Bakhjam v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice-General (Carloway),Lord Brodie,Lord Turnbull |
| Judgment Date | 23 January 2018 |
| Neutral Citation | [2018] HCJAC 11 |
| Date | 23 January 2018 |
| Court | High Court of Justiciary |
| Docket Number | No 12 |
[2018] HCJAC 11
Lord Justice-General (Carloway), Lord Brodie and Lord Turnbull
Advocate (HM) v D [2015] HCJ 85; 2015 SLT 727; 2015 SCCR 413; 2015 SCL 954
Donnell v HM Advocate [2009] HCJAC 83; 2009 SCCR 918; 2010 SCL 265; 2009 GWD 35–597
Stuurman v HMAdvocate 1980 JC 111; 1980 SLT (Notes) 95
Justiciary — Procedure — Charge withdrawn by the Crown — Advocate-depute referring to suspicion of guilt of withdrawn charge in jury speech — Whether oppressive and resulting in an unfair trial
Justiciary — Procedure — Special defence — Consent — No evidence of consent — Whether defence of consent before the jury
Amir Bakhjam was charged on indictment at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate, with contraventions of secs 1 and 11 of the Sexual Offences (Scotland) Act 2009. The appellant pled not guilty and a trial took place before a temporary judge (Sheriff GK Buchanan) and a jury at the High Court in Glasgow. During the course of the trial the charge of contravention of sec 11 was withdrawn. On 30 January 2017, the appellant was convicted of a contravention of sec 1. The appellant thereafter appealed against conviction to their Lordships in the High Court of Justiciary.
Section 1 of the Sexual Offences (Scotland) Act 2009 (asp 9) (‘the 2009 Act’) provides that a person commits the offence of rape when he, inter alia, penetrates the vagina of another person with his penis intentionally or recklessly, without that person consenting and without any reasonable belief that the person consents. Section 13 provides that there is no consent, inter alia, in circumstances where the complainer is incapable of consenting because of the effect of alcohol or any other substance. Section 11 provides that it is an offence for a person to intentionally administer a substance to, or cause a substance to be taken by, another person without that person knowing and without any reasonable belief that the person knows, and doing so for the purpose of stupefying or overpowering that person so as to enable any person to engage in a sexual activity with that person.
The appellant was indicted on a single charge of contraventions of secs 1 and 11 of the 2009 Act. The Crown libelled that the complainer was incapable of consenting because of the effects of alcohol or other substance. At the close of the Crown case, the Crown deleted reference to the contravention of sec 11. In the course of his address to the jury, the Advocate-depute nevertheless made reference to a suspicion of the appellant administering a drug to the complainer, before emphasising that suspicion was not enough in a criminal court.
On appeal, it was argued that the libelling of a contravention of sec 11, and the Advocate-depute's remarks about suspicion, uncorrected by the trial judge, resulted in an unfair trial. The respondent argued that there had been an evidential basis for the libelling of the contravention of sec 11 and that it had been reasonable for the Advocate-depute to state that suspicion was not sufficient.
Held that: (1) the comments from the Advocate-depute about suspicion were improper as they were open to being interpreted as a statement that the Crown retained a suspicion that the appellant had administered the drug (para 30); (2) as the comments did not have a bearing on the critical issue, which was whether the complainer had been capable of consenting, they did not result in a miscarriage of justice (paras 31, 32); and appeal refused.
Observed that: (1) oppression was a preliminary plea in bar of trial rather than a ground of appeal, but improper Crown conduct could result in a miscarriage of justice when it results in an unfair trial (para 28); and (2) neither the lodging of a special defence of consent nor the cross-examination of the complainer regarding consent equated to evidence thereof (paras 33–35).
The appeal called before the High Court of Justiciary, comprising the Lord Justice-General (Carloway), Lord Brodie, and Lord Turnbull, for a hearing, on 10 January 2018.
At advising, on 23 January 2018, the opinion of the Court was delivered by the Lord Justice-General (Carloway)—
Opinion of the Court—
[1] Between 23 and 30 January 2017, at the High Court in Glasgow, the appellant went to trial on a charge which libelled that:
‘[O]n 21 … and 22 July 2015 at … Ashton Lane, … Night Club … Bath Street, Flat …, Greenlaw Court, all Glasgow … you … did intentionally administer to, or cause a substance to be taken by, [FK] for the purpose of stupefying or overpowering her so as to enable you to engage in sexual activity involving her and thereafter you did assault [FK] … while she was heavily under the influence of alcohol, a drug or similar intoxicating substance, unconscious or asleep and incapable of giving or withholding consent and while she was awake and without her consent, seize hold of her body, touch her on the body, kiss her on the body, remove her clothing, repeatedly kiss her on the face, kiss her on the breasts and on the body, sexually penetrate her vagina with your tongue, perform oral sex on her and penetrate her vagina with your penis and you did thus rape her to her injury: CONTRARY to Sections 1 and 11 of the Sexual Offences (Scotland) Act 2009 [(asp 9)].’
[2] At the close of the Crown case the Advocate-depute moved to amend the charge in order to delete those parts of the libel which related to the administration of the substance for the purpose set out in sec 11 of the 2009 Act. The appellant was subsequently convicted of rape and sentenced to five years’ imprisonment. The case concerns the actions of the Crown in libelling and then withdrawing the sec 11 offence and thereafter addressing the jury on the basis that a suspicion lingered in that regard. The trial judge did not give a specific direction to the jury to disregard any such suspicion. It also raises issues concerning the circumstances in which it is proper for the defence to assert that an accused has a defence of consent, and for the judge to direct the jury in similar terms, where no such defence has emerged in the evidence.
[3] The rape of the complainer was alleged to have occurred in the appellant's flat in the early hours of 22 July 2015. On 23 July 2015, the complainer reported the rape to the police. Blood and urine samples were taken from her on the following day at about 6.00 pm. Subsequent examination of the urine sample revealed the presence of a psychoactive substance, commonly known as ‘Ivory Wave’. The forensic report stated that this indicated that the drug had been ingested and that it might have been administered by dissolving it in water. Although little was known about the combined effects of Ivory Wave and alcohol, it was possible that the sedative powers of alcohol could have overcome the stimulant properties of the drug, or that the drug might have increased the intoxicating effect of the alcohol. At precognition, the complainer maintained that she had never taken recreational drugs. Her partner (CK), stated that there had been an opportunity for the appellant to have ‘spiked’ the complainer's drink, if he had wanted to do so, in the course of the evening.
[4] The respondent decided to libel that the appellant had administered the drug to the complainer in order to engage in sexual activity with her because:
‘[T]here was a reasonable apprehension, based on the combined evidence of the complainer and [CK] at precognition, that their evidence would tend to show that the appellant was the person who had administered the Ivory Wave to the complainer. … [T]he appellant was the only other person buying them drinks … and therefore it was an inference that could be drawn that the appellant was the only person who could have administered it to the complainer if she had not voluntarily ingested it and [CK] had not given it to her. … Fair notice required that this reasonably anticipated evidence be addressed by inclusion of the section 11 libel.’
It was accepted by the respondent that this may have been an ‘overly cautious approach’.
[5] At no stage does there appear to have been any information about the length of time which the drug might have been in the complainer's system or even whether its presence was consistent with ingestion at the relevant time (ie on the evening of 21 July or the morning of 22 July).
[6] It was not disputed that, on the evening of 21 July 2015, the complainer and CK had gone out for dinner in the west end of Glasgow with the appellant. The appellant was a close and long-standing friend of CK and the complainer had known him for about 18 months. All three were drinking throughout the evening, which...
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