Appeal Against Conviction By Rcb Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Bracadale,Lady Clark Of Calton,Lord Justice Clerk |
| Neutral Citation | [2016] HCJAC 63 |
| Published date | 22 July 2016 |
| Court | High Court of Justiciary |
| Docket Number | HCA/2015 |
| Date | 22 July 2016 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2016] HCJAC 63
HCA/2015/3572/XC
Lord Justice Clerk
Lord Bracadale
Lady Clark of Calton
OPINION OF THE COURT
delivered by LADY DORRIAN, the LORD JUSTICE CLERK
in
APPEAL AGAINST CONVICTION
by
RCB
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant: Alonzi; Faculty Services Ltd for Douglas Wright, Solicitors, Saltcoats
Respondent: I McSporran, Solicitor Advocate, AD; Crown Agent
22 July 2016
[1] In December 2015 at the High Court at Glasgow, the appellant went to trial on an indictment containing the following charge:
“(002) on 9 July 2014 at Victoria House, Boyle Street, Irvine you RCB did sexually assault CD, born 19 September 1986, formerly residing at [address] now deceased, and whilst she was intoxicated, under the influence of drugs and incapable of giving or withholding consent, did remove her lower clothing and underwear, expose her private parts, expose her breasts, write on her body with eye liner, handle her body, lie on top of her, penetrate her vagina with his fingers and penetrate her vagina with your penis and you did thus rape her: CONTRARY to Sections 1 and 3 of the Sexual Offences (Scotland) Act 2009”.
At the close of the crown case the Advocate Depute moved to amend the charge to delete the words “penetrate her vagina with his fingers” and by adding the word “attempt” before the words “to penetrate” and “rape” in the remainder of the charge. The result was a charge in the following terms:
“(002) on 9 July 2014 at Victoria House, Boyle Street, Irvine you RCB did sexually assault CD, born 19 September 1986, formerly residing at [address] now deceased, and whilst she was intoxicated, under the influence of drugs and incapable of giving or withholding consent, did remove her lower clothing and underwear, expose her private parts, expose her breasts, write on her body with eye liner, handle her body, lie on top of her, and attempt to penetrate her vagina with your penis and you did thus attempt to rape her: CONTRARY to Sections 1 and 3 of the Sexual Offences (Scotland) Act 2009”.
[2] The amendments were opposed by the defence to the extent that reference to section 1 of the 2009 Act remained in the amended charge. It was submitted that there could be no attempt to rape contrary to that section. The trial judge repelled the defence objection, and this appeal relates to that decision. It is not suggested that there was insufficient evidence to justify a conviction of attempted rape, rather the argument is that there can be no attempted rape under section 1 of the 2009 Act.
[3] In repelling the defence submission, the Trial Judge observed that it was competent for a jury to convict an accused of any indictable offence. Section 294 of the Criminal Procedure (Scotland) Act 1995 provides:
“(1) Attempt to commit any indictable crime is itself an indictable crime.”
[4] Although it was true that attempted penetration could qualify as a section 3 offence in itself, it was a non sequitur to suggest that it was not also an attempt under section 1.
Submissions
[5] The submission made to us reflected that made to the Trial Judge. The amendments to the narrative of the charge ought also to have involved deletion of the reference to section 1 of the Sexual Offences (Scotland) Act 2009. Actual penetration was an essential element for any charge under that section, and therefore it should only have been open to the jury to convict the appellant of attempting to commit a section 1 offence. The terms of section 1 of the 2009 Act did not include attempted rape, and consequently a conviction under that section was incompetent.
[6] Section 294 of the 1995 Act provided that an attempt to commit an indictable crime was itself an indictable crime. It did not provide that an attempted crime was the same as a completed crime. Esto any reference to section 1 in such a charge was necessary, the appropriate form of words would be “… and you did thus attempt to rape her in contravention of Section 1 of the aftermentioned Act: CONTRARY to Section 3 of the Sexual Offences (Scotland) Act 2009”.
[7] The Advocate Depute submitted that rape and attempted rape were distinct and separate offences from other sexual assaults. They had a separate sentencing regime (HM Advocate v SSK 2016 SCCR 74). Sections 1 and 3 of the 2009 Act both carried maximum sentences of life imprisonment if prosecuted on indictment (2009 Act, sec. 48 and sch. 2). Section 1 could only be prosecuted on indictment, whereas section 3 could be prosecuted summarily. The crime of rape contrary to section 1 was a plea of the Crown and could only be prosecuted in the High Court of Justiciary. It would be contrary to the intention of the legislature that a crime as serious as attempted rape be recorded only as a sexual assault, contrary to sec. 3. The legislative intention had been to provide for a statutory definition of rape with an expanded definition.
[8] Paragraph 10(i) of Schedule 3 to the 1995 Act provided that on indictment or, as the case may be, on complaint, which charged a completed offence, an accused might be lawfully convicted of an attempt to commit the offence. Paragraph 14(b) provided that where the facts provided under the indictment or the complaint did not amount to a contravention of the enactment [under which it was libelled], it was lawful to convict of the common law offence. Section 294(1) of the Act further provided that an attempt to commit any indictable crime was itself an indictable crime.
[9] Section 50 and schedule 3 of the 2009 Act listed alternative verdicts for offences under the 2009 Act. These did not include attempts to commit any of the substantive offences there referred to, including rape or sexual assault, whether by penetration or otherwise. It would be unnecessary to do so standing the terms of section 294 and schedule 3 to the 1995 Act.
[10] The charge had been appropriately libelled, save for the inclusion of a reference to section 3 of the 2009 Act which was unnecessary.
Analysis
[11] We have come to the conclusion that the Trial Judge was correct to repel the submission that the reference to section 1 should be deleted from the charge. Section 294 applies equally to statutory offences as to common law ones. It is competent for a jury to return a verdict of an “attempt” to commit any indictable offence, which would include an offence under section 1 of the 2009 Act. The fact that the completed offence under section 1 requires penetration does not prevent the libelling and proving of...
To continue reading
Request your trial