APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne Lord Wheatley Lord Mackay of Drumadoon	[2008] HCJAC 77 Appeal No: XC158/07   OPINION OF THE COURT   delivered by LORD WHEATLEY   in   NOTE OF APPEAL AGAINST CONVICTION   By   HER MAJESTY'S ADVOCATE   Appellant:   against   BL   Respondent:   _______

 

 

Appellant: Bain, Q.C., A.D.; Crown Agent

Respondent: Clancy Q.C.; McSparran McCormick, Solicitors, Glasgow

 

 

19 December 2008

 

[1] The respondent originally appeared on an indictment which contained three charges. The third of these charges was in the following terms:

"On various occasions between 2 February 1976 and 1 February 1982, both dates inclusive at (a specified address) you did assault CR, your step-daughter, born 2 February 1964, ... lie on top of her and did rape her:

or alternatively

on various occasions between 2 February 1976 and 1 February 1982 both dates inclusive, at (a specified address) ... you did have incestuous sexual intercourse with CR, your step-daughter, born 2 February 1964 ... Contrary to the Incest Act 1567."

The case called before the judge of first instance at the High Court in Kilmarnock on 28 February 2007 for the purpose of debating an objection to the relevancy of the alternative charge. The Court was advised that the first two charges, and the first alternative of the first charge, were not to proceed and the respondent was acquitted on those charges. The court was also advised that the respondent accepted that an incident of sexual intercourse had occurred between himself and his step-daughter after she had reached the age of 16. At the commencement of the debate, a joint minute was tendered to the Court in terms of which it was agreed:

(1) That Crown witness number 2, EML married DR on 9 September 1961;

(2) That Crown witness number 1, CR, was born 2 February 1964 and was the daughter of EML and the said DR; and

(3) That EML married the panel on 26 June 1970.

[2] It therefore followed that the complainer CR was the legitimate step-daughter of the respondent. Having considered the competing submissions at debate, the presiding judge concluded that the relationship between the respondent and the complainer was not one which was covered by the Incest Act 1567, and that the alternative of charge 3 was accordingly irrelevant. He also indicated that, had it been necessary for him to form a view on a supplementary argument put up by the respondent to the effect that the Incest Act 1567 was incompatible with the Human Rights Act 1998 and Article 8 of the European Convention of Human Rights, he would have agreed with that submission and held for that reason also that the charge should fall. He accordingly acquitted the respondent on what was the only remaining charge of the indictment.

[3] The Crown have now appealed that decision, and in the Note of Appeal tender three substantive grounds. These are:

"(1) The learned judge erred in law in holding that the second alternative charge of incest libelled in charge three was irrelevant on the ground that it was not a crime known to the law of Scotland;

(2) The second alternative charge of incest libelled in charge three was a relevant charge on the ground that it was a crime known to the law of Scotland on the dates libelled;

(3) The complainer on the second alternative charge of incest is a CR. Said complainer is the legitimate daughter of the respondent's wife. On the dates libelled in the charge, the relationship between said complainer and the respondent was a prohibited relationship for the purposes of the Incest Act 1967 ... "

[4] After sundry procedure, the respondent lodged a devolution issue minute and a minute of incompatibility on 1 April 2008. The minute amplified the supplementary submissions put up by the respondent's counsel at the original hearing, namely that the Incest Act 1567 was incompatible with the minuter's Convention rights, particularly those found in Articles 6 and 7. The minute of incompatibility is in almost identical terms to the devolution issue minute, raises the same issues, and does not require separate attention.

[5] The relevant part of the Incest Act 1567 (1 James V1, cap 14) is in these terms:

"... Parliament statutis and ordanis that quhatsumeuer persoun or personis committeris of the said abhominabill cryme of incest that is to say quhatsumeuer persoun or personis thay be that abusis thair body with sic personis in degree as Goddis word hes expreslie forbiddin in ony tyme cuming as is contenit in the xviij Cheptour of Leuiticus salbe puneist ..."

[6] The Act therefore incorporates by reference the prohibited degrees of relationship found in the18th Chapter of Leviticus. In 1567 the version of the Bible in current use was the Geneva edition. For the purpose of the present charge, the relevant reference in the 18^th Chapter in that version of the Bible is verse 17, which provides:

"Thou shalt not discover the shame of ye wife and of her daughter, nether shalt ye take her sonnes daughter, nor her daughters daughter, to uncover her shame: for they are thy kinsfolk, and it were wickednes."

