The vexed question of consent

Defence statements: solemn

One case remains unpublished as the matter is sub judice and the subject of a Contempt of Court Act order, but the points made by the Appeal Court are important ones. Sheriffs, fiscals and agents should be aware of the salient procedural points now and do not require to know the facts of the case.

The main bone of contention was that at no stage was a defence statement ever lodged, contrary to the terms of s 70A of the Criminal Procedure (Scotland) Act 1995. This omission caused the court and parties to lose sight of the proceedings when disclosure issues arose and the defence received further information from their client which ought to have resulted in an amended statement being lodged. Many defence statements are anodyne and formulaic, but if additional information is sought from the Crown there needs to be a basis for such a request. The decision for the agent is similar to requesting an identification parade be held: the resultant procedures may potentially be to the detriment of the accused.

At one point in the procedure a trial diet was fixed as well as an adjourned first diet. This is not competent: either parties are ready or will be ready for trial on the date fixed or they are not. In special circumstances a trial diet could be indicated on the minutes when fixing a new first diet, but a trial diet cannot be fixed as such.

Conversely, when a trial diet is discharged before the diet, it is open to the court to fix a new trial diet and also a hearing in the nature of a first diet fixed under s 75A(9)(b). Once a trial diet has been fixed it is only possible to fix a new trial diet, albeit that it may not be expected to proceed, for example if the accused has long-term problematic health issues.

All investigation should take place before and not during the trial, and parties are expected to be in a state of readiness when a trial diet is fixed.

Any further disclosure sought from the Crown ought to be based on the defence statement, so that the Crown’s duties remain engaged under s 124 of the Criminal Justice and Licensing (Scotland) Act 2010.

Any joint minutes should be prepared in advance of the trial diet, so that trial can commence timeously on the morning and not in the afternoon causing delay and inconvenience to potential jurors and witnesses.

Where productions have been lodged with the court, they remain under the control of the court and application to examine them should be made to the court. This is not a disclosure issue: see HM Advocate v AM [2016] SCCR 227. 

Extension of time

By contrast there seems no reason why the decision in Murphy v HM Advocate, High Court, 30 November 2018 (HCA/2018/529/XC) has not been published, as proceedings are now at an end. The appellant had received a six year sentence in 2016 and subsequently appeared on petition in October 2017 on a variety of similar historical sexual offences. He was fully committed the week after his first appearance but the Crown mistakenly diarised the case from the later date. On two separate occasions during case preparation a legally qualified member of staff noticed the error and instructed that the system be amended, but this was not done. The High Court concluded that no satisfactory explanation was laid before the sheriff and accordingly the first part of the test in Swift 1984 JC 83 had not been met, the appellant had not been timeously indicted and 13 charges which had featured on the petition fell.

Absence of reasonable belief as to consent

Even before the common law of rape was superseded by s 1 of the Sexual Offences (Scotland) Act 2009, difficulties arose in proof and jury directions when the defence was that the accused considered the sexual act occurred with the complainer’s consent (Stobo v HM Advocate 1993 SCCR 1105, overturned by a full bench in Smith v Lees 1997 SCCR 139).

Back in the day, rape was defined as having (vaginal) sexual intercourse with a woman by overcoming her will by force, although the force could involve the use of threats rather than physical violence. That definition, from HM Advocate v Sweenie (1858) 3 Irv 109, was supplanted by the High Court following Lord Advocate’s Reference (No 1 of 2001) 2002 SCCR 435. Sweenie was overruled and it was deemed that rape was constituted by the man having intercourse without the woman’s consent; thus force was no longer a requirement, and clandestine injury – rape of a sleeping woman – was no longer to be recognised as a crime distinct from rape.

In Graham v HM Advocate 2017 SCCR 497 Lord Justice General Carloway said, at para 21, that following the redefinition of rape by the court in 2002, “the notion that there required to be corroboration of the accused’s state of knowledge appears to have arisen from an oblique obiter dictum at para 38 of Lord Advocate’s Reference”.

