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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Osborne
Lord Wheatley
Lord Mackay of
Drumadoon
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[2008] HCJAC
Appeal No: XC158/07
OPINION OF THE COURT
delivered by LORD WHEATLEY
in
NOTE OF APPEAL AGAINST
CONVICTION
By
HER MAJESTY'S ADVOCATE
Appellant:
against
BL
Respondent:
_______
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Appellant: Bain, Q.C., A.D.; Crown Agent
Respondent: Clancy Q.C.; McSparran McCormick, Solicitors, Glasgow
19 December 2008
[1] The respondent
originally appeared on an indictment which contained three charges. The third of these charges was in the
following terms:
"On various occasions between
2 February 1976 and 1 February 1982, both dates inclusive at (a
specified address) you did assault CR, your step-daughter, born 2 February
1964, ... lie on top of her and did rape her:
or alternatively
on various occasions between 2
February 1976
and 1 February 1982 both dates inclusive, at (a specified address) ... you did
have incestuous sexual intercourse with CR, your step-daughter, born 2 February
1964 ...
Contrary to the Incest Act 1567."
The case called before the judge of first instance at the
High Court in Kilmarnock on 28 February
2007 for the
purpose of debating an objection to the relevancy of the alternative
charge. The Court was advised that the
first two charges, and the first alternative of the first charge, were not
to proceed and the respondent was acquitted on those charges. The court was also advised that the
respondent accepted that an incident of sexual intercourse had occurred between
himself and his step-daughter after she had reached the age of 16. At the commencement of the debate, a joint
minute was tendered to the Court in terms of which it
was agreed:
(1) That Crown witness number 2, EML married
DR on 9 September 1961;
(2) That Crown witness number 1, CR,
was born 2 February 1964 and was the daughter of EML and the
said DR; and
(3) That EML married the panel on 26
June 1970.
[2] It therefore
followed that the complainer CR was the legitimate step-daughter of the
respondent. Having considered the
competing submissions at debate, the presiding judge concluded that the
relationship between the respondent and the complainer was not one which was
covered by the Incest Act 1567, and that the alternative of charge 3 was
accordingly irrelevant. He also
indicated that, had it been necessary for him to form a view on a supplementary
argument put up by the respondent to the effect that the Incest Act 1567 was
incompatible with the Human Rights Act 1998 and Article 8 of the European
Convention of Human Rights, he would have agreed with that submission and held
for that reason also that the charge should fall. He accordingly acquitted the respondent on
what was the only remaining charge of the indictment.
[3] The Crown
have now appealed that decision, and in the Note of Appeal tender three
substantive grounds. These are:
"(1) The learned judge erred in law in holding
that the second alternative charge of incest libelled in charge three was
irrelevant on the ground that it was not a crime known to the law of Scotland;
(2) The second alternative charge of incest
libelled in charge three was a relevant charge on the ground that it was a
crime known to the law of Scotland on the dates libelled;
(3) The complainer on the second alternative
charge of incest is a CR. Said
complainer is the legitimate daughter of the respondent's wife. On the dates libelled in the charge, the
relationship between said complainer and the respondent was a prohibited
relationship for the purposes of the Incest Act 1967 ... "
[4] After sundry
procedure, the respondent lodged a devolution issue minute and a minute of
incompatibility on 1 April 2008.
The minute amplified the supplementary submissions put up by the
respondent's counsel at the original hearing, namely that the Incest Act 1567
was incompatible with the minuter's Convention rights, particularly those found
in Articles 6 and 7. The minute of
incompatibility is in almost identical terms to the devolution issue minute,
raises the same issues, and does not require separate attention.
[5] The relevant
part of the Incest Act 1567 (1 James V1, cap 14) is in these terms:
"... Parliament statutis and ordanis
that quhatsumeuer persoun or personis committeris of the said abhominabill
cryme of incest that is to say quhatsumeuer persoun or personis thay be that
abusis thair body with sic personis in degree as Goddis word hes expreslie
forbiddin in ony tyme cuming as is contenit in the xviij Cheptour of Leuiticus
salbe puneist ..."
[6] The Act
therefore incorporates by reference the prohibited degrees of relationship
found in the18th Chapter of Leviticus.
In 1567 the version of the Bible in current use was the Geneva edition. For the purpose of the present charge, the relevant
reference in the 18th Chapter in that version of the Bible is
verse 17, which provides:
"Thou shalt not discover the shame of
ye wife and of her daughter, nether shalt ye take her sonnes daughter, nor her daughters daughter, to uncover her shame: for they are thy kinsfolk, and it were wickednes."
