JOHN McKEARNEY v. HER MAJESTY'S ADVOCATE
| APPEAL COURT, HIGH COURT OF JUSTICIARY |
| Lord Justice Clerk Lord Kirkwood Lord McCluskey | Appeal No: XC175/02 OPINION OF THE LORD JUSTICE CLERK in APPEAL by JOHN McKEARNEY Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: ME Scott QC, McLaughlin; McClure Collins
Respondent: SF Murphy QC, AD; Crown Agent
16 January 2004
[1]In view of the importance of this appeal, I wish to add some comments to those of Lord McCluskey, with which I agree. I gratefully refer to Lord McCluskey's analysis of the evidence. For the purposes of this appeal, the significant points in the evidence are that in his police interview, on which the defence relied at the trial, the appellant admitted that he had intercourse with the complainer, but insisted that she had encouraged him to do so. The complainer accepted that she had not resisted penetration and that she had made no complaint at the time. She said that she had been frightened. It appears that about four hours had elapsed between the appellant's assault on her and the intercourse.
[2]The trial judge did not direct the jury on the question whether the appellant knew that the complainer did not consent to intercourse or was wickedly reckless on that matter. He directed them that they should not consider whether the appellant had genuinely and honestly believed that the complainer was consenting, and that if they took the view that there was intercourse and that it took place against the will of the complainer, then that was rape (Charge, p. 25).
The issues
[3]The submissions for the appellant have raised four issues; namely, (1) whether the trial judge failed properly to direct the jury on the question of mens rea; (2) whether he erred in directing them to disregard the question of honest belief; (3) whether distress de recenti on the part of the complainer was evidence of mens rea on the part of the appellant, and (4) whether the jury were entitled to hold that the complainer remained frightened of the appellant when he had intercourse with her.
(1)Mens rea and the question of consent
[4]For the purposes of this decision, I shall disregard those cases where the defence involves a denial that the accused had any sexual encounter with the complainer; for example, where he pleads alibi. I shall deal only with the typical case where the accused admits that there was intercourse but pleads that the complainer consented.
[5]Before the decision in Lord Advocate's Reference No 1 of 2001 (2002 SCCR 435) the actus reus of rape consisted of the four essential elements identified by Lord Justice General Rodger in Smith v Lees (1997 SCCR 139, at pp. 144-145). Each element was a factum probandum. To establish mens rea the Crown had to prove that the actus reus had been "consciously and intentionally or recklessly done against the woman's will" (Meek v HM Adv, 1982 SCCR 613, Lord Justice General Emslie at p. 617).
[6]So long as the overcoming of the complainer's will by the use of force was a definitional requirement of the crime, it was hardly necessary for a trial judge specifically to direct the jury on the question of the accused's knowledge of the complainer's lack of consent, or of his recklessness. There were exceptional cases; for example, where the accused said that he believed that the complainer's resistance was a pretence (Jamieson v HM Adv, 1994 SCCR 181; Meek v HM Adv, supra; cf DPP v Morgan, [1976] AC 182). In such cases the question of mens rea had to be more sharply focused in the judge's charge. But in almost every case the requirement of the use of force meant that if the jury found that the accused had used force, that finding implied that he had had the necessary mens rea. For that reason, it was not thought to be necessary in such cases for the trial judge to give a specific direction on the question of mens rea.
[7]In its decision, by a majority of seven judges, in Lord Advocate's Reference No. 1 of 2001 (supra), this court changed what had been settled law for almost a century and a half by deciding that the use of force was no longer an essential element in the actus reus of rape. That change had inevitable consequences on the manner in which a trial judge should direct the jury on mens rea. This case exemplifies a problem that was foreshadowed by Lord Marnoch in his dissenting opinion in that case (at paras [2] and [15]).
[8]The Crown accepts that in rape cases mens rea in relation to consent was and remains a factum probandum; that it must be proved by corroborated evidence, and that the onus of proving it is on the Crown. But in consequence of Lord Advocate's Reference No 1 of 2001 (supra), cases now arise where the Crown cannot point to the use of force as evidence of the necessary knowledge or recklessness on the part of the accused in relation to the complainer's consent. The requirement of mens rea in relation to the complainer's consent remains as it always was; but in my opinion, in a case where the use of force is not an element, a specific direction on the point is now essential.
[9]In the light of the new definition, a trial judge in such a case should direct the jury on what are now only three elements of the actus reus. He should direct them that the mens rea of the crime consists of an intention on the part of the accused to have intercourse with the complainer, together with knowledge on his part that she does not consent, or with recklessness on his part as to whether or not she does; and that the elements of the actus reus and of the mens rea are facta probanda which the Crown must prove by corroborated evidence.
