Scottish High Court of Justiciary Decisons

The cause called before the High Court of Justiciary, comprising the Lord Justice-General (Hope), Lord Allanbridge and Lord Cowie for a hearing.

At advising, on 19th January 1994, the opinion of the court was delivered by the Lord Justice-General (Hope).

OPINION OF THE COURT—The appellant was found guilty in the High Court at Stonehaven on five out of a total of seven charges brought against him in the indictment, of which two only are relevant to this appeal. These were charge (1), which was a charge of rape, and charge (5), which was one of attempted murder and robbery. These two charges were not related to each other in any way, as the two incidents took place on different dates and in entirely different circumstances. The grounds of appeal which allege misdirections by the trial judge are also different in respect of each charge, and we shall consider them separately.

The first charge was that the appellant raped a 17-year-old schoolgirl in the grounds of a primary school in New Pitsligo. They had met each other at a dance in the village hall that evening. When she went to the toilets the appellant spoke to her and asked her if she wanted to go for a walk with him. She agreed to this, and they left the hall and walked to the school which the appellant had attended when he was a boy. He was familiar with the layout, which she was not as she had not attended this school. They went to a shelter at the back of the school where, after a time, the appellant had sexual intercourse with the complainer. According to her account she had not consented to intercourse. She said that he pushed her up against a wall in the shelter, made her sit down and then put his hands down her tights. She told him that she did not want "that" and tried to push him away. But she was unable to do so, and after struggling with her the appellant achieved intercourse. At this stage she screamed and bit the appellant. The appellant in his evidence agreed that the complainer had offered some resistance to his advances. But he said that he thought at the time that she wanted to have sexual intercourse with him. His defence was that she consented to intercourse, and that in any event he believed that he had her consent.

The appellant's grounds of appeal in relation to this charge allege various misdirections by the trial judge. But counsel for the appellant addressed his

argument to one point only, which was that the trial judge failed to give adequate and proper directions with regard to the appellant's defence that he believed that the complainer consented to intercourse. It is said that he failed to direct the jury that a person could not be convicted of rape if he believed honestly, albeit mistakenly, that the woman was a consenting party, even if he had no reasonable grounds for that belief, and that such a direction would have been appropriate in the present case in view of the nature of the evidence.

The passage in the charge which is said to contain a misdirection on this point appears at [p. 88H, supra] where the trial judge directed the jury in these terms: [their Lordships quoted the direction as set out supra and continued:]

The trial judge tells us in his report that he was of the view that this was an adequate and appropriate direction, and he also tells us that it was based on a series of authorities on the effect of a mistake of fact culminating in Sweeney v. X 1982 SCCR 509 at p. 515 where Lord Ross said:

"Ladies and gentlemen, if a man is charged with rape and has intercourse without the victim's consent, but he genuinely believes that he has her consent, then he would not be guilty of rape. But, of course, he must have reasonable ground for thinking, for honestly believing, that she consented. I mean it wouldn't do if anyone who was charged with an offence of this kind could say, ‘Oh well, it doesn't matter that she didn't in fact consent, I thought she consented’, he has got to have reasonable grounds for believing that she was willing."

He appreciated that this ground of appeal was based upon what was said in Meek v. H.M. Advocate 1983 S.L.T. 280 at p. 281, where the court said that it had no difficulty in accepting that an essential element in the crime of rape was the absence of an honest belief that the woman was consenting, and indicated that it was in accordance with the law of Scotland that an accused could not be convicted of rape if he honestly believed that the woman was consenting, even if his belief was not based on reasonable grounds. But he observes in his report that these comments were obiter, as the court decided that in the circumstances of that case there was no need for the direction to be given in view of the other evidence in the case. He also says that the direction in Meek was not supported by any previous Scottish authority on mistake, and expresses the opinion that this ground of appeal is based upon an erroneous view of the law.

Counsel for the appellant accepted that in his speech to the jury the appellant's counsel proceeded upon the same view of the law as the trial judge did in his charge. He told us that the trial judge had noted counsel correctly as saying that, before they could convict, the jury had to be satisfied that, even if the complainer did not consent to intercourse, the appellant did not reasonably believe her to be doing so. But he submitted that it was the duty of the trial judge to direct the jury as to the law on this matter, and that the presence or absence of reasonable grounds was not the test. The question was whether the appellant honestly believed that the complainer was consenting. He was entitled to a direction that that was the test in this case, as the law was that an accused who honestly, although mistakenly, believed that the woman was consenting could not be convicted of rape even if there were no reasonable grounds for his belief.

