RKS v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk (Dorrian),Lord Menzies,Lord Turnbull |
| Judgment Date | 22 May 2020 |
| Neutral Citation | [2020] HCJAC 19 |
| Docket Number | No 24 |
| Court | High Court of Justiciary |
| Date | 22 May 2020 |
[2020] HCJAC 19
High Court of Justiciary
Lord Justice Clerk (Dorrian), Lord Menzies and Lord Turnbull
Advocate (HM) v Moynihan [2018] HCJAC 43; 2019 SLT 370; 2019 SCCR 61
Advocate's (Lord) Reference (No 1 of 2001) 2002 SLT 466; 2002 SCCR 435
Blyth v HM Advocate [2005] HCJAC 110; 2006 JC 64; 2005 SCCR 710
Doris v HM Advocate 1996 SLT 995; 1996 SCCR 854
Graham v HM Advocate [2017] HCJAC 71; 2017 SCCR 497; 2017 SCL 963; 2017 GWD 30–479
McKearney v HM Advocate 2004 JC 87; 2004 SLT 739; 2004 SCCR 251
Maqsood v HM Advocate [2018] HCJAC 74; 2019 JC 45; 2019 SCCR 59; 2018 GWD 40–490
Spendiff v HM Advocate [2005] HCJAC 68; 2005 1 JC 338; 2005 SCCR 522
Winton v HM Advocate [2016] HCJAC 19; 2016 SLT 393; 2017 SCCR 320; 2016 SCL 406
Justiciary — Procedure — Indictment — Docket procedure — Relevancy — Whether conduct libelled in docket connected with sexual offence charged on indictment — Criminal Procedure (Scotland) Act 1995 (cap 46), sec 288BA
Justiciary — Evidence — Sufficiency — Corroboration — Rape — Evidence of forcible rape — 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 of force — Whether specific direction to jury on reasonable belief necessary — Sexual Offences (Scotland) Act 2009 (asp 9), sec 1
RKS was indicted at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate, for trial at the High Court of Justiciary in Glasgow on, inter alia, a charge contrary to sec 1 of the Sexual Offences (Scotland) Act 2009. On 23 March 2019, he was convicted of the charge after trial. He appealed against his conviction to their Lordships in the High Court of Justiciary.
The Criminal Procedure (Scotland) Act 1995 (cap 46) (‘the 1995 Act’), sec 288BA, provides, inter alia, “(1) An indictment or a complaint may include a docket which specifies any act or omission that is connected with a sexual offence charged in the indictment or complaint. (2) … an act or omission is connected with such an offence charged if it– (a) is specifiable by way of reference to a sexual offence, and (b) relates to– (i) the same event as the offence charged, or (ii) a series of events of which that offence took part … (5) Where … a docket is included in an indictment or complaint, it is to be presumed that– (a) the accused person has been given fair notice of the prosecutor's intention to lead evidence of the act or omission specified in the docket, and (b) evidence of the act or omission is admissible as relevant.”
The Sexual Offences (Scotland) Act 2009 (asp 9) (‘the 2009 Act’), sec 1, 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 assaulting the complainer, his partner, on various occasions between June 2013 and February 2017, and on a charge of rape of the complainer in 2017. The indictment included a docket which set out that, on various occasions between March 2011 and March 2013, the appellant had engaged in sexual activity with the complainer at addresses in England when she had been aged between 14 and 15 years. Without objection, the Crown led evidence from the complainer about the history of her relationship with the appellant, which included evidence about the commencement of their sexual relationship in England when she had been aged 14. The complainer gave evidence of a forcible rape. At the conclusion of the Crown case, the charge of assault was withdrawn. The appellant denied that the sexual relationship had commenced when the complainer had been aged 14 and, in relation to the charge of rape, gave evidence that the sexual conduct had occurred with the complainer's consent. The trial judge directed the jury that they could take into account the information as specified in the docket as a piece of the overall picture which they had to consider in relation to the charge of rape. Further, he directed the jury that the absence of a reasonable belief of consent did not require corroboration. The appellant was convicted and appealed to the High Court of Justiciary.
The appellant argued that the trial judge ought to have directed the jury to disregard the docket evidence on the basis that it was not relevant and could not relate to the charge of rape, which was the sole remaining charge on the indictment. It was further argued that the judge had erred in his direction on the absence of reasonable belief and that the issue of reasonable belief was a live issue in every case in which a contravention of sec 1 of the 2009 Act was libelled.
The Crown submitted that the evidence led in support of the docket was relevant and that it would, therefore, have been wrong for the judge to direct the jury to disregard it, and further, that the direction on reasonable belief had been in accordance with the law.
Held that: (1) for an act or omission to be connected with a sexual offence charged in the indictment, such that a docket may be included, it required to be specifiable by way of reference to an act which could properly be described as a sexual offence, and did not require to be specifiable by reference to the sexual offence charged in the indictment (para 23); (2) while the appellant faced only one charge by the time the trial judge directed the jury, that charge was the only sexual offence which had ever featured on the indictment and, accordingly, the docket could only ever have specified an act which was connected with the events of that charge; in the absence of objection to the inclusion of the docket, sec 288BA(5) of the 1995 Act created a presumption that the evidence to which it referred was relevant to the jury's consideration of the charge of rape and the direction of the trial judge in that regard had been correct (paras 25, 28); (3) since the offence of which the appellant was convicted had been a forcible and violent rape, there was no room for a separate and hypothetical consideration of whether he had nevertheless thought that the complainer was consenting; it was not the case that reasonable belief was a live issue in every prosecution under sec 1 of the 2009 Act and directions on the absence of reasonable belief, and the need to provide corroborated evidence of that absence, would only be appropriate if such an issue were focused in the evidence (paras 29–31); and appeal refused.
Graham v HM Advocate 2017 SCCR 497 and Maqsood v HM Advocate2019 JC 45affirmed.
The cause called before the High Court of Justiciary, comprising the Lord Justice Clerk (Dorrian), Lord Menzies and Lord Turnbull, for a hearing, on 13 May 2020.
At advising, on 22 May 2020, the opinion of the Court was delivered by Lord Turnbull—
Opinion of the Court—
[1] In March 2019 the appellant went to trial at the High Court in Glasgow on an indictment which contained two charges. The first was a charge of assaulting his...
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