Crown succeeds in appeal against trial judge’s decision to accept no case to answer submission in Dundee rape trial

Lord Carloway

About this case:

• Citation:
  [2022] HCJAC 19
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Carloway

The respondent, MMI, was acquitted of a charge of contravening section 1 of the Sexual Offences (Scotland) Act 2009 on 13 May 2022. The trial judge sustained a no case to answer submission on the third day of a trial at the High Court in Edinburgh.

The appeal was heard by the Lord Justice General, Lord Carloway, sitting with Lord Pentland and Lord Matthews. Edwards QC appeared for the Crown and G Ross, advocate, for the respondent.

State of intoxication

During the trial, evidence was led from the complainer, a barman at the Shotz Pool and Snooker Club where the complainer and respondent were seen together, and a taxi driver who had refused to take the complainer and the respondent to the Hotel Indigo in Dundee where the alleged offence was said to have taken place. Evidence was also given by the hotel receptionist and two police officers who appeared at the hotel after responding to a call from the taxi driver.

The complainer recalled becoming separated from her friends after a drinking session in Dundee and then going to the pool bar with the respondent, whom she had never met before. She had no memory of going to the hotel or what happened in the room but recalled waking up not wearing underwear. It was agreed at the trial, as a consequence of scientific and medical evidence, that sexual intercourse had occurred.

All of the Crown witnesses described the complainer as having been in some state of intoxication varying from slightly to very, with CCTV footage showing her as being very unsteady on her feet. The complainer’s blood alcohol concentration was estimated to have been between 265 and 340mg per 100ml at the time of the incident.

It was the position of the trial judge that it was not sufficient for there to have been ample evidence of intoxication at a high level to form the necessary inference that the complainer was incapable of consent. She did not agree that it was only where there was no evidence from which that inference could be drawn that a no case to answer submission should succeed. The Crown challenged the trial judge’s approach to the evidence on appeal.

Issue of capacity

Delivering the opinion of the court, Lord Carloway observed: “It is important to note at the outset that a judge does not have the power to direct a jury to return a not guilty verdict on the ground that no reasonable jury could convict. Where no issue of corroboration arises (and there is none in this case), it is only where there is no evidence from which a jury can infer that a fact in issue is proved that a no case to answer can be sustained.”

He continued: “Where the issue is one of capacity to consent, that is to reach a ‘free agreement’, it will rarely be open to a judge to sustain a submission where the evidence is of a young woman, ‘alone at night and vulnerable through drink, [who] is picked up by a stranger who has sex with her within minutes of meeting her’. This is only a partial quotation from Hallett LJ in R v H (E&W Court of Appeal, 2007) [but] the court agrees with Hallett LJ that issues of consent and capacity to consent should normally be left to the jury to determine. So it is the case here.”

Examining the trial judge’s approach in this case, Lord Carloway said: “The court is unable to agree with the trial judge’s assessment of the evidence and the inferences which can be drawn therefrom. First, there was, as the trial judge recognised, more than sufficient evidence to prove that the complainer was heavily intoxicated. The toxicology itself demonstrated very high levels of alcohol, sufficient in many people to induce a comatose state or even to cause death.”

He went on to say: “A taxi driver was so concerned about the state of the complainer that he phoned the police and told them where she and the respondent were going. The only reason for doing this was because of his apprehension about what might happen to the complainer in her apparent state.”

Lord Carloway concluded: “When the police arrived at the hotel, the complainer was unable to recollect what had happened to her no more than a few minutes beforehand. She was confused and incoherent. All of this is sufficient for a jury to infer that at the time of the act of admitted sexual intercourse the complainer was not capable of consenting to that act.”

The court therefore repelled the no case to answer submission and remitted the case to the trial judge for further procedure.