AA v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk (Dorrian),Lord Turnbull,Lord Pentland |
| Judgment Date | 09 February 2021 |
| Neutral Citation | [2021] HCJAC 9 |
| Docket Number | No 21 |
| Court | High Court of Justiciary |
[2021] HCJAC 9
Lord Justice Clerk (Dorrian), Lord Turnbull and Lord Pentland
Graham v HM Advocate [2017] HCJAC 71; 2017 SCCR 497; 2017 SCL 963; 2017 GWD 30-479
Maqsood v HM Advocate [2018] HCJAC 74; 2019 JC 45; 2019 SCCR 59; 2018 GWD 40-490
RKS v HM Advocate [2020] HCJAC 19; 2020 JC 235; 2020 GWD 19-267
Justiciary — Procedure — Charge to jury — Sexual assault — Reasonable belief in consent — Evidence that complainer intoxicated with drugs and alcohol and incapable of giving consent — Whether specific direction to jury on reasonable belief necessary — Sexual Offences (Scotland) Act 2009 (asp 9), sec 3
AA was indicted at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate, for trial in the High Court of Justiciary on charges of sexual assault, contrary to sec 3 of the Sexual Offences (Scotland) Act 2009. He pled not guilty and the cause proceeded to trial in the High Court of Justiciary. The appellant was convicted of both charges and thereafter appealed against conviction to their Lordships in the High Court of Justiciary.
Section 3 of the Sexual Offences (Scotland) Act 2009 (asp 9) provides, inter alia, “(1) If a person (‘A’)– (a) without another person (‘B’) consenting, and (b) without any reasonable belief that B consents, does any of the things mentioned in subsection (2), then A commits an offence, to be known as the offence of sexual assault. (2) Those things are, that A– … (b) intentionally or recklessly touches B sexually, (c) engages in any other form of sexual activity in which A, intentionally or recklessly, has physical contact (whether bodily contact or contact by means of an implement and whether or not through clothing) with B.”
The appellant was indicted on a charge of sexual assault in contravention of sec 3 of the 2009 Act. The Crown led evidence that, at the time sexual activity took place, the complainer had been incapable of giving or withholding consent by reason of intoxication through drugs and alcohol. The appellant gave a contrary account that the sexual activity had been initiated by the complainer and occurred with her consent. In light of the evidence, the trial judge took the view that reasonable belief was not a live issue in relation to the charge and, therefore, did not direct the jury regarding the issue of reasonable belief. The appellant was convicted. He appealed.
The appellant argued that the trial judge misdirected the jury by failing to address the issue of reasonable belief on the basis that this was a live issue in relation to the charge.
Held that the appellant's evidence amounted to the complainer having been an active and willing participant in the sexual activity libelled and in a situation, on his evidence, in which she had been clearly consenting, with no room for a...
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Appeal Against Conviction By Raymond Nyiam Against Her Majesty’s Advocate
...behalf causes us to think that what the court said in either of the cases of Graham or Maqsood ought to be reconsidered. In AA v HMA [2021] HCJAC 9 the court said that the law continues to be as stated clearly in Maqsood paragraph 16. In the light of this consistent line of authority it is ......