Verse 17 is one of a series of verses which describe the various relationships which constitute the crime of incest. These illustrations are prefaced by verse 6: "None shal come nere to anie of ye kindred of his flesh to uncover her shame: I am the Lord."

[7] It is the Crown's contention in this present appeal that verse 17 of the 18^th Chapter of Leviticus refers to a prohibition against a man having sexual intercourse with his step-daughter, on the ground that such a relationship is incestuous; the respondent submits that that is not a proper reading of what is to be found in verse 17, or alternatively that it is a definition which is insufficiently precise or accessible in terms of the respondent's Convention rights.

[8] On the question of the correct interpretation of what is meant by verse 17 of the 18^th Chapter of Leviticus, the arguments which found favour with the judge of first instance hinged on the terms of verse 6. Verse 6, it was submitted, created a prohibition only against sexual relationships with consanguine or blood relatives. There was nothing to suggest that such a relationship between a step-father and a step-daughter was intended to constitute the crime of incest. As against that, verse 17 was, in the contention of the Crown, a prohibition against relationships between a step-father and his step-daughter; it did not matter that the relationship was one of affinity rather than consanguinity. However, the judge of first instance considered that there was no ascertainable binding authority which could direct him to this latter conclusion. He considered that the Incest Act of 1567 was a penal statute and should be construed strictly. He found the case of HMA v MR 1914 J.C. 108, to which he had been referred, which held that sexual intercourse between a man and his illegitimate step-daughter was not a crime known to the law of Scotland, offered support for his view. That case followed HMA v Black 1 Adam 312, where an accused charged with incest with his step-daughter pled guilty, but after it was ascertained that the complainer was illegitimate, the Crown withdrew the libel. The judge of first instance thought that it was wrong to discriminate between a legitimate and an illegitimate step daughter, and concluded that an interpretation of a penal statute which meant that relations between a step-father and his legitimate step-daughter were prohibited, while relations between a step-father and his illegitimate step-daughter were not, could not be valid.

[9] In the present appeal, the Advocate depute argued that the Lord Ordinary's opinion of the judge of first instance was based on an erroneous understanding of the relevant authorities and of the text of the Act as illustrated by the 18^th Chapter of Leviticus. He had not considered, nor had he had his attention drawn to, the dicta in Hume on Crimes Vol. 1, p. 441 which clearly imported that what verse 17 meant was that a sexual relationship between a step-father and a step-daughter constituted the crime of incest. Nor had he been referred to HMA v Aikman & Martin 1917 J.C. 8 (a seven Judge case) which suggests that, on a proper interpretation of the Act, the relationship described in the present charge was prohibited. He had instead relied on certain observations made by Lord Milligan in HM Advocate v RM 1969 J.C. 52 (at p. 63) which properly read does not say what he seems to take from it. In this respect the Advocate depute thought it worthwhile to cite in full the passage in Lord Milligan's opinion from which the judge of first instance extracted the dictum on which he relied:

"There is no doubt whatever that, if the child had been the legitimate daughter of the accused's wife, the libel would have been relevant. The position, however, is very different where the child is the illegitimate child of her mother. No case was referred to in which a prosecution had taken place where the person involved had been illegitimate, and all the text-book articles quoted appeared to take the view that, where one of the parties was illegitimate, no question of incest could arise, except possibly in the case of a mother and her illegitimate son. I have for myself considerable difficulty in seeing why intercourse between a man and his wife's legitimate daughter should be a criminal offence, whereas it would not be a criminal offence if the daughter was illegitimate. In a criminal case, however, it is essential that it must be clear beyond a peradventure that the crime libelled is in fact a crime (see Hume on Crimes, Vol. i, p. 447) before the relevancy of an indictment can be sustained ..."

