Blyth v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 26 August 2005 |
| Neutral Citation | [2005] HCJAC 110 |
| Docket Number | No 13 |
| Date | 26 August 2005 |
| Court | High Court of Justiciary |
Appeal Court, High Court of Justiciary
Lord Justice-General (Cullen of Whitekirk), Lord Johnston, Lord McEwan
Justiciary - Crime - Rape - Special defence of consent - Judge's charge - Whether appropriate to refer to the two crimes of assault and rape - Whether issue of consent should have been raised in respect of each - Whether a misdirection - Whether a miscarriage of justice
Justiciary - Crime - Rape - Procedure - Solemn procedure - Judge's charge - Honest belief - Mens rea - Appellant believing complainer was consenting to sexual intercourse when she was not - Whether judge gave inadequate directions on issue of honest belief - Whether misdirection - Whether miscarriage of justice
Justiciary - Crime - Rape - Procedure - Solemn procedure - Judge's charge - Honest belief - Mens rea - Appellant believing complainer was consenting to sexual intercourse when she was not - Judge charging jury that belief must be actually and 'reasonably' held - Whether misdirection - Whether miscarriage of justice
Justiciary - Crime - Rape - Procedure - Solemn procedure - Honest belief - Distress - Mens rea - Appellant believing complainer was consenting to sexual intercourse when she was not - Whether evidence of complainer's distress sufficient to infer mens rea on part of appellant
Justiciary - Crime - Rape - Procedure - Solemn procedure - Second charge to which appellant pled guilty - Jury hearing evidence of second charge - Judge's charge - Whether appropriate for judge to direct jury to consider evidence against appellant on the second charge - Whether a misdirection - Whether a miscarriage of justice
The appellant faced trial on a charge of rape. He had pled guilty to a second charge of breach of the peace. The Crown sought to prove that the appellant had sexual intercourse with the complainer who did not consent, by means of force. The complainer gave evidence to that effect and there was independent evidence as to her injuries and distress. The appellant had lodged a special defence of consent and gave evidence on his own behalf that he did not use force but that the complainer had consented throughout and indeed actively encouraged sexual activity between them. It was not in dispute that there was a sufficiency of evidence that entitled the jury to convict. The appellant was found guilty.
The appellant appealed against his conviction arguing that (1) the trial judge had misdirected himself in a number of respects. In referring to the two crimes of assault and rape within one charge the appellant argued that the trial judge had deconstructed the charge. The jury had no basis upon which to consider the special defence of consent since the trial judge had not mentioned it in connection to the assault; (2) the trial judge had failed to give adequate directions to the jury in regard to honest belief on the part of the appellant. In particular the trial judge failed to direct the jury that even if they held that the complainer did not consent to sexual intercourse, they must nevertheless consider, on the evidence, whether or not the appellant had honestly believed however mistakenly that she did. The appellant argued that the trial judge had erred in directing the jury that the belief also required to be reasonable; (3) evidence of distress was not evidence of his mens rea and that rape could not have been said to have been committed until mens rea had been proved by corroborated evidence to the satisfaction of the jury; and (4) the appellant questioned the relevance of the breach of the peace charge. In the course of the Crown case the jury had heard evidence in support of that charge to which the appellant had pled guilty. The trial judge directed the jury that although the Crown had accepted the appellant's plea of guilty to the second charge, the evidence relating to that charge was still before them for their consideration. The jury were directed that they were entitled to consider any evidence against the appellant on that charge if they felt it to be relevant to the question of his guilt on the first charge.
Held that: (1) it was commonplace for a trial judge to give directions in regard to the different types of criminal conduct libelled within a charge as forming part of a single incident (para 8); (2) in the present case the jury had been left in no doubt that the defence case was that the complainer had consented throughout the incident (para 8); (3) while it was correct as a proposition of law that the crime of rape was not committed if the man believed that the woman was consenting, a direction to that effect where the Crown case was that sexual intercourse was obtained by force was unnecessary (para10); (4) a direction about honest belief in rape cases should only be given when an issue about honest belief had been raised in the evidence and the jury should not be invited to speculate on these matters if there had been no basis for this in the evidence led at the trial (para 10); (5) the trial judge was clearly in error when he directed the jury that the crime of rape was not committed if the man actually and 'reasonably' believed that the woman was consenting (para 10); (6) the direction did not make any material difference since on the appellant's account there was nothing to raise any separate question as to whether his belief had been reasonable (para 10); (7) the jury had been entitled to treat independent evidence of the complainer's distress along with that of her injuries as supporting or confirming her evidence that she had not consented to sexual intercourse, but that it had been obtained by means of force (para 11); (8) this provided corroboration not only for the complainer's evidence but also by inevitable inference for the necessarymens rea on the part of...
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