Verse 17 is one of a series of verses which describe the
various relationships which constitute the crime of incest. These illustrations are prefaced by
verse 6: "None shal come nere to
anie of ye kindred of his flesh to uncover her shame: I am the Lord."
[7] It is the
Crown's contention in this present appeal that verse 17 of the 18th Chapter
of Leviticus refers to a prohibition against a man having sexual intercourse
with his step-daughter, on the ground that such a relationship is incestuous;
the respondent submits that that is not a proper reading of what is to be found
in verse 17, or alternatively that it is a definition which is insufficiently
precise or accessible in terms of the respondent's Convention rights.
[8] On the
question of the correct interpretation of what is meant by verse 17 of the 18th
Chapter of Leviticus, the arguments which found favour with the judge of first
instance hinged on the terms of verse 6.
Verse 6, it was submitted, created a prohibition only against
sexual relationships with consanguine or blood relatives. There was nothing to suggest that such a
relationship between a step-father and a step-daughter was intended to
constitute the crime of incest. As
against that, verse 17 was, in the contention of the Crown, a prohibition
against relationships between a step-father and his step-daughter; it did not
matter that the relationship was one of affinity rather than
consanguinity. However, the judge of
first instance considered that there was no ascertainable binding authority
which could direct him to this latter conclusion. He considered that the Incest Act of 1567 was
a penal statute and should be construed strictly. He found the case of HMA v MR 1914 J.C. 108,
to which he had been referred, which held that sexual intercourse between a man
and his illegitimate step-daughter was not a crime known to the law of
Scotland, offered support for his view.
That case followed HMA v Black 1 Adam 312, where an accused
charged with incest with his step-daughter pled guilty, but after it was
ascertained that the complainer was illegitimate, the Crown withdrew the
libel. The judge of first instance
thought that it was wrong to discriminate between a legitimate and an
illegitimate step daughter, and concluded that an interpretation of a penal
statute which meant that relations between a step-father and his legitimate step-daughter
were prohibited, while relations between a step-father and his illegitimate
step-daughter were not, could not be valid.
[9] In the
present appeal, the Advocate depute argued that the Lord Ordinary's opinion of
the judge of first instance was based on an erroneous understanding of the
relevant authorities and of the text of the Act as illustrated by the 18th
Chapter of Leviticus. He had not
considered, nor had he had his attention drawn to, the dicta in Hume on Crimes
Vol. 1, p. 441 which clearly imported that what verse 17 meant
was that a sexual relationship between a step-father and a step-daughter
constituted the crime of incest. Nor had
he been referred to HMA v Aikman & Martin 1917 J.C. 8 (a seven Judge
case) which suggests that, on a proper interpretation of the Act, the
relationship described in the present charge was prohibited. He had instead relied on certain observations
made by Lord Milligan in HM Advocate v RM 1969 J.C. 52 (at p. 63) which properly read does not
say what he seems to take from it. In
this respect the Advocate depute thought it worthwhile to cite in full the
passage in Lord Milligan's opinion from which the judge of first instance
extracted the dictum on which he
relied:
"There is no doubt whatever that, if
the child had been the legitimate daughter of the accused's wife, the libel
would have been relevant. The position,
however, is very different where the child is the illegitimate child of her
mother. No case was referred to in which
a prosecution had taken place where the person involved had been illegitimate,
and all the text-book articles quoted appeared to take the view that, where one
of the parties was illegitimate, no question of incest could arise, except
possibly in the case of a mother and her illegitimate son. I have for myself considerable difficulty in
seeing why intercourse between a man and his wife's legitimate daughter should
be a criminal offence, whereas it would not be a criminal offence if the
daughter was illegitimate. In a criminal
case, however, it is essential that it must be clear beyond a peradventure that
the crime libelled is in fact a crime (see Hume
on Crimes, Vol. i, p. 447) before the relevancy of an indictment can be
sustained ..."
The Advocate depute submitted that it was wrong for the judge
of first instance to conclude that the comment by Lord Milligan that he
had difficulty in seeing why intercourse between a man and his wife's
legitimate daughter should be a criminal offence, whereas it would not
be a criminal offence if the daughter was illegitimate, supported the view that
the 1567 Act did not apply to a relationship with step-father to
step-daughter. Further, he had
misdirected himself by identifying verse 6 of Chapter 18 as the
source of a fundamental proposition that to constitute the crime of incest
everything thereafter described had to be a consanguine relationship unless it
was specifically described as being a relationship of affinity. This was contrary to the approach taken in
both HMA v Aikman & Martin and
in HM Advocate v RM, which emphasised that the first step in the process was the
interpretation of the Act and not of Chapter 18. It is the word "degre" on which the proper
interpretation of the statute turns. To
interpret the meaning of "degre", Leviticus provides explanations and
illustrations. Verses 7 to 17 of
Chapter 18 give a series of examples of what is more generally expressed in
verse 6, and these cover relationships of both sanguinity and
affinity. Acknowledging the relationship
between step-father and step-daughter was a "degre" clearly covered by verse 17
and was therefore prohibited.
