LW v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice General (Carloway),Lord Malcolm,Lord Turnbull |
| Judgment Date | 06 November 2020 |
| Neutral Citation | [2020] HCJAC 50 |
| Court | High Court of Justiciary |
| Docket Number | No 13 |
[2020] HCJAC 50
Lord Justice General (Carloway), Lord Malcolm and Lord Turnbull
Fox v HM Advocate 1998 JC 94; 1998 SLT 335; 1998 SCCR 115
GW v HM Advocate [2019] HCJAC 23; 2019 JC 109; 2019 SLT 643; 2019 SCCR 175
Jamal v HM Advocate [2019] HCJAC 22; 2019 JC 119; 2019 SLT 479; 2019 SCCR 135
Mitchell v HM Advocate [2008] HCJAC 28; 2008 SCCR 469; 2008 GWD 18-315
RWP v HM Advocate [2005] HCJAC 115; 2005 SCCR 764
R v C sub nom R v Cooper [2009] UKHL 42; [2009] 1 WLR 1786; [2009] 4 All ER 1033; [2010] 1 Cr App R 7; [2009] MHLR 189; [2010] Crim LR 75
Smith v Lees 1997 JC 73; 1997 SLT 690; 1997 SCCR 139
Spendiff v HM Advocate [2005] HCJAC 68; 2005 1 JC 338; 2005 SCCR 522
Wilson v HM Advocate [2017] HCJAC 3; 2017 JC 135; 2017 SCL 237; 2017 GWD 3-32
Alison, AJ, Principles and Practice of the Criminal Law of Scotland (Blackwood, Edinburgh, 1832), i, 562
Green, SP, ‘How to Criminalize Incest’ (Elsevier/Social Science Research Network, Rochester, New York, 11 May 2017) (Online: https://ssrn.com/abstract=2967280) (5 December 2020))
Hume, D, Commentaries on the Law of Scotland respecting Crimes (4th Bell ed, Bell and Bradfute, Edinburgh, 1844), i, 446
Scottish Law Commission, The Law of Incest in Scotland (Scot Law Com Memorandum no 44, April 1980), para 1.1 (Online: https://www.scotlawcom.gov.uk/files/4713/1463/0981/cm44.pdf) (5 December 2020))
Westermarck, EA, The History of Human Marriage (1st ed, MacMillan, London, 1891)
Justiciary — Evidence — Sufficiency — Corroboration — Circumstantial evidence — Complainer giving evidence of her repeated rape by the appellant, her stepfather — Circumstantial evidence about the complainer living in family with her mother and the appellant — Whether sufficiency of evidence for lack of consent
LW was charged on an indictment at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate, with, inter alia, the common law rape of, and a statutory offence of having had sexual intercourse with, his stepdaughter. The appellant pled not guilty and the cause came to trial before Lord Armstrong and a jury in the High Court of Justiciary at Glasgow, on 29 October 2019. In the course of the trial, in respect of the charge of rape, the appellant made a submission of no case to answer, which was repelled. On 31 October 2019, the appellant was convicted of the charges of rape and incest. The appellant appealed to their Lordships in the High Court of Justiciary.
Section 2B of the Sexual Offences (Scotland) Act 1976 (cap 67) provided (prior to its repeal in August 1997), inter alia, that a stepparent committed an offence if they had sexual intercourse with their stepchild if the stepchild was under the age of 21 or had at any time before attaining the age of 18 lived in the same household and been treated as a child of the family of the stepparent.
The appellant was indicted on, inter alia, charges of common law rape of his stepdaughter and of a statutory offence of having had sexual intercourse with his stepdaughter. There was a 12-year age gap between them. The complainer stated that the rapes began when she was 16 years old. The appellant had been in a continuing relationship with the complainer's mother. There had been independent evidence that the complainer lived in family with the appellant and that she referred to the appellant as “dad”. The complainer's son was fathered by the appellant. In the course of the trial, the appellant made a submission of no case to answer in respect of the rape, which was repelled. The appellant was convicted of both the rape and statutory offence of having had sexual intercourse with his stepdaughter. He appealed.
The appellant argued that the trial judge had erred in repelling the submission of no case to answer in respect of the charge of rape as there had been no corroboration of lack of consent...
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