Rapist loses appeal against conviction over ‘insufficient evidence’ of lack of consent

The High Court of Justiciary Appeal Court ruled that the trial judge was “correct” to repel a defence submission of “no case to answer” and to allow the issue of consent to be put to the jury.

‘Unwanted sexual advances’

Lord Menzies, Lord Glennie and Lord Turnbull heard that the appellant David Briggs was sentenced to five-and-a-half years’ imprisonment in 2018 after being convicted by a jury, by a majority, on two charges alleging sexual offences committed against members of his extended family in the period between 2002 and 2006, including a charge of rape.

The evidence potentially relevant to the offence libelled in charge 1 was not confined to the description of the events alleged to have occurred on 27 October 2006 following a family wedding.

By a docket attached to the indictment the Crown gave notice that it intended to lead evidence that, on various occasions between October 1994 and October 2006, when the complainer was aged between four and 15, the appellant had used lewd, indecent and libidinous practices towards the complainer.

A feature of the conduct described by the complainer in that evidence was that she would often try to resist the appellant, for example by kicking him away or by making her body go rigid, or would try to discourage him by ignoring him, but the appellant would persist in the face of this and she would sometimes comply reluctantly in the face of his “incessant” attempts.

The complainer’s evidence was that she had returned home after the wedding reception at a nearby hotel with the appellant and two children.

They had all drunk alcohol and watched a DVD together before the complainer went to her bedroom to change into her pyjamas.

The appellant persuaded one of the other boys to go to bed while he while he went into the complainer’s room, where the attack took place.

She told the court she was “absolutely gutted” when she saw him enter her room.

Having sexually assaulted her, the appellant started to make further sexual advances in response to which the complainer “squirmed away or said no”, but he continued.

‘No case to answer’

At the end of the Crown case, counsel for the appellant made a submission of no case to answer in terms of section 97 of the Criminal Procedure (Scotland) Act 1995.

He contended that there was insufficient evidence to entitle the jury to convict of the rape alleged in charge 1 on the indictment because: (a) the complainer did not say that she was not consenting, only that she did not want it to happen; (b) the complainer did not give evidence that the appellant would have known that she was not consenting, and he had deliberately not cross-examined her on that point; (c) there was no independent evidence of distress; and (d) accordingly there was no sufficient evidence that the appellant had the necessary mens rea.

But the judge concluded that the question of whether the complainer had consented and, if not, whether the accused would have known that she was not consenting, were pre-eminently questions for the jury.

There was, in his view, “sufficient evidence” to entitle them to determine whether the complainer had given her consent and, if not, whether the accused had nonetheless had an honest belief that she had consented.

Having been found guilty, the appellant appealed against his conviction on the basis that there was “no evidence” that the complainer communicated a lack of consent to the appellant or that the appellant ought to have known that she was not consenting.

While it was accepted that there was sufficient evidence of lack of consent on the part of the complainer for that issue to be left to the jury, it was argued that there was insufficient evidence of the absence of an honest belief on the part of the appellant that the complainer was consenting to what he was doing.

The complainer had given evidence that she wanted to avoid giving the appellant the opportunity of sleeping in the same room as her, but that was never communicated to the appellant nor was there any evidence from which it could be inferred that he ought to have known that.

The complainer had also acceded to the appellant’s request to perform oral sex on him – and there was nothing in her evidence to suggest that she acted in such a way as to make known to the appellant any reservations which she might have had.

The complainer gave evidence that she suggested that they moved off the bed and onto the floor in the hope that “he wouldn’t want to and would give up” trying to have sex with her, but if that was what she was thinking she never made that clear to the appellant nor could he have been expected to realise that that was what she wanted.

And, when, during that last episode of penetrative sex, the complainer made some remark about not having any condoms, there was nothing to indicate that she was participating in sexual intercourse against her will.

‘Sufficient evidence’

Refusing the appeal, the judges ruled that there was “sufficient evidence” to entitle the jury to convict.

Delivering the opinion of the court, Lord Glennie said: “We consider that the trial judge was correct in his decision that the submission should be repelled, and that for the reason which he gave, namely that on the complainer’s evidence there was sufficient evidence from which a reasonable jury, properly instructed, could have inferred not only that the complainer was refusing her consent but also that the appellant must have realised that she was not consenting.

“At the stage of a no case to answer submission, the Crown case has to be taken at its highest. Although in the narrative of the evidence it is possible to point to certain actions by the complainer which might, on one view, have indicated that she was willing to participate in sexual activity with the appellant, and although there is force in the contention that her private thoughts and reservations would not be known to the appellant, nonetheless there was sufficient in the evidence about her body language to entitle the jury to conclude not only that she was unwilling but that she made her unwillingness clear to the appellant.”

He added: “The matters raised in the docket attached to the indictment, which was spoken to in evidence by the complainer, show a history of unwanted sexual advances by the appellant over a period of years (including the period of her early teens and immediately preceding the time of the incident narrated in charge 1), which advances were rebuffed by the complainer in a manner which must have made the appellant aware that his attentions were unwelcome. In those circumstances the jury would be entitled to ask how the appellant could have believed that the complainer was consenting to his advances on this occasion.

“Of course, it is possible that she had changed her mind, and this would be a matter for the jury; but the history of the appellant’s conduct over the preceding years would have entitled the jury to ask this question, and also to ask whether, even if in some respects the complainer did appear at times to act as though she were consenting to a particular activity, that was ‘real’ consent or simply acquiescence in the face of persistent pressing by the appellant, and whether the appellant ought to have been aware of this.”