[10] Counsel for
the respondent argued that the judge of first instance was correct to conclude
that there was no binding authority on him on this matter under Scots Law. Such observations as had been made were
obiter and inconsistent. The true
meaning of what was a prohibited relationship was to be found in the text of
the legislation. Further, the Lord
Ordinary was right to apply a strict construction of what was a penal statue in
the way least burdensome to the subject (Hume
on Crimes vol. 1, p.447). In
counsel's view, the plain and ordinary words in verse 6 were concerned with
consanguine sexual relations; the phrase "ye kindred of his flesh" clearly
meant a blood relationship. Many of the
other examples of incest in verses 7 to 17 of Chapter 18 refer to
relationships defined by consanguinity.
Counsel accepted that some of those examples of prohibited incestuous
conduct did involve relationships of affinity but he argued that the terms of
verse 6 should not be read as a device to extend consanguinity relationships
to include similar relationships of affinity.
Not all consanguine relationships in Leviticus, in counsel's view, were
reflected in similar prohibitions relating to relations of affinity. When relations by affinity were prohibited,
they were specifically stated as such.
It was not immediately obvious that the phrase in verse 17 "ye wife
and her daughter" meant a step-daughter; in the ordinary usage of words it
simply indicated the wife's daughter.
Such a reading as contended for by the Crown seemed inconsistent with other
verses in Chapter 18. When the term
"kinsfolk" or "kindred" were used elsewhere in Chapter 18, it meant blood
relatives; there appeared to be no prohibited relationships by affinity with
what were called kinsfolk of any kind.
In Chapter 16, an Act passed on the same day as the Incest Act, the
difference between consanguine relations and relations by affinity is clearly
drawn, but that was not true of the Incest Act.
[11] Counsel for
the respondent then turned his attention to the various authorities which could
be said to touch on the topic. He
considered first of all the case of HMA
v Aikman & Martin 1917 J.C. 8;
1916 2 S.L.T. 278. In that case,
which was concerned with an incestuous relationship between an uncle and his
niece, Lord Johnson expressed the opinion that the function of the Court was to
interpret the statute of 1567 and not Chapter 18 of the Book of Leviticus,
except in so far as that was necessary to ascertain the meaning of the
statue. He was satisfied that the
essential purpose of the Act was to prohibit sexual relationships within
certain degrees, and that verses 6 to 17 of Chapter 18 gave but a series
of examples of how that relationship more generally expressed in verse 6
might be interpreted. He concluded that
the examples given were not intended as a limiting and exhaustive specification
of the cases to which the prohibition of verse 6 was to apply, and further
that where a relationship by consanguinity was mentioned, the corresponding
relationship by affinity was meant to be covered. Counsel submitted that this last conclusion
was wrong. He argued that the only
reasonable and most likely meaning of the reference in verse 17 was that
the daughter referred to was the legitimate blood daughter of the panel. There was no other express reference in the
Act or in Leviticus to the position of a father and his own daughter (see HM Advocate v Aikman & Martin p. 9).
Having regard to what was said in verse 6, and reading the Act as a
whole, the provisions in verses 7 to 17 must relate only to consanguine
relationships under the statute unless otherwise specifically stated. Counsel further submitted that there was no other
authority that was of real assistance. Hume on Crimes, (p. 440) provided
simply an assertion supported by an anecdotal reference to one case; there was
no recent authority, and Hume's opinion contradicted his own caveat that if a
penal statute is ambiguous there should be a strict and literal interpretation
to the side of mercy (see p. 447).
Similarly the passage in McDonald
on Criminal Law of Scotland (5th ed),
p. 148 to like effect was a bare statement, unvouched by reasoning or
case-law. None of the cases cited by the
Crown was directly in point, and there was no apparent justification for
Lord Johnston's obiter opinion in HM
Advocate v Aikman & Martin
that a relationship by affinity could be regarded as prohibited merely because
a similar consanguine relationship was.