Paragraph 38, with respect, seems more considered than that. Lord Justice General Cullen said: “The sufficiency of evidence that the accused knew that the complainer was not consenting to intercourse, or at any rate was reckless as to her consenting – including corroboration of that evidence – plainly would need careful consideration. However, it does not appear to me that this provides a satisfactory ground for rejecting a correction in the statement of the law of rape. Whether that came about by way of judicial decision or by way of statutory intervention, the issue is the same. I should, however, comment on one submission made by the Lord Advocate at an advanced stage of his argument before this court. He appeared to submit that the mens rea of the accused could be inferred from the fact that intercourse had taken place without the consent of the complainer. This submission does not appear to me to be well founded. It may well be the case that the evidence given by a complainer, when taken along with that of independent witnesses, is sufficient to prove both the actus reus and the mens rea without the need for any additional evidence as to the latter. However, if a complainer’s evidence added up to no more than that she had not consented to the sexual intercourse, without saying or doing anything to indicate to the accused that this was her attitude, she could hardly be regarded as giving evidence of the accused’s mens rea.”

Post-2001 cases

The High Court dealt with the fallout from these words in Cinci v HM Advocate 2004 SCCR 267 and McKearney v HM Advocate 2004 SCCR 251. In McKearney’s case the appellant, who was separated from the complainer, had broken into her house and assaulted her, then desisted. Some hours later, after sleeping on top of the bed with her, he began to handle her then had intercourse with her. She did not resist as she was scared. Later that day she arrived at work in a distressed state and reported to the police she had been raped.

The High Court quashed the conviction as the jury might have taken the view that the sexual activity prior to intercourse was a separate chapter from the earlier incident involving assault and menacing behaviour. The court made clear that where there was no evidence of the use of force or threat at the time of or immediately preceding the sexual penetration, and the evidence provided some proper basis on which the jury might hold that the man believed the woman was consenting, specific directions on mens rea, including that the onus remained on the Crown and as to the need for full legal proof of mens rea, were required.

Cinci’s case arose in a hostel where the manageress heard sounds from a locked shower and asked if everything was OK. A female answered “No – help me”, and when the door was opened the complainer and appellant were found naked inside. The complainer was lying distressed on the floor and said “He raped me”. At trial the complainer had no memory of the incident; the appellant did not give evidence. It was held the complainer’s statement was de recenti rather than part of the res gestae. There was no evidence that the complainer refused to consent to intercourse and the conviction was quashed. The complainer had been extremely drunk and vomited in bed. She was helped to a shower by a tour guide, who had to rebuff the appellant’s amorous advances towards the complainer.

In the subsequent case of Chakal v Brown 2004 SCCR 541, a charge of indecent assault, there was evidence that his earlier sexual advances towards the complainer having been rebuffed, the appellant managed to get the complainer, who he barely knew, into her room and be alone with her. After assaulting her he left the flat, leaving his property behind; shortly afterwards the complainer exhibited distress towards her friends. This was held to be sufficient evidence. These surrounding circumstances, if shown to be relevant to the offence, can be used to provide corroboration of mens rea.

The change in law following Lord Advocate’s Reference was considered in Spendiff v HM Advocate [2005] HCJAC 68. The appellant had been convicted of a charge of clandestine injury and rape. Paragraph 19 lists the factors which led to his appeal being refused. The complainer had been residing at the appellant’s house with his stepdaughter. She had returned home alone and had got to a state of substantial undress. The appellant returned to the house at a time when the complainer would normally be asleep. There was no evidence of any prior sexual relationship between the parties; there was a significant age difference (she was 18; he was 43). The appellant’s evidence that the complainer moaned when he tickled her foot was at best neutral. The complainer left the house after the incident in a state of considerable distress, barefoot and in her bedclothes. The appellant followed her, then went to another address before returning home; when interviewed he came close to admitting the complainer had told him to stop. See also Wilson v HM Advocate [2017] HCJAC 3 for a similar structural analysis of the relevant factors.

The 2009 Act and since

Section 1 of the 2009 Act redefined the law of rape and gave a new wording to the defence of consent. Read short, the new offence involves penile penetration of a person of either sex without that person’s consent and without the other person having any reasonable belief of consent. Consent means free agreement provided the person is not incapable due to drink or drugs. A person has not consented if violence is used, or threats of violence, or they are being unlawfully detained. Consent cannot be given when the person is incapable, while asleep or unconscious. Consent to some sexual conduct does not imply consent to other conduct, and consent may be withdrawn.

In determining reasonable belief, regard is to be had to whether the man took any steps to ascertain whether there was consent. As the High Court said in Winton v HM Advocate [2016] HCJAC 19, the new offence does not provide a defence of reasonable belief in consent; rather it provides “that an absence of reasonable belief in consent is an essential part of the offence to be proved by the Crown” (para 8); and (para 10) “the model of consent promoted by the Act is one requiring active, continuing and positive consent”.

