Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 63

HCA/2015/3572/XC

Lord Justice Clerk

Lord Bracadale

Lady Clark of Calton

OPINION OF THE COURT

delivered by LADY DORRIAN, the LORD JUSTICE CLERK

in

APPEAL AGAINST CONVICTION

by

RCB

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  Alonzi; Faculty Services Ltd for Douglas Wright, Solicitors, Saltcoats

Respondent:  I McSporran, Solicitor Advocate, AD; Crown Agent

22 July 2016

[1]        In December 2015 at the High Court at Glasgow, the appellant went to trial on an indictment containing the following charge:

“(002) on 9 July 2014 at Victoria House, Boyle Street, Irvine you RCB did sexually assault CD, born 19 September 1986, formerly residing at [address] now deceased, and whilst she was intoxicated, under the influence of drugs and incapable of giving or withholding consent, did remove her lower clothing and underwear, expose her private parts, expose her breasts, write on her body with eye liner, handle her body, lie on top of her, penetrate her vagina with his fingers and penetrate her vagina with your penis and you did thus rape her: CONTRARY to Sections 1 and 3 of the Sexual Offences (Scotland) Act 2009”.

At the close of the crown case the Advocate Depute moved to amend the charge to delete the words “penetrate her vagina with his fingers” and by adding the word “attempt” before the words “to penetrate” and “rape” in the remainder of the charge.  The result was a charge in the following terms:

“(002) on 9 July 2014 at Victoria House, Boyle Street, Irvine you RCB did sexually assault CD, born 19 September 1986, formerly residing at [address] now deceased, and whilst she was intoxicated, under the influence of drugs and incapable of giving or withholding consent, did remove her lower clothing and underwear, expose her private parts, expose her breasts, write on her body with eye liner, handle her body, lie on top of her, and attempt to penetrate her vagina with your penis and you did thus attempt to rape her: CONTRARY to Sections 1 and 3 of the Sexual Offences (Scotland) Act 2009”.

[2]        The amendments were opposed by the defence to the extent that reference to section 1 of the 2009 Act remained in the amended charge.  It was submitted that there could be no attempt to rape contrary to that section.  The trial judge repelled the defence objection, and this appeal relates to that decision. It is not suggested that there was insufficient evidence to justify a conviction of attempted rape, rather the argument is that there can be no attempted rape under section 1 of the 2009 Act.

[3]        In repelling the defence submission, the Trial Judge observed that it was competent for a jury to convict an accused of any indictable offence.  Section 294 of the Criminal Procedure (Scotland) Act 1995 provides:

“(1) Attempt to commit any indictable crime is itself an indictable crime.”

[4]        Although it was true that attempted penetration could qualify as a section 3 offence in itself, it was a non sequitur to suggest that it was not also an attempt under section 1.

Submissions
[5]        The submission made to us reflected that made to the Trial Judge.  The amendments to the narrative of the charge ought also to have involved deletion of the reference to section 1 of the Sexual Offences (Scotland) Act 2009.  Actual penetration was an essential element for any charge under that section, and therefore it should only have been open to the jury to convict the appellant of attempting to commit a section 1 offence.  The terms of section 1 of the 2009 Act did not include attempted rape, and consequently a conviction under that section was incompetent.

[6]        Section 294 of the 1995 Act provided that an attempt to commit an indictable crime was itself an indictable crime.  It did not provide that an attempted crime was the same as a completed crime.  Esto any reference to section 1 in such a charge was necessary, the appropriate form of words would be “… and you did thus attempt to rape her in contravention of Section 1 of the aftermentioned Act: CONTRARY to Section 3 of the Sexual Offences (Scotland) Act 2009”.

[7]        The Advocate Depute submitted that rape and attempted rape were distinct and separate offences from other sexual assaults.  They had a separate sentencing regime (HM Advocate v SSK 2016 SCCR 74).  Sections 1 and 3 of the 2009 Act both carried maximum sentences of life imprisonment if prosecuted on indictment (2009 Act, sec. 48 and sch. 2).  Section 1 could only be prosecuted on indictment, whereas section 3 could be prosecuted summarily.  The crime of rape contrary to section 1 was a plea of the Crown and could only be prosecuted in the High Court of Justiciary.  It would be contrary to the intention of the legislature that a crime as serious as attempted rape be recorded only as a sexual assault, contrary to sec. 3.  The legislative intention had been to provide for a statutory definition of rape with an expanded definition.

[8]        Paragraph 10(i) of Schedule 3 to the 1995 Act provided that on indictment or, as the case may be, on complaint, which charged a completed offence, an accused might be lawfully convicted of an attempt to commit the offence.  Paragraph 14(b) provided that where the facts provided under the indictment or the complaint did not amount to a contravention of the enactment [under which it was libelled], it was lawful to convict of the common law offence.  Section 294(1) of the Act further provided that an attempt to commit any indictable crime was itself an indictable crime.

