Glasgow man convicted of rape of young partner loses appeal against conviction

The appellant, RKS, argued that the trial judge had erred in directing the jury regarding whether they could take into account the alleged start of the sexual relationship between the two and that the absence of reasonable belief did not require corroboration.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, sitting with Lord Menzies and Lord Turnbull.

Volatile relationship

The appellant met the complainer when they both lived in the same block of flats in Weston-Super-Mare. At the time, the appellant was 27 years old and complainer was around 14 years old. The complainer’s evidence was that they began a sexual relationship within a few weeks of meeting. On the complainer’s 16th birthday she moved to Glasgow to live with the appellant.

The complainer testified that their relationship was volatile and involved many arguments and reconciliations. On 19 February 2017, they had an argument whilst attending the complainer’s father’s birthday party in Glastonbury. On their return to Glasgow, the complainer arranged for her family to drive to Glasgow to collect her and her child.

On that day, the appellant raped the complainer in the living room of their home despite her protests. At one point during this, he was strangling her with both hands on her neck. After she had arrived in Glastonbury, she disclosed the rape to the police.

The appellant’s evidence was that he had not had sexual intercourse with the complainer before her arrival in Glasgow. He admitted having sex with the complainer on the night in question but said that it was consensual and instigated by the complainer.

It was submitted for the appellant that the alleged sexual activity from when the complainer was 14 and 15 was not relevant to the rape charge, as it predated the alleged rape by a number of years and did not form part of the same series of events. The events were introduced in relation to an assault charge that was dropped and never considered by a jury. Further, the trial judge ought to have considered whether that evidence was so prejudicial that the jury ought to be directed to ignore it.

The appellant also submitted that the trial judge erred in directing the jury that only the intentional or reckless penetration of the complainer required to be proved by corroborated evidence, and that the requirement that the accused had no reasonable belief that she consented did not need to be. The lack of reasonable belief was one of the three essential elements of the offence of rape, and therefore required to be proved by corroborated evidence.

It was submitted that two previous decisions in which the court explained that reasonable belief did not need to be corroborated, Graham v HM Advocate and Maqsood v HM Advocate, were both wrongly decided. The court was invited to remit the present case to a larger bench to permit reconsideration of these decisions.

Clearly a sexual offence

The opinion of the court was given by Lord Turnbull. In consideration of the first ground of appeal, he said: “Two considerations arise in order to determine whether an act or omission is connected with a sexual offence charged in the indictment. First, the act or omission requires to be specifiable by way of reference to a sexual offence. Second, the act or omission must relate to the same event as the offence charged or to a series of events of which that offence is also part.”

He continued: “The question is not, as was advanced in the appellant’s submissions, whether the act is specifiable by reference to the sexual offence charged in the indictment, in this case the charge of rape. The conduct specified in the first paragraph of the present docket can clearly be described as a sexual offence.”

On the evidence introduced, he said: “The terms of section 288BA(1) [of the Criminal Procedure (Scotland) Act 1995] make it plain that an act specified in a docket requires to be connected with a sexual offence charged in the indictment. Whilst the appellant faced only one charge by the time the trial judge came to direct the jury, that charge was the only sexual offence which had ever featured on the indictment. The docket could only ever have specified an act which was connected with the events of charge 2. In the absence of an objection to the inclusion of the docket, subsection (5) created a presumption that the evidence of the act specified in the docket was relevant to the jury’s determination of charge 2.”

On the second ground of appeal, he said: “In these circumstances there was simply no room for a separate and hypothetical consideration of whether, despite the fact that the complainer did not consent, for some reason, about which there was no evidence, the appellant nevertheless may have thought that she was consenting. It would have been wrong and confusing for the trial judge to have introduced directions based on a concept which did not feature in the evidence led at the trial. We do not accept the contention that reasonable belief is a live issue in every prosecution under section 1 of the [Sexual Offences (Scotland) Act 2009], regardless of the nature of the evidence led.”

Citing Lord Carloway’s opinion in Graham v HM Advocate that the purpose of the 2009 Act was simply to change how the mental element of rape was established and not to add a new requirement that required corroborated evidence, he said: “This analysis led the court in the cases of both Graham v HM Advocate and Maqsood v HM Advocate to state that a distinct direction on corroborating the accused’s lack of reasonable belief is not necessary unless that is a live issue at the trial. Nothing which has been advanced on the appellant’s behalf causes us to think that what the court said in either of the cases of Graham or Maqsood ought to be reconsidered. The directions which the trial judge gave in the present case were appropriate, sufficient and in accordance with law.”

For these reasons, the appeal was refused.