[10]This case was exactly the kind of case that I have been considering. There was no evidence of the use of force at the relevant time. Therefore the omission of a specific direction on mens rea constituted a fundamental misdirection. The appeal succeeds on this ground.
(2)Honest belief
[11]The change in the law effected by the Lord Advocate's Reference No. 1 of 2001 (supra) requires us to reconsider the existing practice relating to directions on the question of honest belief. Doris v HM Adv (1996 SCCR 854) was a case under the old law where there was evidence of the essential element of the use of force. There was a stark conflict between the complainer and the accused on the question whether the complainer consented. The court held that there was no need for a specific direction on the question whether the accused honestly but mistakenly believed that the complainer consented unless the line of defence expressly put that question in issue.
[12]In my opinion, that principle has been superseded by the decision in Lord Advocate's Reference No 1 of 2001 (supra) in cases where the use of force is not an element in the Crown case. In such cases, the question of the complainer's consent, or lack of it, is more difficult to resolve. In such cases, in my opinion, the question of the accused's knowledge or recklessness as to the complainer's consent and the question of his honest belief are inextricable. If the jury hold that the complainer did not consent, because they believe her evidence to that effect, they must nevertheless consider whether or not the accused honestly believed that she did. In all such cases, in my view, the judge should give a specific direction on the point.
[13]This was plainly such a case. The trial judge did not direct the jury on the point. On the contrary, he pre-empted the issue by directing them not to consider it. That, in my view, was a fundamental misdirection. The appeal succeeds on this ground too.
(3)Distress as evidence of mens rea
[14]In cases where there is evidence of the use of force, the trial judge should direct the jury that that evidence, if accepted by them, is capable of demonstrating the necessary knowledge on the part of the accused of the complainer's lack of consent or the accused's recklessness on the matter.
[15]Where there is no evidence of the use of force, proof of mens rea will have to be established in other ways. It was suggested that in this case evidence of mens rea could be found in the complainer's distress de recenti.
[16]The question of distress was considered authoritatively in Smith v Lees (supra) and in Fox v HM Adv (1998 SCCR 115). These decisions establish that where distress de recenti is capable of providing corroboration at all, the corroboration relates only to a specific element of the actus reus; for example, the complainer's lack of consent or, in the former law, the accused's use of force. But it has not been suggested hitherto that such distress is capable of providing evidence of the existence of mens rea. In cases in which the Crown does not allege that force was used, the de recenti distress of the complainer may tell us about her lack of consent; but I fail to see how it tells us anything about the accused's state of mind. Since the point has not been fully explored in the submissions and since the appeal succeeds on other grounds, it is unnecessary for us to decide the point in this case.
(4)Evidence that the complainer was frightened at the time of the intercourse
[17]Counsel for the appellant submitted that since the initial assault occurred about four hours earlier, its effects were spent by the time of the intercourse. The evidence showed that when they left the kitchen to go to the bedroom, both the complainer and the appellant had calmed down, and that the discussion about their son had been constructive. There was no evidence that at the time of the intercourse the complainer was too frightened to resist.
[18]In my opinion, this submission is unsound. The question whether the effects of the assault were spent by the time of the intercourse, with the result that the complainer was no longer frightened of the appellant, was a pure jury question. It cannot found a ground of appeal.
Disposal
[19]The jury returned a single verdict on the libel, as restricted. The advocate depute did not suggest to us that if we sustained the appeal we should nonetheless sustain the conviction in respect of the assault. The appeal was argued on both sides on the basis that the assault and the rape stood or fell together. In view of that, we have simply allowed the appeal.
| APPEAL COURT, HIGH COURT OF JUSTICIARY |
| Lord Justice Clerk Lord Kirkwood Lord McCluskey | Appeal No: XC175/02 OPINION OF LORD KIRKWOOD in APPEAL by JOHN McKEARNEY Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: ME Scott, QC, McLaughlin; McClure Collins
Respondent: SF Murphy, QC, AD; Crown Agent
16 January 2004
[20]I am in full agreement with the Opinions of the Lord Justice Clerk and Lord McCluskey, and there is nothing I wish to add.
| APPEAL COURT, HIGH COURT OF JUSTICIARY |
| Lord Justice Clerk Lord Kirkwood Lord McCluskey | Appeal No: AC137/03 OPINION OF LORD McCLUSKEY in APPEAL by JOHN McKEARNEY Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: M.E. Scott, QC, McLaughlin; McClure Collins, Solicitors
Respondent: SF Murphy, QC, AD; Crown Agent
16 January 2004
[21]This appeal against conviction raises issues that relate to the re-statement of the law in Lord Advocate's Reference (No 1 of 2001) 2002 SCCR 435. It was heard along with the appeal by Bayram Cinci. In both cases there were also appeals against sentence; but the appeals against sentence were not argued at this stage. The two appeals against conviction were heard together as they raised issues common to both. However, as the principal issue upon which the appeal by Bayram Cinci fell to be decided is not raised in this appeal, it is appropriate that there be separate Opinions in the two appeals. In this Opinion, and before turning to the particular details, facts and circumstances of the case, it is appropriate to refer to certain important features of the law and practice pertaining to rape cases, about which there was and can be little dispute.
