Appeal Against Conviction By Stewart Winton Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lady Dorrian,Lady Clark Of Calton,Lord Malcolm |
| Neutral Citation | [2016] HCJAC 19 |
| Published date | 25 February 2016 |
| Year | 2016 |
| Date | 25 February 2016 |
| Court | High Court of Justiciary |
| Docket Number | HCA/2015 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2016] HCJAC 19
HCA/2015/001960/XC
Lady Dorrian
Lady Clark of Calton
Lord Malcolm
OPINION OF THE COURT
delivered by LADY DORRIAN
in
APPEAL AGAINST CONVICTION
by
STEWART WINTON
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant: Kennedy, Advocate; Capital Defence Lawyers, Edinburgh for E Thornton & Co, Oban
Respondent: McSporran, AD Sol Adv; Crown Agent
25 February 2016
[1] The appellant was convicted of a charge of rape in terms of section 1 of the Sexual Offences (Scotland) Act 2009 and sentenced to 4 years 6 months’ imprisonment. The charge alleged that the complainer was someone who was incapable, as a result of mental disorder, of consenting to the conduct narrated in the charge, all in terms of section 17(2) of the Act. Medical and other evidence led in support of this allegation was not challenged at trial, and the fact of penetration was not disputed. The position of the defence was that the accused reasonably believed that the complainer had in fact consented. The Crown’s primary position was that the jury should find that the complainer was incapable of consenting, but in the alternative, if not satisfied on that issue, they could in any event be satisfied on the evidence that she did not in fact consent, and convict accordingly. It should be noted that although the trial judge gave the jury the option to delete the reference to section 17, they did not do so and must be taken to have concluded that the complainer was in fact incapable of giving consent within the meaning of the Act.
[2] Section 17 provides:
“(1) This section applies in relation to sections 1 to 9.
(2) A mentally disordered person is incapable of consenting to conduct where, by reason of mental disorder, the person is unable to do one or more of the following—
(a) understand what the conduct is,
(b) form a decision as to whether to engage in the conduct (or as to whether the conduct should take place),
(c) communicate any such decision.
(3) In this Act, “mental disorder”has the same meaning as in section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) (and related expressions are to be construed accordingly).”
Elaborating on the defence position that the Crown had not excluded the appellant as having a reasonable belief in consent, defence counsel suggested in his speech that in a case such as this the Crown would also require to exclude that the appellant had an honest belief that the complainer was capable of consenting. The trial judge, surprised by this approach, directed the jury that this was incorrect. She directed them that the third element which the Crown required to establish was:
“..that there was no reasonable belief on the part of the accused that she was consenting and, in this instance, incapable of consent.”
As the trial judge elaborated:
“..it’s only if his belief that she consented or was capable of consent was a reasonable one where his actions wouldn’t amount to rape. So, please note that having an honest belief that the person concerned was capable of consent is not enough, it must be held on reasonable grounds…………you must be satisfied that the crown have shown that the accused did not have a reasonable belief, and that is to say it must be a belief that is held on reasonable grounds.”
The trial judge then directed the jury on the factors which may be relevant to these issues.
Submissions for the appellant
[3] Counsel for the appellant submitted that the trial judge’s direction as to the third element of the offence was a misdirection, and that although the trial judge correctly directed the jury that the appellant’s belief in consent required to be reasonable, so far as his belief that the complainer had the capacity to consent, the law only required that the belief be honest. No authority was advanced for the proposition that where an individual was incapable of consent, the Crown required to exclude that the accused had an honest belief that she was so capable, as well as excluding a reasonable belief that she did in fact consent. It was argued that the terms of section 17 left the question open. Where an individual without capacity nevertheless appeared to be consenting, the Crown would require to exclude that the accused had an honest belief that she had the capacity to do so. In such cases there was a two‑stage test: belief as to consent; and belief as to capacity. The former required to be reasonable, the latter did not. The Crown required to exclude both a reasonable belief in consent, and an honest, if unreasonable, belief in capacity to consent. A distinction required to be drawn between, for example, section 14, which provided that a person who was asleep or unconscious was incapable of consenting to any conduct, and section 17 incapacity. The former condition would be clear and obvious where the latter need not be. It was thus necessary to import the concept of an honest, although possibly unreasonable, belief in capacity. This argument was not excluded by the terms of section 17, which did not specify the nature of any defence available. This was to be contrasted with the position under section 30 of the Sexual Offences Act 2003, where the corresponding legislation provided the mens rea of the offence to be that an accused knew or could reasonably be expected to know that a complainer had a mental disorder and that because of it, or an associated reason, was likely to be unable to refuse. The previous Scottish legislation in relation to sexual activity with a mentally disordered individual who was incapable of consent (Section 311 of the Mental Health (Care and Treatment) (Scotland) Act 2003) provided that it was a defence that the person charged did not know and could not reasonably have been expected to know that the other person had a mental disorder. It was problematic that section 17 was silent as to the question of reasonable belief, but in the absence of specific provision, all that required to be excluded was an honest, if unreasonable, belief in capacity.
Submissions for the Crown
[4] The Advocate Depute submitted that no two‑stage test arose. The appellant’s argument flew in the face of the statutory regime and it was of no moment that legislation in another jurisdiction, or legislation which had been repealed in this jurisdiction, were in different terms. The Act specified in section 1 what the Crown required to prove on a charge of rape. When section 17 applied, the complainer was deemed incapable of consent, and the question for the jury was thus whittled down to whether the Crown could exclude a reasonable belief as to consent. There was no discrete requirement to exclude a belief in capacity. The trial judge had not misdirected the jury. However, if it could be said that there had been a misdirection, it was one favourable to the accused since it required the Crown to go the extra step of excluding a reasonable belief in capacity, which was not required by the Act.
Analysis and decision
[5] As the trial judge noted, section 1 of the 2009 Act provides that there are three elements to a charge of rape:
(1) If a person (“A”), with A's penis—
(a) without another person (“B”) consenting, and
(b) without any reasonable belief that B...
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