[12] We accept that
the terms of verse 6 in Chapter 18 of Leviticus appear to be
concerned only with sexual relations between consanguine relatives. However we do not accept that that verse
defines the essence of all of the prohibited relationships contemplated by the
Act, nor do we think that the examples given in the following verses are
exhaustive. As Lord Justice Clerk Scott
Dickson pointed out in HM Advocate v Aikman & Martin (at p. 9),
relationships between a father and daughter, or between a grandmother and
grandson, are not expressly struck at by the Act, but are clearly
incestuous. Nor do we consider that
relationships by affinity are excluded unless they are specifically so
described, although that is a conclusion which is not necessary to this
decision. We are satisfied that in terms
of the Act, the relationship between a step-father and step-daughter is
prohibited. That is clearly the
interpretation placed on verse 17 by Hume (p 449) and McDonald
(p. 148). In our view it is not
difficult to understand why these two writers
came to that view. Certainly regard has
to be had to the antiquity of the language and forms of expression, which are
very different from what might be expected today. But the first step towards understanding what
is meant by verse 17 must follow an examination of the terms of the Act itself. It is true that verse 6 might be seen as a
general introduction to the categories of relationship afterwards described in
the following verses, and that it refers to consanguine relationships
only. But in the succeeding
verses 8, 14, 15 and 16, what are plainly relationships by affinity are
described as forming the basis of the charge of incest. Clearly the purpose of the Act is to describe
the kind of relationships which form the basis of such a charge, whether they be a relationship of consanguinity or affinity. It is in our view overly elaborate to suggest
that because verse 6 refers to a blood relationship, then subsequent
verses should be defined by that, especially when the terms of those verses are
reasonably clear. The purpose of the Act
is to describe the "persons in degree" between whom relationships are
prohibited. The full terms of
verse 17, cited earlier, in our view clearly refer to the daughter of the
wife of the panel, with whom it is prohibited to have a sexual relationship. That description is apt to cover any category
of daughter, whether she be the issue of the panel or
any other person. By identifying the
person to be protected by reference to her relationship to her mother, the 1567
Act clearly intended that to be the sole means of identifying the parties to a
prohibited relationship. It therefore
follows, in our view, from the terms of verse 17 and the Incest Act itself,
that it is the relationship between the mother and daughter which is sought to
be protected, irrespective of the daughter's paternity. The Act emphasises this by identifying that,
in such a relationship, it is also the mother's shame which is uncovered, and
by stressing that even where the person in question was a step-daughter of the
panel, by virtue of the panel's own relationship with the mother she has become
one of the kindred of the panel.
[13] We accept that
none of the authorities to which we were referred provides clear and
unequivocal support for the position which we believe to be correct. In HMA v
Aikman and Martin, Lord Johnson may have
been right to suggest that, as a matter of interpretation, all affinity
relationships which have a parallel with consanguine relationships should be
covered by the Act, but that is not a matter necessary for us to consider in
the present case. Nor do we think that
Lord Milligan's obiter remarks in HM
Advocate v RM concerning the
different treatment accorded to legitimate and illegitimate daughters of the
panel are particularly helpful. The idea
that illegitimate children are not protected under this Act appears to have
been long accepted in our law (see e.g. Alison's
Criminal Law Vol. 1, p. 565;
HM Advocate v Black 1894 SLT 436), but whether it was
justified or not, such a consideration cannot, in our view, rob the Act of its
manifest intent.
[14] Accordingly,
we are satisfied that, particularly on the authority of Hume and McDonald, the
correct interpretation of the Act as illustrated by verse 17 of the 18th
Chapter of Leviticus is that it prohibits sexual relations between a
step-father and a step-daughter. So far
as we can see, this has not, until now, ever been actively doubted, except by
implication where it has been suggested that such a relationship would not be
prohibited if the step-daughter was illegitimate. Our view is further reflected in the
understanding of the Scottish Law Commission in publishing their Memorandum on
the Law of Incest in Scotland in1980, in which they too accepted
that interpretation as being part of the law of Scotland (p. 16). This was a conclusion which they repeated in
their Report on the Law of Incest in Scotland (Scot. Law Com. No. 69; Cmnd 8422, 1981) which
they subsequently published. Indeed it
was the law relating to the relationship that features in the present case that
the report sought to amend, and this was subsequently given effect to in
Section 2(B) of the Incest and Related Offences (Scotland) Act 1986. In introducing that new section, there was no
suggestion that a new offence hitherto unknown to the law of Scotland was being introduced. In all the circumstances we are satisfied
that the judge of first instance reached a wrong conclusion on this matter.