The Solicitor General informed us that he was not seeking to challenge the observations in Meek as unsound in law. He submitted that the law was correctly stated by Lord Justice-General Emslie in that case, and he told us that the Crown had not sought to argue in any of the many cases where directions to the same

effect had been given subsequently, that these directions were unsound. He referred also to H.M. Advocate v. Stevenson and Others, unreported, 5th July 1985, where the trial judge directed the jury on the same lines as in Sweeney,that it was a defence if the accused believed that the complainer was consenting to intercourse "and there were reasonable grounds for him believing that fact". The Crown accepted that this was a misdirection in the particular circumstances of that case, and the conviction of rape was quashed by the appeal court. Commenting on the directions which had been given by the trial judge in this case, the Solicitor General submitted that they were correct as far as they went and that they were in line with the defence which had been offered that there were reasonable grounds for the appellant's belief. But he said that they did not go far enough because the law was that it was the belief that mattered, not the grounds for it. It was the duty of the trial judge to direct the jury what the law was on this point, and he agreed with counsel for the appellant that there was a misdirection in this case. He also accepted that, in the light of the evidence on this charge (in the case), there was a miscarriage of justice. Although the defence had not put the issue correctly, the jury were deprived of the opportunity to consider whether the appellant's belief was genuine even if he had no reasonable grounds for it.

Although it is agreed that there was a misdirection on this point we think that it is appropriate, for the avoidance of doubt and in view of the careful attention which has been given to it by the trial judge, that we should state what we consider to be the law on this matter. The crime of rape consists in the carnal knowledge of a woman forcibly and against her will. Thus the mens rea of this crime includes the intention to have intercourse with the woman without her consent. The absence of a belief that she was consenting is an essential element in it. If a man has intercourse with a woman in the belief that she is consenting to this he cannot be guilty of rape. Now, the question whether the man believed that the woman consented is a question of fact. It is a question which the jury must decide, if it is raised, on the evidence. The grounds for his belief will be important, and if he has reasonable grounds for it the jury may find it easier to accept that he did honestly believe that the woman consented. But it will be open to the jury to accept his evidence on this point even if he cannot give grounds for it which they consider to be reasonable, and if they accept his evidence they must acquit him. This is because the question is whether he genuinely or honestly believed that the woman was consenting to intercourse. It will not do if he acted without thinking or was indifferent as to whether or not he had her consent. The man must have genuinely formed the belief that she was consenting to his having intercourse with her. But this need not be a belief which the jury regards as reasonable, so long as they are satisfied that his belief was genuinely held by him at the time.

These observations are consistent with the comment in Meek at p. 281, that the court had no difficulty in accepting that an essential element in the crime of rape was the absence of an honest belief that the woman was consenting. It was noted in that case that the absence of reasonable grounds for such an alleged belief would however have a considerable bearing upon whether any jury would accept that such an honest belief was held. The same points were made by Lord Fraser of Tullybelton in D.P.P. v. Morgan [1976] AC 182 at p. 237E–F where he said:

"It seems to me that … the mens rea of rape is an intention to have

intercourse with a non-consenting woman or to have non-consensual intercourse. If that is so, then the logical difficulty of requiring a belief in the woman's consent to be based on reasonable grounds arises sharply. If the effect of the evidence as a whole is that the defendant believed, or may have believed, that the woman was consenting, then the Crown has not discharged the onus of proving commission of the offence as fully defined and, as it seems to me, no question can arise as to whether the belief was reasonable or not. Of course, the reasonableness or otherwise of the belief will be important as evidence tending to show whether it was truly held by the defendant, but that is all."

A direction that the man must have reasonable grounds for thinking that the woman consented is therefore a misdirection as to the law on this matter. But the jury should be directed to consider whether there were reasonable grounds for the belief in reaching their decision as to whether in fact it was genuinely or honestly held by him at the time.

As the trial judge points out in his report, there is ample authority that a person who claims that he acted in self-defence because he believes that he was in imminent danger must have reasonable grounds for his belief: Owens v. H.M. Advocate 1946 JC 119;Crawford v. H.M. Advocate 1950 J.C. 67; Jones v. H.M. Advocate 1990 J.C. 160. He suggests that Meek is inconsistent with this line of authority. As the Solicitor General conceded that there was a misdirection in this case and that a direction on the lines indicated by Meek was appropriate here, we were not addressed to any extent on this point. We wish to say however that we are not to be taken, from what we have said in this opinion, as casting any doubt on the soundness of the dicta in those cases. Nor are we to be taken as suggesting that in any other case, where a substantive defence is based on a belief which is mistaken, there need not be reasonable grounds for that belief. The reason why, in rape cases, the man's belief need not be shown to be based on reasonable grounds for his belief to be relevant as a ground of acquittal is because of the particular nature of the mens rea which is required to commit the crime. Difficult questions of fact may arise as to whether, if he can give no reasonable grounds for his belief, the accused genuinely believed at the time that the woman was consenting or was reckless or indifferent as to the matter of consent. These questions are however for the jury to resolve, on proper directions by the trial judge, in the light of the evidence.

In view of the position which the Solicitor General has adopted in the light of the evidence in this case, we shall allow the appellant's appeal against his conviction on charge (1) by setting aside the verdict of the trial court and quashing the conviction. The Solicitor General did not ask us to grant authority to the Crown to bring a new prosecution on this charge.

[Their Lordships then considered the appeal against conviction on charge (5), with which this report is not concerned, the court having continued the appeal to obtain a transcript of certain evidence.]