The Advocate depute submitted that it was wrong for the judge of first instance to conclude that the comment by Lord Milligan that he had difficulty in seeing why intercourse between a man and his wife's legitimate daughter should be a criminal offence, whereas it would not be a criminal offence if the daughter was illegitimate, supported the view that the 1567 Act did not apply to a relationship with step-father to step-daughter. Further, he had misdirected himself by identifying verse 6 of Chapter 18 as the source of a fundamental proposition that to constitute the crime of incest everything thereafter described had to be a consanguine relationship unless it was specifically described as being a relationship of affinity. This was contrary to the approach taken in both HMA v Aikman & Martin and in HM Advocate v RM, which emphasised that the first step in the process was the interpretation of the Act and not of Chapter 18. It is the word "degre" on which the proper interpretation of the statute turns. To interpret the meaning of "degre", Leviticus provides explanations and illustrations. Verses 7 to 17 of Chapter 18 give a series of examples of what is more generally expressed in verse 6, and these cover relationships of both sanguinity and affinity. Acknowledging the relationship between step-father and step-daughter was a "degre" clearly covered by verse 17 and was therefore prohibited.

[10] Counsel for the respondent argued that the judge of first instance was correct to conclude that there was no binding authority on him on this matter under Scots Law. Such observations as had been made were obiter and inconsistent. The true meaning of what was a prohibited relationship was to be found in the text of the legislation. Further, the Lord Ordinary was right to apply a strict construction of what was a penal statue in the way least burdensome to the subject (Hume on Crimes vol. 1, p.447). In counsel's view, the plain and ordinary words in verse 6 were concerned with consanguine sexual relations; the phrase "ye kindred of his flesh" clearly meant a blood relationship. Many of the other examples of incest in verses 7 to 17 of Chapter 18 refer to relationships defined by consanguinity. Counsel accepted that some of those examples of prohibited incestuous conduct did involve relationships of affinity but he argued that the terms of verse 6 should not be read as a device to extend consanguinity relationships to include similar relationships of affinity. Not all consanguine relationships in Leviticus, in counsel's view, were reflected in similar prohibitions relating to relations of affinity. When relations by affinity were prohibited, they were specifically stated as such. It was not immediately obvious that the phrase in verse 17 "ye wife and her daughter" meant a step-daughter; in the ordinary usage of words it simply indicated the wife's daughter. Such a reading as contended for by the Crown seemed inconsistent with other verses in Chapter 18. When the term "kinsfolk" or "kindred" were used elsewhere in Chapter 18, it meant blood relatives; there appeared to be no prohibited relationships by affinity with what were called kinsfolk of any kind. In Chapter 16, an Act passed on the same day as the Incest Act, the difference between consanguine relations and relations by affinity is clearly drawn, but that was not true of the Incest Act.

[11] Counsel for the respondent then turned his attention to the various authorities which could be said to touch on the topic. He considered first of all the case of HMA v Aikman & Martin 1917 J.C. 8; 1916 2 S.L.T. 278. In that case, which was concerned with an incestuous relationship between an uncle and his niece, Lord Johnson expressed the opinion that the function of the Court was to interpret the statute of 1567 and not Chapter 18 of the Book of Leviticus, except in so far as that was necessary to ascertain the meaning of the statue. He was satisfied that the essential purpose of the Act was to prohibit sexual relationships within certain degrees, and that verses 6 to 17 of Chapter 18 gave but a series of examples of how that relationship more generally expressed in verse 6 might be interpreted. He concluded that the examples given were not intended as a limiting and exhaustive specification of the cases to which the prohibition of verse 6 was to apply, and further that where a relationship by consanguinity was mentioned, the corresponding relationship by affinity was meant to be covered. Counsel submitted that this last conclusion was wrong. He argued that the only reasonable and most likely meaning of the reference in verse 17 was that the daughter referred to was the legitimate blood daughter of the panel. There was no other express reference in the Act or in Leviticus to the position of a father and his own daughter (see HM Advocate v Aikman & Martin p. 9). Having regard to what was said in verse 6, and reading the Act as a whole, the provisions in verses 7 to 17 must relate only to consanguine relationships under the statute unless otherwise specifically stated. Counsel further submitted that there was no other authority that was of real assistance. Hume on Crimes, (p. 440) provided simply an assertion supported by an anecdotal reference to one case; there was no recent authority, and Hume's opinion contradicted his own caveat that if a penal statute is ambiguous there should be a strict and literal interpretation to the side of mercy (see p. 447). Similarly the passage in McDonald on Criminal Law of Scotland (5^th ed), p. 148 to like effect was a bare statement, unvouched by reasoning or case-law. None of the cases cited by the Crown was directly in point, and there was no apparent justification for Lord Johnston's obiter opinion in HM Advocate v Aikman & Martin that a relationship by affinity could be regarded as prohibited merely because a similar consanguine relationship was.

