Rapist who claimed he ‘reasonably believed’ complainer had consented loses appeal against conviction

A man found guilty of raping a woman who was allegedly incapable of consenting as a result of a mental disorder has failed in an appeal against conviction.

The Criminal Appeal Court refused the appeal after rejecting the appellant’s claim that the judge misdirected the jury in failing to explain that the Crown required to exclude that he had an “honest belief” that the complainer was capable of consenting.

Lady Dorrian, Lady Clark of Calton and Lord Malcolm heard that the appellant Stewart Winton was sentenced to four-and-a-half years’ imprisonment after being convicted of rape in terms of section 1 of the Sexual Offences (Scotland) Act 2009.

The charge alleged that the complainer was someone who was incapable of consenting, in terms of section 17(2) of the Act.

The Crown’s primary position was that the jury should find that the complainer was incapable of consenting, but in the alternative, they could in any event be satisfied on the evidence that she did not in fact consent, and convict accordingly.

The position of the defence was that the accused “reasonably believed” that the complainer had in fact consented.

Elaborating on the defence position that the Crown had not excluded the appellant as having a reasonable belief in consent, defence counsel suggested in his speech to the jury that in a case such as this the Crown would also require to exclude that the appellant had an honest belief that the complainer was capable of consenting.

But the trial judge told the jury that this was incorrect and directed them that the third element the Crown required to establish was that there was “no reasonable belief on the part of the accused that she was consenting and, in this instance, incapable of consent”.

Although the trial judge gave the jury the option to delete the reference to section 17, they did not do so and must be taken to have concluded that the complainer was in fact incapable of giving consent within the meaning of the Act.

Counsel for the appellant submitted that the judge’s direction as to the third element of the offence was a misdirection, and that although she correctly directed the jury that the appellant’s belief in consent required to be reasonable, so far as his belief that she had the capacity to consent, the law only required that the belief be honest.

It was argued that the terms of section 17 left the question “open”, as where an individual without capacity appeared to be consenting, the Crown would require to exclude that the accused had an honest belief that she had the capacity to do so.

In such cases there was a “two-stage test”, it was submitted, belief as to consent and belief as to capacity.

The Advocate Depute submitted that no two-stage test arose and that appellant’s argument “flew in the face” of the statutory regime, as the legislation specified in section 1 what the Crown required to prove on a charge of rape.

When section 17 applied, the complainer was deemed incapable of consent, and the question for the jury was thus whittled down to whether the Crown could exclude a reasonable belief as to consent - there was no discrete requirement to exclude a belief in capacity.

It was argued that the trial judge had not misdirected the jury, but if it could be said that there had been a misdirection, it was one “favourable to the accused” since it required the Crown to go the “extra step” of excluding a reasonable belief in capacity, which was not required by the Act.

Refusing the appeal, the judges observed that the submissions of counsel for the appellant failed to recognise that section 17 of the 2009 Act did not create an offence: it merely provided that a person who comes within the terms of the section is not capable of giving consent.

Lady Dorrian explained: “The offences in respect of such person are created not by section 17 but by the terms of sections 1-9 of the 2009 Act, whichever is applicable in the circumstances. It is therefore to those offences, rather than to the terms of section 17, that attention must be directed to ascertain the components of the relevant offence.

“The effect of section 17 is that where the requirements of that section are met, the Crown need not prove lack of consent. In the context of a model of consent meaning ‘free agreement’, establishing that there was no reasonable belief in consent necessarily implies, where the complainer is someone to whom section 17 applies, a lack of any reasonable belief that the individual was capable of consent.”

The appeal judges agreed with the observations of the trial judge in her report that the 2009 Act replaced the common law crime of rape and in so doing it “deliberately removed the common law defence of honest belief by the introduction of the requirement on the Crown to prove the absence of reasonable belief on the part of the accused”.

Delivering the opinion of the court, Lady Dorrian said: “The law in relation to rape and other sexual offences was completely re-drawn by the 2009 Act. Section 52 not only abolishes the old common law offences of rape and the like, it specifies that where provisions of the 2009 Act regulate conduct, those provisions have the effect of replacing any former rule of law regulating conduct. The terms of sections 1‑9 do not provide for a defence of reasonable belief in consent, which would raise an evidential burden on the defence, rather they provide that an absence of reasonable belief in consent is an essential part of the offence to be proved by the Crown.”

She added: “The nature of the complainer’s condition, and in particular the apparent presentation of it, are factors which are relevant to the question of whether there is established an absence of reasonable belief in consent. To introduce the concept of honest but unreasonable belief in the way suggested by counsel for the appellant is in our view entirely inconsistent with the 2009 Act as a whole, and in particular with the model of consent promoted by that Act, which is one requiring active, continuing and positive consent. For these reasons, the appeal is refused.”