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Cite as: [2005] HCJAC 65, [2005] ScotHC HCJAC_65

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McSorley v. Her Majesty's Advocate [2005] ScotHC HCJAC_65 (27 May 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Osborne

Lord Cameron of Lochbroom

[2005HCJAC65]

Appeal No: MISC 44/05

OPINION OF THE COURT

delivered by THE LORD JUSTICE CLERK

PETITION TO THE NOBILE OFFICIUM

TIMOTHY McSORLEY

Petitioner;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Petitioner: M E Scott QC, Miss Mitchell; McClure Collins

Respondent: Bell QC, AD; Crown Agent

27 May 2005

The petition
[1] On 23 May 2000 the petitioner was convicted of rape. He was refused leave to appeal at the first and second sifts. He contends that the refusal by the second sift judges was invalid. In the prayer of the petition, as amended at the Bar, he craves the court to set aside the decision of the second sift judges and to return the appeal to the second sift for a decision of new. The competency of the petition is not in dispute.

The trial and conviction
[2] At the time of the petitioner's trial the use of force was an essential element in the definition of rape. The complainer's evidence was that the petitioner had had intercourse with her forcibly and against her will. The petitioner admitted that he had had intercourse with the complainer. His defence was that she consented. For corroboration of the complainer the Crown relied on evidence of her de recenti distress. The trial judge, Lady Cosgrove, gave the jury the directions that at that time were the standard directions in a rape trial where there was a defence of consent.

The Lord Advocate's Reference (No 1 0f 2001)
[3] In March 2002 a court of seven judges decided by a majority that the use of force was not an essential element in the definition of rape (Lord Advocate's Reference (No 1 of 2001), 2002 SCCR 435). In McKearney v HM Adv (2004 JC 87) the court recognised that as the law stood before the Lord Advocate's Reference (No 1 of 2001) the use of force could be held to imply that the accused had had the necessary mens rea and that, in that state of the law, a specific direction on mens rea was, in general, unnecessary. For the future, however, the court held that in cases where it was not alleged that the accused used force, the jury should be given a specific direction on the question of mens rea.

The grounds of appeal
[4] After the decision in McKearney, the petitioner obtained legal advice and was allowed to lodge a note of appeal. His grounds of appeal are (1) that there was insufficient evidence to entitle the jury to find that mens rea had been proved; (2) that the trial judge failed to direct the jury on the mens rea of rape; (3) that the trial judge failed to direct the jury on the question of the petitioner's honest belief in the complainer's consent; (4) that in directing the jury that the crucial issue was whether or not the complainer consented, the trial judge removed from the jury's consideration the question of mens rea and the question of honest belief, and (5) that esto the complainer's evidence implied that the petitioner had the necessary mens rea, there was no corroboration of that. Counsel for the petitioner accepts that grounds (4) and (5) are essentially reformulations of grounds (2) and (1). Ground (3) is no longer being pursued.

[5] In her report on the appeal the trial judge points out that in accordance with the law as it stood at the time of the trial, the jury were directed that the use of force was a requirement of the actus reus; that it was not necessary for a separate direction to be given on the question of the accused's knowledge of the complainer's lack of consent, and that proof that penetration had been achieved by force carried with it the necessary implication that the accused had acted while fully aware that the complainer was not consenting and with the deliberate intention, manifested by his use of force, to overcome her refusal to have intercourse with him. Under reference to Meek v HM Adv (1983 SLT 280) she comments that if the jury were satisfied that the force was used, the requisite mens rea was treated as being evident from and clearly implied by the actus reus itself.

[6] The trial judge thinks it likely that the grounds of appeal have been prompted by a misunderstanding of the meaning and effect of the decision in McKearney v HM Adv (supra). She says that in that case there was no evidence of force, or threats of force, and the Crown led no other evidence from which the necessary mens rea could be inferred. She says that there is nothing in the Opinions in McKearney to suggest that in a case such as this, where there was evidence of the use or threat of force immediately preceding penetration, other evidence of mens rea was required or that directions on mens rea of the kind suggested were essential.

The statutory framework
[7] Section 107 of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) provides inter alia as follows:

"107.-(1) The decision whether to grant leave to appeal for the purposes of section 106(1) of this Act shall be made by a judge of the High Court who shall-

(a) if he considers that the documents mentioned in subsection (2) below

disclose arguable grounds of appeal, grant leave to appeal and make such comments in writing as he considers appropriate; and

(b) in any other case-

(i) refuse leave to appeal and give reasons in writing for the

refusal; ...

(2) The documents referred to in subsection (1) above are-

the note of appeal lodged under section 110(1)(a) of this Act; ...

(4) Where leave to appeal is refused under subsection (1) above the appellant may, within 14 days of intimation under subsection (10) below, apply to the High Court for leave to appeal ...

(5) In deciding an application under subsection (4) above the High Court shall -

(a) if, after considering the documents mentioned in subsection (2) above

and the reasons for the refusal, the court is of the opinion that there are arguable grounds of appeal, grant leave to appeal and make such comments in writing as the court considers appropriate; and

(b) in any other case-

(i) refuse leave to appeal and give reasons in writing for the

refusal; ...

