Maqsood v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice-General (Carloway),Lord Menzies,Lord Turnbull |
| Judgment Date | 28 November 2018 |
| Neutral Citation | [2018] HCJAC 74 |
| Docket Number | No 6 |
| Court | High Court of Justiciary |
| Date | 28 November 2018 |
[2018] HCJAC 74
Lord Justice-General (Carloway), Lord Menzies and Lord Turnbull
Graham v HM Advocate [2017] HCJAC 71; 2017 SCCR 497; 2017 SCL 963; 2017 GWD 30–479
Wilkinson v HM Advocate [2018] HCJAC 39; 2018 SCCR 248; 2018 GWD 25–320
Winton v HM Advocate [2016] HCJAC 19; 2016 SLT 33; 2017 SCCR 320; 2016 SCL 406
Justiciary — Evidence — Sufficiency — Corroboration — Rape — Evidence that complainer intoxicated with alcohol and incapable of giving consent — Whether absence of reasonable belief required to be proved by corroborated evidence — Sexual Offences Scotland Act 2009 (asp 9), sec 1
Justiciary — Procedure — Charge to jury — Rape — Evidence that complainer intoxicated with alcohol and incapable of giving consent — Whether specific direction to jury on reasonable belief necessary — Sexual Offences (Scotland) Act (asp 9), sec 1
Mohammed Maqsood was indicted at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate, at the High Court of Justiciary in Glasgow for trial on a charge contrary to sec 1 of the Sexual Offences (Scotland) Act 2009. On 7 November 2017, he was convicted of the charge after trial and, on 1 December 2017, was sentenced to six years' imprisonment, with an extended sentence of two years. He appealed against his 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, inter alia, “(1) If a person (‘A’) with A's penis– (a) without another person (‘B’) consenting, and (b) without any reasonable belief that B consents, penetrates to any extent … the vagina, anus or mouth of B then A commits an offence, to be known as the offence of rape.”
The appellant was indicted on a charge of rape in contravention of sec 1 of the 2009 Act. The Crown led evidence that, at the time of intercourse, the complainer had been incapable of giving or withholding consent by reason of alcohol intoxication. The appellant gave a contrary account that the sexual conduct had been initiated by the complainer and had occurred with her consent. The trial judge directed the jury that penetration, the complainer's absence of consent to intercourse and the appellant's absence of reasonable belief of consent all required to be proved by corroborated evidence. The appellant was convicted. He appealed.
The appellant argued that the trial judge had erred in her directions to the jury on the use that could be made of evidence of the distress of the complainer and that a full bench should be convened to review in relation to the question of whether corroboration of lack of reasonable belief on the part of an accused person was necessary.
The Crown submitted that the evidence of the complainer's intoxication led to an inference that the appellant lacked a reasonable belief of consent and that the trial judge's charge had covered all the necessary elements.
Held that: (1) whether an accused had a reasonable belief of consent was an inference to be drawn from proven fact, his mental state did not require to be proved by corroborated evidence (para 16); (2) while a judge ought to direct a jury that the definition of rape included an accused lacking a reasonable belief, no further direction was required unless the issue was live (this would not normally arise where an accused claimed the complainer's consent was clear) (paras 16, 17); (3) only intentional penetration and lack of consent required to be proved by corroborated evidence (para 18); (4) where the Crown contended that the complainer was incapable of consent due to intoxication, corroborated evidence of her incapacitated state was required and sufficient to establish a lack of consent (paras 19, 20); and appeal refused.
Graham v HM Advocate 2017 SCCR 497 explained.
The cause called before the High Court of Justiciary, comprising the Lord Justice-General (Carloway), Lord Menzies and Lord Turnbull, for a hearing, on 28 November 2018.
Eo die, the court refused the appeal for the reasons set forth in the opinion of the Court which was subsequently delivered by the Lord Justice-General (Carloway)—
Opinion of the Court—
[1] The redefinition of rape in sec 1 of the Sexual Offences (Scotland) Act 2009 (asp 9) (‘the 2009 Act’) continues to pose problems for trial courts. They continue to wrestle with appropriate directions to a jury on the evidence required to demonstrate the absence of a reasonable belief that a complainer was consenting to the sexual acts libelled (sec 1(1)(b)). Despite several attempts, the appellate court has not been entirely successful in solving these problems. This case deals specifically with the evidential requirements where it is maintained that the complainer is incapable of consent because of the effect of alcohol (sec 13(1), (2)(a)).
[2] On 7 November 2017, at the High Court in Glasgow, the appellant was convicted of a charge which libelled that:
‘[O]n 5 December 2016 in a motor vehicle … at a parking area at … Thornliebank … you …...
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