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Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> APPEAL AGAINST CONVICTION BY LW AGAINST HER MAJESTY'S ADVOCATE [2020] HCJAC 50 (06 November 2020)
URL: http://www.bailii.org/scot/cases/ScotHC/2020/2020_HCJAC_50.html
Cite as: 2020 GWD 38-486, 2021 SCCR 15, 2021 JC 125, [2020] HCJAC 50
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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2020] HCJAC 50
HCA/2020/28/XC
Lord Justice General
Lord Malcolm
Lord Turnbull
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
APPEAL AGAINST CONVICTION
by
LW
Appellant
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: Findlater; John Pryde & Co (for Brazenall & Orr, Dumfries)
Respondent: Gillespie AD; the Crown Agent
6 November 2020
Introduction
[1] On 31 October 2019, at the High Court in Glasgow, the appellant was found guilty of
the rape of his step-daughter, namely RM, on various occasions between October 1988 and
March 1992 when RM was aged between 16 and 19. At the material time, the appellant
would have been aged between 28 and 31. He was also found guilty of incest under
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2
section 2B of the Sexual Offences (Scotland) Act 1976. Only the rape conviction is
challenged.
[2] The appeal raises a stark issue of whether a complainer’s allegation that she was
raped by an appellant, who had fathered her child, was corroborated by the very nature of
the familial relationship and general domestic circumstances.
The Evidence and No Case to Answer Submission
[3] The complainer had died before the trial. She had given a statement to the police
that, over the period in the charge, the appellant had repeatedly raped her. From an early
age, she had been physically abused both by her mother and the appellant, who were
married in 1978 when the complainer was five. She had always referred to the appellant as
“dad”. The sexual abuse had started when she was 13 (cf the libel of 14). It began by the
appellant inserting his fingers, and latterly objects, into her vagina several times a week.
When she was 16, he began to rape her. This all occurred in the family home.
[4] It was agreed by joint minute that the complainer had given birth to the appellant’s
son on in March 1992 when she was 19 years old. This had been established by DNA
testing.
[5] The complainer’s mother described the domestic setting. She confirmed that the
complainer called the appellant “dad”. She maintained that, as she could no longer have
children, the complainer had offered her services as a surrogate, by artificially inseminating
herself with the appellant’s semen in return for financial support. When she had initially
been asked about the complainer’s allegations, the complainer’s mother had made no
reference to this arrangement. The jury clearly rejected it.
[6] The trial judge determined that there was a case to answer.
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Submissions
Appellant
[7] The appellant submitted that there was insufficient evidence of rape. Although an
act of sexual intercourse had been proved by virtue of the conception of the appellant’s
child, there was no corroboration of lack of consent. The evidence of the domestic
circumstances did not confirm or support the complainer’s account (Fox v HM Advocate 1998
JC 94 at 100 and 109). It was not enough for the evidence to be consistent with the
complainer’s account (ibid at 112, approving Smith v Lees 1997 JC 73 at 109). Although
corroboration could be supplied by circumstantial evidence (Spendiff v HM Advocate 2005 1
JC 338). Sexual attraction between parent and child (Oedipus and Electra complexes) was
not unknown. The use of general background circumstances could not assist in considering
intercourse amounted to incest did not corroborate lack of consent.
Respondent
[8] The advocate depute argued to the contrary. Evidence of the parental relationship
was independent evidence which was capable of supporting the complainer’s evidence that
she did not consent. Corroboration of lack of consent could be found by drawing an
inference from the nature of the parties’ relationship (Spendiff v HM Advocate (supra)). The
domestic circumstances were not merely consistent with the complainer’s account, they
confirmed or supported that account. A jury would be entitled to hold that a girl would not
choose to have sex with a man whom she considered to be, and called, her father and who
was living with her mother in the family home.
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4
Decision
[9] The evidence of the complainer, in so far as demonstrating the occurrence of sexual
intercourse, was corroborated by the joint minute of agreement that the appellant is the
father of the complainer’s child. The issue is whether the relationship of, in effect, father and
child, between the appellant and the complainer, and their living in the same household as
the complainer’s mother, had the potential to provide corroboration of the complainer’s lack
of consent. The resolution of this issue depends upon whether these circumstances “support
LJG (Carloway) delivering the opinion of the court, at para [20] and following Fox v HM
Advocate 1998 JC 94, LJG (Rodger) at 100, see also LJC (Cullen) at 109). This inevitably
depends on the particular facts and circumstances of the case.
[10] The fact that a rape complainer is the daughter or step-daughter of an accused can be
(Hamilton), delivering the opinion of the court, at para [18]). A significant difference in age,
delivering the opinion of the court, at para [32]). These are factors which, depending on the
other circumstances, may demonstrate the inherent unlikelihood of consent. However, the
mere fact that a relationship was incestuous, or that there was a significant age gap, cannot
of itself corroborate a complainer’s account of a lack of consent. There must be more to it for
the incest, even combined with the age gap, to be regarded as confirming or supporting the
lack of consent.
[11] In analysing this, it is not the likelihood of the offender’s behaviour which is under
scrutiny but that of the complainer. The starting point is that incest is a cultural taboo (see
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Scottish Law Commission Memorandum (No 44): The Law of Incest in Scotland (1980)
para 1.1). Hume (Commentaries i. 446) describes the source of the law as not being societal
policy or discipline but the “native feelings of the human constitution”. Alison (Principles
562) refers to “Nature herself” inspiring “an abhorrence of the act”. In more modern times,
as described by the Finnish anthropologist Edvard Westermarck in 18911, the vast majority
of humans feel an intense aversion to the idea of having sexual relations with close family
members with whom they have grown up in a family setting, even if they are not related by
blood2. Empirical research has confirmed this to be the case.
[12] Where absence of consent is to be corroborated by circumstantial evidence, the
question will be whether the circumstances are capable, in combination, of yielding an
inference which supports or confirms the complainer’s testimony. When this arises as a
question of sufficiency, the evidence relied upon by the Crown is to be taken at its highest. It
is to be interpreted in the way most favourable to the Crown (Mitchell v M Advocate
2008 SCCR 469 LJG (Hamilton), delivering the opinion of the court, at para [106]).
[12] In the complainer’s situation, not only had she been in a close family relationship
with the appellant, which was in effect one of parent and child, she had also been in that
relationship since childhood. There was a significant age gap between the appellant and the
complainer, albeit not one that would cause concern in relationships involving adults. The
complainer’s mother was in a continuing relationship with the appellant. It is the
combination of these circumstances, which permits an inference to be drawn, that provides
1 The Westermarck Effect: from The History of Human Marriage [1891]
2 Green, Stuart P., How to Criminalize Incest 11 May, 2017 (available at SSRN:
(1921) of Westermarck
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confirmation or support for the complainer’s account that sexual relations with her step-
father took place without her consent.
[13] The jury must have accepted this analysis of the available corroboration. That being
so, the appeal must be refused.