Reasonable belief was considered by the High Court in Drummond v HM Advocate [2015] HCJAC 30. The appellant and complainer had been in a relationship. Two days prior to the rape the appellant seriously assaulted the complainer. She lost two teeth, her eyes were closed, she felt numb, was bruised all over and had a cut to her neck. She said she was too scared to leave the flat, but accepted that a few days later the relationship was effectively back to normal. That night they were in bed; the appellant asked to have sex and she told him no, as she had her period. The appellant then forced himself on her. He disputed she had said “no”.

The complainer managed to escape from the flat three days later and disclosed the circumstances to a friend when taken to hospital. She was described as highly emotional, obviously injured, withdrawn, tearful and shaken. Fragments of teeth were found in the bed and her blood was found on a penile swab taken from the appellant. The latter evidence provided important corroboration of the reason she had said no, and the appeal was refused. The appellant had not given evidence at trial, and there was no other source of evidence that the complainer had consented.

In Graham v HM Advocate [2017] HCJAC 71, the High Court indicated at para 23 that s 10 of the 2009 Act did not add a new requirement which would need to be proved by corroborated testimony, but simply changed that part of the mental element from an absence of an honest belief to an absence of a reasonable one. Where force was alleged and proved there was no need for a distinct direction on corroborating the accused’s lack of belief unless that was a live issue at trial.

Latest decision

Maqsood v HM Advocate [2018] HCJAC 74 (28 November 2018) is the most recent decision in this context. The court recognised that the redefinition of rape continued to pose problems for trial courts; the appropriate direction was that the evidence required to demonstrate the absence of a reasonable belief that the complainer was consenting.

Both parties at the appeal suggested that the following remarks by the court in Graham at para 24 did not clarify matters in regard to absence of reasonable belief: “The appellant either had forceful intercourse against the complainer’s will or she consented to intercourse of the type libelled. In such circumstances it is sufficient that a trial judge, whilst properly defining rape in terms of the statute and thus including a reference to an absence of belief, directs the jury that the complainer’s account of being forcibly raped is adequately corroborated by, in this case, either distress observed by another person after the incident or an admission made by the appellant and spoken to by another witness.”

In Maqsood the complainer and a friend, both 18, had had lunch and drinks until 11.30 pm and purchased cannabis. They were very drunk and intended to hire a taxi; the accused appeared in his car and both girls got in. The friend was dropped off near her home; the complainer was then seized by the hair, forced to perform a sex act, then raped in the rear of the vehicle. She said she had protested to no avail. She had an incomplete memory of events. She was dropped off at her home, where her boyfriend and mother saw she had on a jacket but no bra or top and had lost her shoes. She was in tears, could not speak, was very upset and drunk. She had bruises on her arms and legs and was wearing a tampon as she was menstruating. A high vaginal swab revealed traces of the appellant’s semen but she could not recall intercourse having taken place.

The appellant said he had been working as a delivery driver and stopped to buy milk. Two girls entered his car and asked to be dropped off “up the road”. The first girl got out but the complainer said she wanted to go to a party. They had stopped in a retail park and after chatting for half an hour she suggested giving him oral sex. Later in the journey she took off her top and then sat astride him and had intercourse. He had taken her home, gone to an all-night gym where he had washed, and put her clothes in a charity skip.

Refusing the appeal, the court said that whether an accused had a reasonable belief was an inference to be drawn from the proven facts, e.g. use of force or signs of obvious intoxication; only intentional penetration and lack of consent required corroboration. It reiterated that no direction was required on reasonable belief unless it was a live issue. In the present case intercourse was admitted and corroborated by the swab. Evidence that the complainer was incapable of consenting was given by the bar staff, her friend, boyfriend and his mother.

In cases where there is no evidence of assault or violence, evidence to support the complainer’s contention that consent had not been given will in most cases come from the surrounding circumstances, both before and after the alleged rape. It is up to police and prosecutors to find any such circumstances to support the complainer and equally for the defence to look for factors pointing towards reasonable belief.

Maqsood, Winton and Drummond are more obvious cases where there are some extreme extraneous factors for the jury to consider. The spectre of Stobo remains about distress corroborating the complainer’s account. Although Smith v Lees overruled Stobo, the Scottish Law Commission laid down a marker in its Discussion Paper 131, Rape and other Sexual Offences (2006) at para 7.33: “the common law on this topic continues to develop and it might be thought preferable to leave it to the courts to adapt the rules on distress evidence in the light of the facts and circumstances of particular cases”. Watch this space!