[12] We accept that the terms of verse 6 in Chapter 18 of Leviticus appear to be concerned only with sexual relations between consanguine relatives. However we do not accept that that verse defines the essence of all of the prohibited relationships contemplated by the Act, nor do we think that the examples given in the following verses are exhaustive. As Lord Justice Clerk Scott Dickson pointed out in HM Advocate v Aikman & Martin (at p. 9), relationships between a father and daughter, or between a grandmother and grandson, are not expressly struck at by the Act, but are clearly incestuous. Nor do we consider that relationships by affinity are excluded unless they are specifically so described, although that is a conclusion which is not necessary to this decision. We are satisfied that in terms of the Act, the relationship between a step-father and step-daughter is prohibited. That is clearly the interpretation placed on verse 17 by Hume (p 449) and McDonald (p. 148). In our view it is not difficult to understand why these two  writers came to that view. Certainly regard has to be had to the antiquity of the language and forms of expression, which are very different from what might be expected today. But the first step towards understanding what is meant by verse 17 must follow an examination of the terms of the Act itself. It is true that verse 6 might be seen as a general introduction to the categories of relationship afterwards described in the following verses, and that it refers to consanguine relationships only. But in the succeeding verses 8, 14, 15 and 16, what are plainly relationships by affinity are described as forming the basis of the charge of incest. Clearly the purpose of the Act is to describe the kind of relationships which form the basis of such a charge, whether they be a relationship of consanguinity or affinity. It is in our view overly elaborate to suggest that because verse 6 refers to a blood relationship, then subsequent verses should be defined by that, especially when the terms of those verses are reasonably clear. The purpose of the Act is to describe the "persons in degree" between whom relationships are prohibited. The full terms of verse 17, cited earlier, in our view clearly refer to the daughter of the wife of the panel, with whom it is prohibited to have a sexual relationship. That description is apt to cover any category of daughter, whether she be the issue of the panel or any other person. By identifying the person to be protected by reference to her relationship to her mother, the 1567 Act clearly intended that to be the sole means of identifying the parties to a prohibited relationship. It therefore follows, in our view, from the terms of verse 17 and the Incest Act itself, that it is the relationship between the mother and daughter which is sought to be protected, irrespective of the daughter's paternity. The Act emphasises this by identifying that, in such a relationship, it is also the mother's shame which is uncovered, and by stressing that even where the person in question was a step-daughter of the panel, by virtue of the panel's own relationship with the mother she has become one of the kindred of the panel.

[13] We accept that none of the authorities to which we were referred provides clear and unequivocal support for the position which we believe to be correct. In HMA v Aikman and Martin, Lord Johnson may have been right to suggest that, as a matter of interpretation, all affinity relationships which have a parallel with consanguine relationships should be covered by the Act, but that is not a matter necessary for us to consider in the present case. Nor do we think that Lord Milligan's obiter remarks in HM Advocate v RM concerning the different treatment accorded to legitimate and illegitimate daughters of the panel are particularly helpful. The idea that illegitimate children are not protected under this Act appears to have been long accepted in our law (see e.g. Alison's Criminal Law Vol. 1, p. 565; HM Advocate v Black 1894 SLT 436), but whether it was justified or not, such a consideration cannot, in our view, rob the Act of its manifest intent.

[14] Accordingly, we are satisfied that, particularly on the authority of Hume and McDonald, the correct interpretation of the Act as illustrated by verse 17 of the 18^th Chapter of Leviticus is that it prohibits sexual relations between a step-father and a step-daughter. So far as we can see, this has not, until now, ever been actively doubted, except by implication where it has been suggested that such a relationship would not be prohibited if the step-daughter was illegitimate. Our view is further reflected in the understanding of the Scottish Law Commission in publishing their Memorandum on the Law of Incest in Scotland in1980, in which they too accepted that interpretation as being part of the law of Scotland (p. 16). This was a conclusion which they repeated in their Report on the Law of Incest in Scotland (Scot. Law Com. No. 69; Cmnd 8422, 1981) which they subsequently published. Indeed it was the law relating to the relationship that features in the present case that the report sought to amend, and this was subsequently given effect to in Section 2(B) of the Incest and Related Offences (Scotland) Act 1986. In introducing that new section, there was no suggestion that a new offence hitherto unknown to the law of Scotland was being introduced. In all the circumstances we are satisfied that the judge of first instance reached a wrong conclusion on this matter.

