No need for corroboration of absence of reasonable belief of consent in rape cases, appeal court rules

The Lord Justice General, Lord Carloway, sitting with Lord Menzies and Lord Turnbull, made clear the court’s position on the appropriate directions to be given by a trial judge to a jury in refusing an appeal against conviction by Mohammed Maqsood, who was given an extended sentence of eight years after being found guilty of raping an 18-year-old woman while she was intoxicated with alcohol and incapable of giving consent.

‘Reasonable belief’

Lord Carloway observed that the redefinition of rape in section 1 of the Sexual Offences (Scotland) Act 2009 “continues to pose problems for trial courts” and that despite several attempts the appellate court has been unable to solve those problems, as judges “continue to wrestle with appropriate directions” to a jury on the evidence required to demonstrate the absence of a reasonable belief.

In this case, which dealt specifically with the evidential requirements where it was maintained that the complainer was incapable of consent because of the effect of alcohol, the trial judge gave the jury the standard general directions on the onus and standard of proof and corroboration, directing directed the jury that if they believed the appellant then they would be bound to acquit, and that the same result would follow if his evidence provided a reasonable doubt.

The judge defined rape as consisting of penetration, without the other person’s consent and without the accused having any reasonable belief that the person consented, adding that “all three elements had to be proved by corroborated evidence”.

In relation to consent, the Crown’s position had been that the complainer was so drunk that the appellant must have known that she was incapable of consent which, if proved, showed that there had been no consent and no reasonable belief that there had been consent, while the appellant’s position was that he did have a reasonable belief that she was capable of consenting and that she did consent, the judge said.

The trial judge continued, in relation to the absence of consent because of the effect of drink, that there was evidence from independent witnesses about how much the complainer had to drink, CCTV footage, evidence from a toxicologist, medical evidence about bruises on the complainer’s body, evidence of her distress as spoken to by her mother and boyfriend, which the judge said “can corroborate what the distressed person says” happened to her.

The jury were also directed that they need to think about corroboration of whether there was no reasonable belief that she consented to sex.

‘Misdirection’

The ground of appeal was that the trial judge “misdirected” the jury on distress.

She had said that it could corroborate what the distressed person said, including that she had not consented to what had happened.

It was submitted that the judge erred in failing to direct the jury that distress could only be used to corroborate the “mens rea” of the appellant or, if corroboration of that was not required, to inform the jury of that mens rea, only if the jury were satisfied that the complainer was distressed at the time of the incident.

It was also argued that the jury had to find corroboration of the appellant’s lack of reasonable belief.

If this was a case where reasonable belief did not arise (Graham v HM Advocate 2017 SCCR 497 and Wilkinson v HM Advocate 2018 SCCR 248), the direction on distress and the lack of corroboration thereof could not found a successful ground of appeal.

However, there was a “tension” between the proposition that in some cases the requirement for corroboration of lack of reasonable belief was unnecessary and the dicta in Winton v HM Advocate 2017 SCCR 320.

The proper course, it was submitted, ought to be to convene to a full bench to consider the matter further.

‘No requirement for corroboration’

Refusing the appeal, Lord Carloway observed in Graham, the court’s explanation of what was required to be proved may have been misinterpreted.

Delivering the opinion of the court, the Lord Justice General said: “In Graham v HM Advocate 2017 SCCR 497 the court explained that, although an absence of belief was an essential element of the crime of rape, it did not require ‘formal proof’. This latter expression was intended to mean that it did not require to be established by corroborated evidence.

“Whether an accused had, or did not have, a reasonable belief was an inference to be drawn from proven fact (eg the use of force or, in this case, signs of obvious intoxication). The accused’s mental element did not require to be supported by corroborated testimony.

“Thus far, the matter ought to have been clear. That clarity ought to have been heightened by the model directions that it was only intentional penetration and lack of consent that required corroborated evidence.

“However, the court recognises that the phraseology of the opinion in Graham may have been interpreted as meaning that in some cases, in which reasonable belief was a live issue, there did require to be corroborated evidence of a lack of reasonable belief and thus a direction on that matter.

“That is not what was intended. Rather, the court was simply attempting to say that no direction on reasonable belief was required unless that issue was live. It so happened that the specific direction in Graham, with which the court was dealing, was one relating to corroboration.

“Putting matters in reverse order, first, although a judge ought to continue to direct a jury that the definition of rape includes an absence of reasonable belief, no further direction on reasonable belief is required unless that is a live issue at trial.

“That issue will be live only in a limited number of situations in which, on the evidence, although the jury might find that the complainer did not consent, the circumstances were such that a reasonable person could nevertheless think that she was consenting. That does not normally arise, for example, where an accused describes a situation in which the complainer is clearly consenting and there is no room for a misunderstanding.

“Secondly, it is only intentional penetration and lack of consent that require to be proved by corroborated evidence.”

He added: “In a case, as here, where intercourse is admitted or otherwise proved, and the Crown contended that the complainer was incapable of consent as a result of the effects of alcohol, that incapacity does require formal proof. It will be proved where the complainer speaks to such a state (as the complainer did here) and there is supporting evidence of that state.

“The corroboration in this case came from the evidence of the complainer’s friend, the bar staff, the CCTV recording and the complainer’s boyfriend and his mother. In this situation it is the complainer’s state of intoxication, rather than any distress, that is important. If it is held that the complainer could not consent because of the effects of alcohol, that is all that is required as a matter of sufficiency. The jury would still have to consider an accused’s evidence that the complainer was not so incapacitated through drink that she could and did consent, but that is another matter.

“The trial judge’s directions were accordingly erroneous in a number of respects, notably on both absence of reasonable belief and the need to provide corroborated evidence of that absence. These directions were entirely in favour of the appellant. They did not cause any miscarriage of justice. The jury’s verdict, based on the complainer’s intoxication, would have been almost inevitable standing the state of the proof. The appeal is accordingly refused.”