[22]Until the decision in Lord Advocate's Reference (No 1 of 2001), the approved practice of judges, when directing juries as to the essential facts that the Crown had to establish in order to prove that an accused man was guilty of rape, was to specify certain matters that had to be proved by corroborated evidence. As the Lord Justice General said in Smith v Lees, 1997 SCCR 139, at page 144,
"But there are certain facts which can be established only by corroborated evidence. These facts are variously described as 'fundamental' or 'crucial' or 'essential' facts or as the facta probanda, the facts which require to be proved. They are the elements which need to be established if the accused is to be found guilty of the crime in question - so, in rape, for instance, the Crown requires to prove (1) penetration of the complainer's vagina by (2) the accused's private member, (3) forcibly and (4) without the complainer's consent."
This formulation of the essential elements is clearly related to the proof of the actus reus of rape in the most common type of case, namely one involving a male and a female who are both adult, of sound mind and fully conscious, and where there is clear and sufficient evidence before the jury to enable them to hold that the woman's will had been forcibly overcome. What is noteworthy in the present context is that it does not expressly include any reference to the mens rea of the crime.
[23]The effect of the decision in the Lord Advocate's Reference (No 1 of 2001) was to remove the necessity of proving in any rape case that the sexual penetration was achieved "forcibly". Instead the court held that "the general rule is that the actus reus of rape is constituted by the man having sexual intercourse with the woman without her consent", per the Lord Justice General at paragraph [44]. Thus, in order to prove that an accused man is guilty of rape, it is not necessary to prove that he used force to overcome the woman's refusal of consent. In the same paragraph, the Lord Justice General added,
"(iii)mens rea on the part of the man is present where he knows that the woman is not consenting or at any rate is reckless as to whether she is consenting."
Lord Marnoch, in a dissenting opinion, said of the law as it had been generally understood until then,
"It will be seen at once that a requirement for the use of some form of force does at least answer fairly conclusively (although not absolutely so) any question anent the lack of consent by the woman and/or the knowledge of that lack of consent on the part of the man, and I cannot but think that that or similar considerations were in the minds of those who have gone before us, including the institutional writers. In that connection, it is not, I think, without significance that there appears to be no separate treatment of knowledge or guilty intention on the part of the accused in any of the institutional texts."
This passage clearly envisages that, in rape cases coming before the courts in future, questions as to the man's knowledge of the woman's lack of consent would be likely to come into greater prominence, especially in any case in which the evidence provided some proper basis upon which the jury could hold that the man believed that the woman was consenting. There was, of course, no suggestion by any of the judges in the Lord Advocate's Reference (No 1 of 2001) that the Crown did not have to establish, as an essential element in the proof of rape, that the accused had the necessary mens rea at the time of the alleged rape. However, Lord Marnoch's observation, taken along with the passage quoted from the Lord Justice General in Smith v Lees, serves to illustrate and confirm that, before 2001, it was not unusual for judges when considering the most common type of rape case, whether analysing the law in an appeal or directing juries as to the essentials of the crime of rape in Scots law, to refer to the use of force as a feature of the actus reus, but not to deal separately and explicitly with the state of knowledge, or belief, of the man in relation to the woman's lack of consent.
[24]The wording of the libel in the most common type of case may be seen in the report of the Lord Advocate's Reference (No 1 of 2001). The charge there read:
"[O]n 26 November 1999 at [address specified], you did assault [the complainer] and seize her by the arms., kiss her on the mouth, hold her down on a bed, handle her breasts, remove her clothing, kiss her on the breasts, insert your fingers into her private parts, compel her to sit astride you, attempt to compel her to insert your private member into her private parts and did repeatedly rape her."
