Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 19

HCA/2015/001960/XC

Lady Dorrian

Lady Clark of Calton

Lord Malcolm

OPINION OF THE COURT

delivered by LADY DORRIAN

in

APPEAL AGAINST CONVICTION

by

STEWART WINTON

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  Kennedy, Advocate;  Capital Defence Lawyers, Edinburgh for E Thornton & Co, Oban

Respondent:  McSporran, AD Sol Adv;  Crown Agent

25 February 2016

[1]        The appellant was convicted of a charge of rape in terms of section 1 of the Sexual Offences (Scotland) Act 2009 and sentenced to 4 years 6 months’ imprisonment.  The charge alleged that the complainer was someone who was incapable, as a result of mental disorder, of consenting to the conduct narrated in the charge, all in terms of section 17(2) of the Act.  Medical and other evidence led in support of this allegation was not challenged at trial, and the fact of penetration was not disputed.  The position of the defence was that the accused reasonably believed that the complainer had in fact consented.  The Crown’s primary position was that the jury should find that the complainer was incapable of consenting, but in the alternative, if not satisfied on that issue, they could in any event be satisfied on the evidence that she did not in fact consent, and convict accordingly.  It should be noted that although the trial judge gave the jury the option to delete the reference to section 17, they did not do so and must be taken to have concluded that the complainer was in fact incapable of giving consent within the meaning of the Act.

[2]        Section 17 provides:

“(1) This section applies in relation to sections 1 to 9.

(2) A mentally disordered person is incapable of consenting to conduct where, by reason of mental disorder, the person is unable to do one or more of the following—

(a) understand what the conduct is,

(b) form a decision as to whether to engage in the conduct (or as to whether the conduct should take place),

(c) communicate any such decision.

(3) In this Act, “mental disorder”has the same meaning as in section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) (and related expressions are to be construed accordingly).”

Elaborating on the defence position that the Crown had not excluded the appellant as having a reasonable belief in consent, defence counsel suggested in his speech that in a case such as this the Crown would also require to exclude that the appellant had an honest belief that the complainer was capable of consenting.  The trial judge, surprised by this approach, directed the jury that this was incorrect.  She directed them that the third element which the Crown required to establish was:

“..that there was no reasonable belief on the part of the accused that she was consenting and, in this instance, incapable of consent.”

As the trial judge elaborated:

“..it’s only if his belief that she consented or was capable of consent was a reasonable one where his actions wouldn’t amount to rape. So, please note that having an honest belief that the person concerned was capable of consent is not enough, it must be held on reasonable grounds…………you must be satisfied that the crown have shown that the accused did not have a reasonable belief, and that is to say it must be a belief that is held on reasonable grounds.”

The trial judge then directed the jury on the factors which may be relevant to these issues.

Submissions for the appellant
[3]        Counsel for the appellant submitted that the trial judge’s direction as to the third element of the offence was a misdirection, and that although the trial judge correctly directed the jury that the appellant’s belief in consent required to be reasonable, so far as his belief that the complainer had the capacity to consent, the law only required that the belief be honest.  No authority was advanced for the proposition that where an individual was incapable of consent, the Crown required to exclude that the accused had an honest belief that she was so capable, as well as excluding a reasonable belief that she did in fact consent.  It was argued that the terms of section 17 left the question open.  Where an individual without capacity nevertheless appeared to be consenting, the Crown would require to exclude that the accused had an honest belief that she had the capacity to do so.  In such cases there was a two‑stage test:  belief as to consent; and belief as to capacity.  The former required to be reasonable, the latter did not.  The Crown required to exclude both a reasonable belief in consent, and an honest, if unreasonable, belief in capacity to consent.  A distinction required to be drawn between, for example, section 14, which provided that a person who was asleep or unconscious was incapable of consenting to any conduct, and section 17 incapacity.  The former condition would be clear and obvious where the latter need not be.  It was thus necessary to import the concept of an honest, although possibly unreasonable, belief in capacity.  This argument was not excluded by the terms of section 17, which did not specify the nature of any defence available.  This was to be contrasted with the position under section 30 of the Sexual Offences Act 2003, where the corresponding legislation provided the mens rea of the offence to be that an accused knew or could reasonably be expected to know that a complainer had a mental disorder and that because of it, or an associated reason, was likely to be unable to refuse.  The previous Scottish legislation in relation to sexual activity with a mentally disordered individual who was incapable of consent (Section 311 of the Mental Health (Care and Treatment) (Scotland) Act 2003) provided that it was a defence that the person charged did not know and could not reasonably have been expected to know that the other person had a mental disorder. It was problematic that section 17 was silent as to the question of reasonable belief, but in the absence of specific provision, all that required to be excluded was an honest, if unreasonable, belief in capacity.

Submissions for the Crown
[4]        The Advocate Depute submitted that no two‑stage test arose.  The appellant’s argument flew in the face of the statutory regime and it was of no moment that legislation in another jurisdiction, or legislation which had been repealed in this jurisdiction, were in different terms.  The Act specified in section 1 what the Crown required to prove on a charge of rape.  When section 17 applied, the complainer was deemed incapable of consent, and the question for the jury was thus whittled down to whether the Crown could exclude a reasonable belief as to consent.  There was no discrete requirement to exclude a belief in capacity.  The trial judge had not misdirected the jury.  However, if it could be said that there had been a misdirection, it was one favourable to the accused since it required the Crown to go the extra step of excluding a reasonable belief in capacity, which was not required by the Act.