Consideration whether to grant leave to appeal under subsection (1) or (5) above shall take place in chambers without the parties being present.

(7) Comments in writing made under subsection (1)(a) or (5)(a) above may, without prejudice to the generality of that provision, specify the arguable grounds of appeal (whether or not they are contained in the note of appeal) on the basis of which leave to appeal is granted ... "

[8] Section 110 of the 1995 Act provides inter alia as follows:

"110.-(1) Subject to section 111(2) of this Act -

Within eight weeks of lodging intimation of intention to appeal ... the convicted person may lodge a written notice of appeal ...

(3) A note of appeal shall- ...

(b) contain a full statement of all the grounds of appeal; ...

(4) Except by leave of the High Court on cause shown, it shall not be competent for an appellant to found any aspect of his appeal on a ground not contained in the note of appeal.

Subsection (4) above shall not apply as respects any ground of appeal specified as an arguable ground of appeal by virtue of subsection (7) of section 107 of this Act ... "

The decisions on the sifts
[9] On 20 September 2004 the first sift judge, Lord Carloway, refused leave to appeal. He gave the following reasons:

"The issue in this case was whether the appellant forced the complainer to have sexual relations with him against her will or not. He said she consented and she said she did not and was screaming at him to stop. There was no room for an 'honest belief' defence nor any need for a direction upon intention of the type explained in McKearney v HMA 2004 SCCR 251. The trial judge adequately directed the jury that for a conviction they first required to accept the complainer's evidence (pp 15 and 16) and hold it adequately corroborated by distress. She told them too that if they were of the view that the appellant's evidence, even if not wholly credible, raised a reasonable doubt then they had to acquit. In the circumstances of this case then, the trial judge's directions cannot be criticised and they provide no arguable ground of appeal."

By letter dated 7 October 2004 the petitioner's agents appealed to the High Court from that decision and made certain representations in support of the appeal. We need not rehearse their representations since counsel for the petitioner does not rely on them.

[10] By letter dated 18 October 2004 the petitioner's agents submitted an Opinion of senior counsel in support of the appeal and asked that it be put before the second sift judges. We are satisfied that, while the Opinion sets out detailed arguments, with references to authority, in support of the grounds of appeal, it does not seek to add to or to amend any of those grounds.

[11] On 5 November 2004 the second sift judges, the Lord Justice General, Lord Penrose and Lord Johnston, refused the appeal. They gave the following reason:

"We agree with the reasons given by Lord Carloway."

[12] Counsel for the petitioner submits that the decision of the first sift judge is erroneous in law. She seeks to establish (a) that, even as the law stood before the Lord Advocate's Reference No.1 of 2001, a McKearney direction was necessary in every case; and (b) that distress cannot constitute corroboration of mens rea. These are not issues that can be resolved in this process, which is confined to the question of the adequacy of the reasons for refusal that are complained against.

Submissions for the parties
[13] Counsel for the petitioner submits that the decision of the second sift judges is invalid because those judges failed to give reasons for refusal with specific reference to the Opinion that was submitted to them.

[14] The advocate depute contends that the reasons given by the first sift judge are clear and that they cover all of the issues raised in the grounds of appeal; that the Opinion raised no new question of law; and that in those circumstances the second sift judges were entitled to refuse leave to appeal for the reasons given by the first sift judge.

Conclusions
[15] The petitioner had a statutory right to be given reasons for the refusal of leave to appeal at both the first and the second sifts (1995 Act, s 107(1)(b)(i), (5)(b)(i)). Counsel agree that to fulfil the duty of giving reasons, the sifting judge or judges must set out reasons that are intelligible and deal with the issues of law that are raised in the grounds of appeal. Counsel also agree that there is no reason in principle why second sift judges should not express their reasons referentially by adopting those of the first sift judge.

[16] The short and straightforward points in this case are (1) whether the first sift judge gave adequate and intelligible reasons for refusal; and (2) if he did, whether it was sufficient in the circumstances for the second sift judges to adopt them.

[17] Any decision whether to grant leave to appeal under section 107 has to be made by reference inter alia to the note of appeal tendered under section 110(1)(a) of the 1995 Act (supra; cf s 107(1),(2)(a)). The note of appeal must contain a full statement of all the grounds of appeal (s 110(3)(b)). In the context of section 110, "grounds of appeal", in our opinion, are the propositions of law on which the conviction is challenged. In this case the clear and succinct reasons given by the first sift judge are, in our view, adequate and intelligible and address all of the petitioner's grounds of appeal.

[18] Between the decision of the first sift judge and the consideration of the appeal by the second sift judges, the grounds of appeal remained the same. The Opinion of counsel did not modify or add to the issues that those grounds raised. It only set out the arguments in support of the legal propositions contained in the grounds of appeal. The second sift judges therefore had to consider the same issues as the first sift judge considered; and they came to the same conclusions. They were therefore entitled, in our view, to adopt those reasons without further elaboration.

[19] We shall refuse the prayer of the petition.