[9]        Section 50 and schedule 3 of the 2009 Act listed alternative verdicts for offences under the 2009 Act.  These did not include attempts to commit any of the substantive offences there referred to, including rape or sexual assault, whether by penetration or otherwise. It would be unnecessary to do so standing the terms of section 294 and schedule 3 to the 1995 Act.

[10]      The charge had been appropriately libelled, save for the inclusion of a reference to section 3 of the 2009 Act which was unnecessary.

Analysis
[11]      We have come to the conclusion that the Trial Judge was correct to repel the submission that the reference to section 1 should be deleted from the charge.  Section 294 applies equally to statutory offences as to common law ones.  It is competent for a jury to return a verdict of an “attempt” to commit any indictable offence, which would include an offence under section 1 of the 2009 Act.  The fact that the completed offence under section 1 requires penetration does not prevent the libelling and proving of an attempt to commit a section 1 offence, where penetration had been attempted but has failed.  As the Lord Justice Clerk (Carloway) said in HMA v SSK 2016 SCCR 74 at para 22:

“Rape may often, if not always, be a crime of violence, but it is not an aggravated assault. It is a separate crime involving the violation of a person's sexual integrity.  It has, in that context, a separate sentencing regime.”

An attempt is committed where:

“..the intention to commit the crime was brought forward to the state of perpetration by the doing of some act to bring the intention into effect” (Brown v Docherty 1996 JC 48, Lord Justice General (Hope), p50)

[12]      In that case the court proceeded on the basis that the principles governing what constituted an attempt at common law applied equally to an attempt to contravene statutory provisions (Lord Cameron of Lochbroom, p 64).

[13]      Attempt to rape or attempt to penetrate are not separately provided for within the terms of the 2009 Act.  Schedule 3, which provides a long list of alternatives in respect of the primary provisions of the Act, makes no reference to attempts at all.  That is powerful support for the argument that such provision was not necessary because the matter was already covered by section 294 of the 1995 Act.  Section 294 applies to both common law and statutory offences.  It is therefore quite clear that an attempt to commit rape – an offence under section 1 – is an indictable offence.  That is not in fact disputed.  All that is disputed is whether it should have been libelled as contrary to section 1.

[14]      As is explained in Gordon: Criminal Law (Third edition, para 6.47) the fact that a statutory provision creating an offence makes no reference to attempt is irrelevant, even if other provisions of the same statute do make such reference.  The example is given of the offence under section 178 of the Road Traffic Act 1988 which makes it an offence to take and drive away a motor vehicle without consent.  The statute does not provide for an attempt to commit such an offence, but the High Court held, in the unreported case of Wilson & Forbes v Morton (1975), that an attempt to contravene section 178 may competently be libelled.

[15]      Section 19 of the Misuse of Drugs Act 1971, a UK statute, specifically provides for that statute what is otherwise provided for by section 294 of the 1995 Act.  Section 19 provides that:

“It is an offence for a person to attempt to commit an offence under any other provision of this Act…”

An attempt to have a controlled drug in one’s possession is an offence in contravention of section 5(3), even though the section itself makes reference only to the completed act (see Brown v Docherty, supra) and in our view it is properly libelled as such, without any requirement also to make reference to section 19.

[16]      By analogy, the same reasoning applies to offences under the Sexual Offences (Scotland) Act 2009.  In the course of the oral arguments advanced before us, it may be that the emphasis placed on section 294 was at the expense of full consideration of paragraph 10(1) of schedule 3 to the 1995 Act to which the Advocate Depute had made reference in his written submissions, which provides that:

“Under an indictment, or as the case may be, a complaint which charges a completed offence, the accused may be lawfully convicted of an attempt to commit the offence”

Accordingly, where the completed offence of rape contrary to section 1 has been libelled, a jury may competently return a verdict of attempted rape.  They would do so by indicating the inclusion of the word “attempt” in returning their verdict but with no alteration of the relevant section of the Act which has been libelled.

[17]      An attempt to commit the offence of rape under section 1 is just that: it is not another form of offence of the kind referred to in section 3.  The mens rea is the same as that required for the completed act, even though the actus reus be different.  It follows that the Advocate Depute at the trial was correct not to move to delete reference to section 1.  

[18]      One of the issues raised in the course of argument was a concern on the part of the appellant that what would appear on his record would reflect a contravention of section 1 simpliciter, without indicating that his conviction had been for attempted rape rather than the completed offence.  We do not have sufficient information before us as to the means by which convictions are administratively recorded for the purpose of a criminal record to enable us to assess how real a concern that might be – it is not apparent that there is real consistency in such matters.  However, we are of the view that it should not be at all difficult administratively to indicate that the conviction was for an attempt, and that it would be desirable for this to happen.