No misdirection in rape conviction, Appeal Court rules
A man who had a sexual relationship with a teenage girl while she was under age, and later married her, has had an appeal against conviction for raping her refused.
Lord Justice Clerk Lady Dorrian, Lord Menzies and Lord Turnbull held that there had been no misdirection in the case of RKS, either in relation to a docket setting out that the accused had engaged with sexual activity with the complainer, MKS, in England before she was 16 years old, or in failing to direct the jury that absence of reasonable belief in consent required corroboration.
On MKS's evidence she met RKS around 2011 when both lived in Weston-Super-Mare. They began a sexual relationship while she was still 14; two years later when RKS moved to Glasgow she joined him on leaving school on her 16th birthday. They married in 2015 and lived together until 2017.
RKS was charged with (1) assaulting MKS on various occasions in Glasgow between 2013 and 2017, which was withdrawn by the Crown during the trial; and (2) a charge of rape in February 2017 by seizing MKS, removing her clothing, compressing her neck, instructing her to perform oral sex and raping her. A docket narrated various occasions of sexual intercourse in England before MKS was 16. On the date of the alleged rape MKS had already arranged that members of her family would drive to Glasgow to collect her and her child by RKS; during the journey south they noted bruises on her neck but MKS only said at that stage that she had been strangled. When RKS started harassing her afterwards by text and phone, she contacted the police and then disclosed the rape. RKS gave a different account, concluding with consensual sex.
On appeal against conviction on charge 2, RKS argued (1) that the judge erred in directing the jury that they could take what was in the docket as part of the overall picture in considering that charge: it could not be said that intercourse at that time was "specifiable by way of reference to" the rape, nor was it part of the same series of events, in terms of s 288BA(2) of the Criminal Procedure (Scotland) Act 1995; (2) that the issue of reasonable belief was a live one in every case, and the trial judge’s direction to the effect that absence of reasonable belief did not require corroboration was wrong in law: earlier cases to that effect had been wrongly decided and should be reconsidered.
Delivering the opinion of the court, Lord Turnbull said the Act required the acts specified in the docket to be specifiable by reference to a sexual offence, not to the particular offence charged. By s 288BA(5) evidence of the acts was presumed to be relevant, and no objection had been taken at trial. While charge 2 was the only charge still live when the jury were directed, it was the only sexual offence on the indictment. There was no reason for the judge to direct the jury to ignore evidence led without objection and which had admittedly been relevant at the time.
On the question of reasonable belief, the jury must have rejected RKS's account. The Crown evidence was plainly adequate to establish the charge, and "In these circumstances there was simply no room for a separate and hypothetical consideration of whether, despite the fact that the complainer did not consent, for some reason, about which there was no evidence, the appellant nevertheless may have thought that she was consenting... The appellant’s contention would require a direction of the sort contended for to be given in a case where the accused denied that intercourse took place and led a defence of alibi."