Analysis and decision
[5]        As the trial judge noted, section 1 of the 2009 Act provides that there are three elements to a charge of rape:

(1) If a person (“A”), with A's penis—

(a) without another person (“B”) consenting, and

(b) without any reasonable belief that B consents, penetrates to any extent, either intending to do so or reckless as to whether there is penetration, the vagina, anus or mouth of B then A commits an offence, to be known as the offence of rape.”

Consent means “free agreement” (section 12) and in determining whether a belief in consent was reasonable, regard should be had to whether the accused took any steps to ascertain whether there was consent, and if so what those steps were (section 16).  In the present case the essential element of the absence of consent was established from proof that the complainer was incapable of consent in terms of section 17 of the 2009 Act, which expressly applies to a section 1 offence.  The only “two‑stage” test which arises is under section 17 itself, where the requirements are that (i) the complainer has a mental disorder; and (ii) that mental disorder has the effect specified in section 17(2).

[6]        The submissions for counsel for the appellant fail to recognise that section 17 of the 2009 Act does not create an offence:  it merely provides that a person who comes within the terms of the section is not capable of giving consent.  The offences in respect of such person are created not by section 17 but by the terms of sections 1‑9 of the 2009 Act, whichever is applicable in the circumstances.  It is therefore to those offences, rather than to the terms of section 17, that attention must be directed to ascertain the components of the relevant offence.  In the present case, the offence is that under section 1 which is committed when there is penile penetration of another person in circumstances (a) without that person’s consent;  and (b) without any reasonable belief that the person consents.  The effect of section 17 is that where the requirements of that section are met, the Crown need not prove lack of consent.  In the context of a model of consent meaning “free agreement”, establishing that there was no reasonable belief in consent necessarily implies, where the complainer is someone to whom section 17 applies, a lack of any reasonable belief that the individual was capable of consent.

[7]        As the trial judge noted in her report:

“The 2009 Act replaced the common law crime of rape.  In so doing it deliberately removed the common law defence of honest belief by the introduction of the requirement on the Crown to prove the absence of reasonable belief on the part of the accused. Whilst the absence of reasonable belief is an essential element of rape under section 1, which the Crown must prove in every case, it is only where the accused’s belief in consent was a reasonable one where his conduct would not amount to rape.  This means honest belief is no longer sufficient and is necessarily removed. There is no basis in law under this statutory offence to import an old common law test, which is now departed from, where the rape is based upon incapacity to consent.”

[8]        We agree entirely with these remarks.  The law in relation to rape and other sexual offences was completely re‑drawn by the 2009 Act.  Section 52 not only abolishes the old common law offences of rape and the like, it specifies that where provisions of the 2009 Act regulate conduct, those provisions have the effect of replacing any former rule of law regulating conduct.  The terms of sections 1‑9 do not provide for a defence of reasonable belief in consent, which would raise an evidential burden on the defence, rather they provide that an absence of reasonable belief in consent is an essential part of the offence to be proved by the Crown.

[9]        The trial judge directed the jury as to the factors which may be relevant to the question before them, for example the history of interaction between the complainer and the appellant;  and what objectively he must have known as to her condition.  She was right to do so.  As the advocate depute accepted, the nature, degree, and manner of manifestation of any disorder are all likely to be relevant to the question of reasonable belief in consent, but the focus should be on that question, and the steps taken by the accused to ascertain that there was free agreement.  It would be impossible to restrict the appellant’s argument to incapacity only arising from proof of the requirements of section 17, and there is no basis for importing a concept of honest belief in capacity in these cases and no others.  The effect of section 13, for example, is that where the Crown establishes one of the factual situations specified in that section, that is sufficient to establish the lack of free agreement, and thus of consent.  In her report the trial judge, noting the requirements of section 1 of the Act, observed:

“In this context the third essential element which the Crown must prove is that there was no reasonable belief on the part of the accused that the complainer consented.  Where the absence of consent arises from incapacity – be it under section 17 or from any other condition of the complainer such as intoxication or unconsciousness – the Crown must exclude any belief held on reasonable grounds that the complainer was capable of and did consent.”

We are not persuaded that in that direction, or at any point in her charge, the trial judge was directing the jury that there was an additional fourth requirement over and above absence of reasonable belief in consent, rather than that the issue of reasonable belief in consent carried with it an implication of reasonable belief in capacity.  If it were possible to read her directions in this way, it would in any event be a misdirection favourable to the appellant.  In fact the trial judge’s directions appear to us to accord with the direction approved in the unreported Note of Reasons in the case of Edward Flynn v HMA 8 November 2013, a case which involved a sleeping or intoxicated complainer:

“Note well that for that belief to exclude rape it must be reasonable.  Simply having an honest belief is not enough.  That belief must also be held on reasonable grounds.  The law requires that in determining whether a person had a reasonable belief that a woman was consenting, you should have regard to whether he took any steps to find out if she was consenting and what steps these were.  Again you should look objectively at all the evidence relating to the interaction between (the accused) and (the complainer), and to his knowledge of the circumstances and what must have been obvious to him.”

[10]      The nature of the complainer’s condition, and in particular the apparent presentation of it, are factors which are relevant to the question of whether there is established an absence of reasonable belief in consent.  To introduce the concept of honest but unreasonable belief in the way suggested by counsel for the appellant is in our view entirely inconsistent with the 2009 Act as a whole, and in particular with the model of consent promoted by that Act, which is one requiring active, continuing and positive consent.

[11]      For these reasons, the appeal is refused.