[15] Turning to the devolution minute, the issue was described in that document by the respondent in the following terms:

"(i) That by virtue of Section 57(2) of the Scotland Act the Lord Advocate has no power to act in a manner incompatible with the minuter's Convention rights, as incorporated by the Human Rights Act. Reference is also made to Section 6(1) of the Human Rights Act and to Sections 44(1)(c) and 129(2) of the Scotland Act;

(ii) Article 6 of the Convention provides, inter alia, that an accused person charged with a criminal offence is entitled to a fair trial;

(iii) Article 7 of the Convention provides, inter alia, that

'No one shall be held guilty of a criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed ... '
The object and purpose of Article 7 is to provide effective safeguards against arbitrary prosecution, conviction and punishment. Article 7 has been interpreted as embodying the principle that crimes must be clearly defined in law, and that the law comprises written and unwritten law, which implies qualitative requirements of (a) accessibility and (b) foreseeability (including a requirement or provision). Reference was made to CR v UK, (1995) E.H.R.R. 363.

(a) 'Accessibility' requires that 'the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to the given case' (Sunday Times v UK, E.C.T.H.R, No. 30, para. 31).

That (b) 'foreseeability' requires the law to be formulated with sufficient precision to enable the citizen to regulate his conduct; he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail." (Sunday Times v UK at para. 49).

[16] Against this background, counsel for the respondent argued that in respect of the question of accessibility and foreseeability, the respondent must be able with reasonable ease to find the relevant legislation and to foresee with a degree reasonable in the circumstances what consequences his conduct might engage. Reference was made to Reed & Murdoch, A Guide to Human Rights Law in Scotland, at paras. 3.33 to 3.39. The Act of 1567 does not indicate which version of the Bible contains the necessary explanatory references. There is in fact only one copy of the Geneva Bible in the National Library of Scotland. This was not reasonably accessible. The bald statement in Hume cited earlier is scant basis for saying that the law is accessible, and neither McDonald nor any text-book author gives any detailed justification for this repeated assertion. The 1567 Act was expressed in obscure language and grammatical terms; there was an absence of binding authority that what was alleged in the present indictment was incest, and in view of this inaccessibility and obscurity the appellant's rights under Article 7 had been infringed, and the Lord Advocate had breached Section 57(2) of the Scotland Act by bringing the present prosecution.

[17] We were not persuaded that these arguments were sound. As the Advocate depute pointed out, in considering both the question of accessibility, and the requirement of foreseeability and its consonant requirement that the law be formulated with sufficient precision, it is reasonably foreseeable that a person in the position of the respondent would seek appropriate legal advice. Reference was made to the Sunday Times v UK (1979-1980) 2 EHRR 245. This was a statutory offence where the law could generally be regarded as certain, as opposed to a common law offence which may change over the years. Reference was made to CR v UK (1996) 21 E.H.R.R.363.

[18] Accordingly we were satisfied that there was no difficulty in understanding either the law or the text. There was clear authority in the textbooks available at the material time this offence was committed, and the appropriate legal advice from a competent source would have presented no difficulty to the respondent had he enquired about the legitimacy of his conduct. In particular the standard textbook at the material time, McDonald on The Criminal Law of Scotland makes a clear and unequivocal statement to the effect that a sexual relationship between a step-daughter and step-father amounted to incest. Although that statement is unaccompanied by other vouching authority, it is, in our view, unquestionably authoritative and represents what would have been the appropriate advice to be tendered at that time to the appellant. The orthodox definition of what constituted the offence of incest in the present circumstances, and the appropriate relevant advice, was therefore accessible. In addition, the true nature of the offence was, in our view, clearly foreseeable for the same reasons; the statement in McDonald is formulated with sufficient precision which could scarcely be clearer. In these circumstances we reject both the devolution minute and the minute of incompatibility.

[19] Accordingly we have concluded that the judge of first instance was wrong to conclude that the relationship described in the present indictment was not prohibited by the Incest Act of 1567, and to acquit the respondent. We therefore remit the case back to him to proceed as accords.