[15] Turning to the
devolution minute, the issue was described in that document by the respondent in
the following terms:
"(i) That by virtue of Section 57(2) of
the Scotland Act the Lord Advocate has no power to act in a manner incompatible
with the minuter's Convention rights, as incorporated by the Human Rights
Act. Reference is also made to Section
6(1) of the Human Rights Act and to Sections 44(1)(c)
and 129(2) of the Scotland Act;
(ii) Article 6 of the Convention
provides, inter alia, that an accused
person charged with a criminal offence is entitled to a fair trial;
(iii) Article 7 of the Convention provides,
inter alia, that
'No one shall be held guilty of a
criminal offence on account of any act or omission which did not constitute a
criminal offence under national or international law at the time when it was
committed ... '
The object and purpose of Article 7 is to provide effective safeguards
against arbitrary prosecution, conviction and punishment. Article 7 has been interpreted as
embodying the principle that crimes must be clearly defined in law, and that
the law comprises written and unwritten law, which implies qualitative
requirements of (a) accessibility and (b) foreseeability (including a
requirement or provision). Reference was
made to CR v UK, (1995) E.H.R.R. 363.
(a) 'Accessibility' requires that 'the
citizen must be able to have an indication that is adequate in the
circumstances of the legal rules applicable to the given case' (Sunday Times v UK, E.C.T.H.R, No. 30, para. 31).
That (b) 'foreseeability' requires
the law to be formulated with sufficient precision to enable the citizen to
regulate his conduct; he must be able - if need be with appropriate advice - to
foresee, to a degree that is reasonable in the circumstances, the consequences
which a given action may entail." (Sunday Times v UK at para. 49).
[16] Against this
background, counsel for the respondent argued that in respect of the question
of accessibility and foreseeability, the respondent must be able with
reasonable ease to find the relevant legislation and to foresee with a degree
reasonable in the circumstances what consequences his conduct might
engage. Reference was made to Reed & Murdoch, A
Guide to Human Rights Law in Scotland, at paras. 3.33 to 3.39. The Act of 1567 does not indicate which
version of the Bible contains the necessary explanatory references. There is in fact only one copy of the Geneva
Bible in the National Library of Scotland.
This was not reasonably accessible.
The bald statement in Hume cited earlier is scant basis for saying that the
law is accessible, and neither McDonald nor any text-book author gives any
detailed justification for this repeated assertion. The 1567 Act was expressed in obscure
language and grammatical terms; there was an absence of binding authority that
what was alleged in the present indictment was incest, and in view of this
inaccessibility and obscurity the appellant's rights under Article 7 had
been infringed, and the Lord Advocate had breached Section 57(2) of the
Scotland Act by bringing the present prosecution.
[17] We were not
persuaded that these arguments were sound.
As the Advocate depute pointed out, in considering both the question of
accessibility, and the requirement of foreseeability and its consonant
requirement that the law be formulated with sufficient precision, it is
reasonably foreseeable that a person in the position of the respondent would seek
appropriate legal advice. Reference was
made to the Sunday Times v UK (1979-1980) 2 EHRR 245. This was a statutory offence where the law
could generally be regarded as certain, as opposed to a common law offence
which may change over the years.
Reference was made to CR v UK (1996) 21 E.H.R.R.363.
[18] Accordingly we
were satisfied that there was no difficulty in understanding either the law or
the text. There was clear authority in
the textbooks available at the material time this offence was committed, and
the appropriate legal advice from a competent source would have presented no
difficulty to the respondent had he enquired about the legitimacy of his
conduct. In particular the standard
textbook at the material time, Dickson on
Criminal Offences in Scotland makes a clear and unequivocal statement to
the effect that a sexual relationship between a step-daughter and step-father amounted
to incest. Although that statement is
unaccompanied by other vouching authority, it is, in our view, unquestionably
authoritative and represents what would have been the appropriate advice to be
tendered at that time to the appellant.
The orthodox definition of what constituted the offence of incest in the
present circumstances, and the appropriate relevant advice, was therefore
accessible. In addition, the true nature
of the offence was, in our view, clearly foreseeable for the same reasons; the
statement in McDonald is formulated with sufficient precision which could scarcely
be clearer. In these circumstances we
reject both the devolution minute and the minute of incompatibility.
[19] Accordingly we
have concluded that the judge of first instance was wrong to conclude that the
relationship described in the present indictment was not prohibited by the
Incest Act of 1567, and to acquit the respondent. We therefore remit the case back to him to
proceed as accords.
