C W Appellant Against HM Advocate Respondent
| Jurisdiction | Scotland |
| Judge | Lady Dorrian,Lord Bracadale,Lord Malcolm |
| Judgment Date | 06 May 2016 |
| Neutral Citation | [2016] HCJAC 44,2016 SCCR 285 |
| Docket Number | No 21 |
| Court | High Court of Justiciary |
| Date | 06 May 2016 |
[2016] HCJAC 44
Lady Dorrian, Lord Bracadale and Lord Malcolm
Justiciary — Crime — Sexual offences — Whether lack of consent to be implied under statutory charge for purposes of Moorov v HM Advocate— Sexual Offences (Scotland) Act 2009 (asp 9), sec 42
Section 42 of the Sexual Offences (Scotland) Act 2009 (asp 9) (“the 2009 Act”) provides that if a person A who has attained the age of 18 years intentionally engages in a sexual activity with or directed towards another person B who is under 18 and is in a position of trust in relation to B then A commits the offence of sexual abuse of trust.
The appellant was charged with, inter alia, the sexual offences of indecent assault at common law, sexual assault contrary to sec 3 of the 2009 Act and engaging in sexual activity with a person under 18 years of age towards whom he was in a position of trust contrary to sec 42 of the Act. Following trial, at which his plea of guilty to the charge under sec 42 was eventually accepted after the evidence in relation to it had been led, he was convicted of the first mentioned charges. The appellant appealed to the High Court on a number of grounds, including whether the evidence in respect of the sec 42 charge was capable of corroborating the evidence of the complainer on the first mentioned charges.
Held that: (1) the sheriff erred in concluding that lack of consent was to be implied in a charge under sec 42 of the 2009 Act, the focus of that section being the factual conditions required for proof of the offence, namely the age of the complainer and the position of trust of the accused, consent or the lack of it being immaterial, and he had misdirected the jury by telling them that they could find corroboration for the complainer's consent on the other charges in the evidence of the second complainer in relation to the sec 42 charge (Lady Dorrian, paras 26, 32, Lord Bracadale, para 38, Lord Malcolm, para 54); (2) the misdirection of the jury by the sheriff on the role of consent was a material one, in the context of a case in which consensual behaviour had occurred, and the jury were effectively given the impression that an element of evidence on which it was critical for the complainer to be believed had been corroborated leading to a less critical examination of his evidence that he had not consented, or that the appellant had no reasonable belief in consent, this being a central issue in dispute in the trial, thus constituting a material misdirection and miscarriage of justice (Lady Dorrian, para 37, Lord Bracadale, para 38, Lord Malcolm, para 55); and appeal allowed.
CW was charged on indictment on charges relating to common law and statutory sexual offences. He pled not guilty and the cause came to trial in the sheriff court before a sheriff and jury. The appellant pled guilty to charge 5 on the indictment and was convicted by the jury of charges 1 and 2 thereof. The appellant subsequently appealed to the High Court of Justiciary against conviction.
ANM v HM Advocate [2010] HCJAC 112; 2011 SCCR 47; 2011 SCL 271; 2010 GWD 37–757
AS v HM Advocate [2014] HCJAC 135; 2015 SCCR 62; 2015 SCL 245; 2015 GWD 1–9
B v HM Advocate sub nom CAB v HM Advocate [2008] HCJAC 73; 2009 JC 88; 2009 SLT 151; 2009 SCCR 106; 2009 SCL 266
KH v HM Advocate [2015] HCJAC 42; 2015 SLT 380; 2015 SCCR 242; 2015 SCL 674
MR v HM Advocate [2013] HCJAC 8; 2013 JC 212; 2013 SCCR 190; 2013 SCL 338; 2013 GWD 4–115
McA v HM Advocate [2014] HCJAC 41; 2015 JC 27
McMahon v HM Advocate 1996 SLT 1139
Moorov v HM AdvocateSC 1930 JC 68; 1930 SLT 596
Ogg v HM AdvocateSC 1938 JC 152
PM v JessopUNK 1989 SCCR 324
Pringle v ServiceUNK 2011 SCCR 97
Tait v HM Advocate [2015] HCJAC 58; 2015 SLT 495; 2015 SCCR 308; 2015 SCL 788
Dickson, WG, A Treatise on the Law of Evidence in Scotland (3rd Hamilton Grierson ed, T & T Clark, Edinburgh, 1887)
The appeal was heard before the High Court of Justiciary, comprising Lady Dorrian, Lord Bracadale and Lord Malcolm.
At advising, on 6 May 2016—
Lady Dorrian— [1] The appellant was convicted after trial of the following charges:
“(001) on various occasions between 3 August 2006 and 30 November 2010, both dates inclusive at [an address in Paisley] and elsewhere you CW did indecently assault [JW] c/o Police Service of Scotland, Paisley and did while he lay asleep and intoxicated place your hand under his bed clothes, touch his leg, remove his underwear, masturbate him and place his penis within your mouth and perform oral sex on him
(002) on various occasions between l December 2010 and 30 April 2012, both dates inclusive at [an address in Paisley] and elsewhere you CW did sexually assault [JW] c/o Police Service of Scotland, Paisley in that you while he lay asleep and intoxicated place your hand under his bed clothes, touch his leg, remove his underwear, masturbate him and place his penis within your mouth and perform oral sex on him;
CONTRARY to Section 3 of the Sexual Offences (Scotland) Act 2009 [(asp 9)]”.
