evidence. Advice should be obtained before deciding whether to answer questions, provide a prepared statement or adopt another lawful interview strategy.

Can a sexual assault case end without charge?

Yes. An investigation can end without charge. Where there is focused evidence or a legal issue capable of affecting the charging assessment, reasonable enquiries or pre-charge representations may be appropriate. No solicitor can guarantee the outcome.

Does intoxication automatically mean there was no consent?

No. The legal question is whether the person agreed by choice and had the freedom and capacity to make that choice. The effect of alcohol or drugs is assessed on the facts and evidence of the particular case.