Criminal Appeal Court: Attempt to commit statutory rape is a competent charge

The Criminal Appeal Court held that an attempt to commit the offence of rape under section 1 of the Sexual Offences (Scotland) Act 2009 was a competently libelled charge, in refusing an appeal against conviction by a man found guilty of attempting to rape a woman after a judge had refused a defence submission.

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Bracadaleand Lady Clark of Calton, heard that the appellant “RCB” went to trial accused of rape and sexual assault, contrary to sections 1 and 3 of the 2009 Act, but at the close of the Crown case the advocate depute moved to amend the charge by adding the word “attempt” before the words “to penetrate” and “rape”.

The amendments were opposed by the defence to the extent that reference to section 1 of the 2009 Act remained in the amended charge, on the ground that there could be no “attempt to rape” contrary to that section, but the trial judge repelled the defence objection and the accused was duly convicted.

On appeal, it was argued that the amendments to the narrative of the charge ought also to have involved deletion of the reference to section 1 of the 2009 Act.

It was submitted that 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”.

While section 294 of the Criminal Procedure (Scotland) Act 1995 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, it was argued.

However, the appeal judges held that the trial judge was “correct” to repel the submission that the reference to section 1 of the 2009 Act should be deleted from the charge.

Delivering the opinion of the court, the Lord Justice Clerk said: “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.

“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.”

The judges referred to Gordon: Criminal Law, which explains that 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 given is 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.

Section 19 of the Misuse of Drugs Act 1971, specifically provides for what is otherwise provided for by section 294 of the 1995 Act, as it states 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, and in our view it is properly libelled as such, without any requirement also to make reference to section 19,” Lady Dorrian said.

By analogy, she added, the “same reasoning” applies to offences under the Sexual Offences (Scotland) Act 2009.

The Lord Justice Clerk continued: “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.

“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.”