[2] His plea of guilty to another charge was eventually accepted after the evidence in relation to it had been led. That charge alleged that:
“(005) on various occasions between 1 June 2013 and 10 May 2014, both dates inclusive at an address in Paisley and elsewhere you CW, being a person who had attained the age of 18 years and who was in a position of trust towards [DA] born 3 November 1998, c/o Police Service of Scotland, Paisley, whilst said [DA] was a pupil at [schools in Paisley] and you did look after said [DA] at said schools, and you did engage in a sexual activity with or directed towards said [DA], a person who was under 18 years in that you did meet him outwith the school, take him for drives in your motor vehicle, tell him about your own sexual activities, supply him with alcohol and while intoxicated handle his penis over his clothing, handle his naked penis, masturbate him, place his penis in your mouth, masturbate in his presence, incite him to masturbate in your presence until ejaculation and cause him to ejaculate in your mouth;
CONTRARY to Section 42 of the Sexual Offences (Scotland) Act 2009”.
[3] The first two grounds of appeal raise the question whether the evidence in respect of charge 5 was capable of corroborating the evidence of the complainer on charges 1 and 2 that he did not consent to the conduct alleged. Ground 3 raises a similar point in relation to proof of a lack of reasonable belief in consent in relation to charge 2. The final ground is that the sheriff erred in failing to direct the jury whether there was corroboration of a lack of reasonable belief in relation to charge 2, and where that might be found.
[4] The statutory provisions, so far as relevant, are as follows:
“3.–(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–
(a) penetrates sexually, by any means and to any extent, either intending to do so or reckless as to whether there is penetration, the vagina, anus or mouth of B,
(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,
(d) intentionally or recklessly ejaculates semen onto B,
(e) intentionally or recklessly emits urine or saliva onto B sexually. …
14.–(1) This section applies in relation to sections 1 to 9.
(2) A person is incapable, while asleep or unconscious, of consenting to any conduct. …
42. If a person (‘A’) who has attained the age of 18 years–
(a) intentionally engages in a sexual activity with or directed towards another person (‘B’) who is under 18, and
(b) is in a position of trust in relation to B,
then A commits an offence, to be known as the offence of sexual abuse of trust. …
45.–(1) It is a defence to a charge in proceedings under section 42 that A reasonably believed–
(a) that B had attained the age of 18, or
(b) that B was not a person in relation to whom A was in a position of trust.
(2) It is a defence to a charge in proceedings under section 42–
(a) that B was A's spouse or civil partner, or
(b) that immediately before the position of trust came into being, a sexual relationship existed between A and B.
(3) Subsection (2) does not apply if A was in a position of trust in relation to B by virtue of section 43(6).”
[5] The complainer in charges 1 and 2 had been in care and was introduced to the appellant through the social work department when he was aged 16 or 17. The appellant was introduced to him as a “befriender”. The evidence of the complainer on charges 1 and 2 on the question of consent was that when he was sober he had on a number of occasions consented to conduct of this kind between himself and the accused. However, he gave evidence that the incidents referred to in the charges had occurred when he was asleep or drunk and that on these occasions he had not consented. On such occasions he told the appellant to “fuck off”, at which point the appellant would stop what he was doing. The complainer had already laid down ground rules with the appellant that no sexual conduct was to take place when he was intoxicated. He had told the appellant not to do these things to him and to stop touching him or sucking his penis when he was not consenting. He continued to see the appellant socially up to and including 2014 and there had been consensual sexual conduct between them in 2014. On occasions the appellant paid him £20, which was an agreed “fee” between them. In cross-examination he denied that all sexual contact between them had been consensual.
[6] The age of the...
To continue reading
Request your trial
-
Duthie v HM Advocate
...Reference (No 1 of 2001) 2002 SLT 466; 2002 SCCR 435 CS v HM Advocate [2018] HCJAC 54; 2018 SCCR 329; 2018 GWD 33-420 CW v HM Advocate [2016] HCJAC 44; 2016 JC 148; 2016 SLT 709; 2016 SCCR 285; 2016 SCL 535 Dodds v HM Advocate 2003 JC 8; 2002 SLT 1058; 2002 SCCR 838 Donegan v HM Advocate [2......
-
Appeal Against Conviction And Sentence By Rb Against Her Majesty's Advocate
...they were component parts of a course of conduct persistently pursued by the appellant. (MR v HM Advocate 2013 JC 212; CW v HM Advocate 2016 SCCR 285; JL v HM Advocate [2016] HCJAC 61; AK v HM Advocate 2012 JC 74; AS v HM Advocate 2015 SCCR 62). Here, the similarities were not extraordinary......
-
Notes Of Appeal Against Conviction By (first) James Adam And (second) Brian Daisley
...sentence or a generational gap (see RBA v HM Advocate [2009] HCJAC 56 at paras [36] and Appendix at para [43] citing CW v HM Advocate 2016 SCCR 285 at para [53]; HM Advocate v ER 2016 SCCR 490 at para [13]). Mr Adam had been of previous good character. LC and AH were not family members. The......
-
RBA v HM Advocate
...2009 JC 88; 2009 SLT 151; 2009 SCCR 106; 2009 SCL 266 BM v HM Advocate [2017] HCJAC 55; 2017 SCL 882; 2017 GWD 23–388 CW v HM Advocate [2016] HCJAC 44; 2016 JC 148; 2016 SLT 709; 2016 SCCR 285; 2016 SCL 535 Donegan v HM Advocate [2019] HCJAC 10; 2019 JC 81; 2019 SCCR 106; 2019 GWD 10–134 Du......