Jamieson v Advocate (HM)
| Jurisdiction | Scotland |
| Judgment Date | 19 January 1994 |
| Docket Number | No. 15. |
| Date | 19 January 1994 |
| Court | High Court of Justiciary |
JC
LJ-G Hope, Lords Allanbridge, Cowie
Crime—Rape—Procedure—Solemn procedure—Judge's charge—Reasonable belief—Pannel believing complainer consenting to sexual intercourse when in fact she was not—Judge charging jury that pannel had to have reasonable grounds for thinking that she was consenting—Whether misdirection—Whether miscarriage of justice
The pannel was tried on a charge of rape. His defence was that he believed that the girl had consented to sexual intercourse with him. The trial judge (Lord Osborne) directed the jury that for such a belief to succeed as a defence, it had to be based upon reasonable grounds even though the belief was, in fact, mistaken. On being convicted, the pannel appealed to the High Court on the ground of misdirection.
Held (1) that as the mens rea of rape included the intention to have intercourse with a woman without her consent, an essential element was the absence of any belief that she was consenting; (2) that a man could not be guilty of rape if he had intercourse with a woman believing that she had consented and that was a matter of fact for the jury to decide upon, if raised in evidence; but (3) that all that was required was that the man had to have genuinely formed that belief, which need not be regarded by the jury as reasonable so long as they were satisfied that the belief was genuinely held by him at the time; and appeal allowed of consent.
Dictum of Lord Justice-General Emslie in Meek v. H.M. AdvocateUNK 1983 S.L.T. 280 at p. 281 applied.
Observed that the jury should also be directed to consider whether there were reasonable grounds for the belief in reaching their decision as to whether in fact the belief was genuinely or honestly held by the pannel at the time.
Brian Jamieson was charged on an indictment at the instance of the Rt. Hon. The Lord Rodger of Earlsferry, Q.C., Her Majesty's Advocate, the libel of which set forth, inter alia, that: "(1) on 28th December 1991 in the grounds of New Pitsligo and St John's School, School Street, New Pitsligo, you Brian Jamieson did assault [J.C.] care of the police office, Peterhead, and did push her against a wall, seize hold of her, pull up her skirt, pull down her tights, handle her private parts, repeatedly force her to the ground, pull down her pants, lie on top of her, place your hand on her neck and compress same, force her legs apart, insert your finger into her private parts and did rape her."
The pannel pled not guilty and the cause came to trial before Lord Osborne and a jury at the High Court in Stonehaven. On being convicted, the pannel was sentenced to a term of imprisonment and appealed to the High Court of Justiciary by way of note of appeal against conviction. The terms of the note of appeal appear sufficiently from the opinion of the court.
In his charge to the jury, Lord Osborne set forth, inter alia,that: "Now, ladies and gentlemen, I would like at this point to tell you about a particular defence that exists where the charge is one of rape and this is of particular importance in the context of this case so I hope you will pay close attention to it. Reasonable belief, and that is to say a belief based on reasonable grounds, on the part of the male to the effect that the woman was a consenting party is a defence even though the belief was, in fact, mistaken."
In his report for their Lordships' consideration, Lord Osborne set forth, inter alia, that: "The appellant went to trial on an indictment, in which he faced a total of seven charges. He was convicted of charges nos. (1), (3), (5), (7) and (8). I understand from my perusal of the appellant's grounds of appeal that the appeal is concerned only with the convictions reached by the jury under charges (1) and (5) of the indictment. I should make it clear that these charges were quite unconnected, so far as their factual circumstances were concerned, except in respect that the appellant was involved in each of them. Charge (1) contained an allegation of assault and rape against [J.C.]. I intend briefly to set out what I conceive to be an uncontroversial account of the factual background to this charge and to explain the nature of the dispute of fact relating to it. The complainer, a 17-year-old schoolgirl, decided along with some friends to go to a dance being held in New Pitsligo on Friday, 27th December 1991. The dance was to take place in the village hall. It started around 9 p.m. and was due to end between midnight and 1 a.m. on the morning of Saturday, 28th December. In the village hall the toilets were situated near the main entrance. When the complainer went there, she met the appellant. She did not know him, but had seen him before. He was on his own at this time. The complainer and the appellant fell into conversation. The appellant asked the complainer if she wanted to go for a walk. She agreed to do so. The appellant and the complainer walked in the direction of a nearby primary school which the appellant had attended. On arrival at the school, the appellant and the complainer entered the precincts of the school, where he told her about some of his...
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