That could be described as a "normal" form of libel in the most common type of case in that it averred an assault comprising the use of some degree of physical force other than such force as might be used in achieving penetration. It was no doubt thought unnecessary to give separate and specific directions about the proof of mens rea in such a case, or to embark upon an analysis of its meaning, because (a) the libel in such a case would invariably start by using the nomen juris "assault" before narrating the details of the force or menaces constituting the assault; and a direction about mens rea would have to be given in relation to the assault charged; and (b), given that the Crown had to establish that penetration had been achieved "forcibly", proof of that essential element of the actus reus carried a powerful, and in most cases almost inevitable, implication that the accused had acted while fully aware that the woman was not consenting and with the deliberate intention, manifested by his use of force, to overcome the woman's refusal to have intercourse with him. Thus, if force were used, the mens rea was normally treated as being evident from and clearly implied by the actus reus itself. As the Lord Justice General said in Meek and Others v. H.M. Advocate, 1982 SCCR 182, at page 618, "The criminal intent is, after all, to force intercourse upon a woman against her will ... ". Accordingly, in practice, the need for a distinct and detailed direction about the mens rea required for proof of rape would tend to arise sharply only in rather special and unusual circumstances, possibly of the character of those seen in cases such as Jamieson v H. M. Advocate 1994 SCCR 181, and Meek and Others v. H.M. Advocate supra, where, although the man used force when meeting with resistance from the woman, there was some evidence suggesting that he genuinely, though erroneously, believed that the woman was consenting; and that he therefore did not at the material time possess the mens rea which was an essential ingredient of the crime of rape: cf. the observations of the Lord Justice General on this matter in Jamieson v H.M. Advocate at page 185, quoted later in this Opinion. It would be possible to think of other highly unusual sets of circumstances in which exceptionally careful consideration of the character of mens rea might have been thought necessary before 2001 - such as a case in which there was some evidence that the man acted under the influence of involuntary hypnotism, with the result that at the material time he was not in control of his own will. In short, before 2001, in the most common type of case, proof of the essentials of the actus reus tended to elide the need for a separate explicit direction about the mens rea required for proof of rape: the effect of requiring that the accused had used force to overcome the woman's will was to mask, or even eclipse, the essential requirement for proof of mens rea.
[25]However, it is clear that the requirement for proof of mens rea was always present in cases of rape, even in what has been referred to here as the most common type of rape case. Thus, because one effect of the decision in the Lord Advocate's Reference (No 1 of 2001) has been to remove the masking effect of the "force" requirement, the Crown has to accept that, at least in some cases, it will now have the task of proving the accused's mens rea without being able to rely upon the clear link between the use of force and the implication of mens rea. As it is clear beyond argument that, with the possible exception of the "reckless" man referred to by the Lord Justice General in Lord Advocate's Reference (No 1 of 2001), at paragraph [44] (iii), a genuine belief by the accused man that the woman is not consenting to sexual intercourse with him is an essential ingredient of the mens rea of rape, the jury must be given clear and explicit directions on mens rea in any case where the Crown leads evidence that the woman did not consent but where in the light of the whole evidence, it is open to the jury to hold that the man did not use force to overcome that refusal of consent. To quote more fully from the opinion of the Lord Justice General in Jamieson v H.M. Advocate supra at pages 186 - 187,
"The crime of rape consists in the carnal knowledge of a woman forcibly and against her will. Thus the mens rea of this crime includes the intention to have intercourse with the woman without her consent. The absence of a belief that she was consenting is an essential element in it [emphasis added]. If a man has intercourse with a woman in the belief that she is consenting to this, he cannot be guilty of rape. Now the question whether the man believed that the woman consented is a question of fact. It is a question which the jury must decide, if it is raised, on the evidence. The grounds for his belief will be important and if he has reasonable grounds for it, the jury may find it easier to accept that he did honestly believe that the woman consented. But it will be open to the jury to accept his evidence on this point even if he cannot give grounds for it which they consider to be reasonable, and if they accept his evidence they must acquit him ... The reason why, in rape cases, the man's belief need not be shown to be based on reasonable grounds for his belief to be relevant as a ground of acquittal is because of the particular nature of the mens rea which is required to commit the crime. Difficult questions of fact may arise as to whether, if he can give no reasonable grounds for his belief, the accused genuinely believed at the time that the woman was consenting or was reckless or indifferent as to the matter of consent. These questions are, however, for the jury to resolve, on proper directions by the trial judge, in the light of the evidence."
Although these concluding observations, as to the need for proper directions by the trial judge in the light of the evidence, were made in a case in which the accused gave evidence that, although the woman had resisted his advances, he genuinely believed that she was a consenting party, they clearly apply in any case in which the evidence provides a basis upon which the jury may properly hold that the man actually believed that the woman was consenting.
[26]The charge of which the appellant was convicted was in the following terms:-
"on 5 November 2001, you did force entry to the flat at [address in Glasgow] occupied by [the complainer] and there you did assault said [complainer], repeatedly threaten to kill her, sit astride her, repeatedly place your hands around her throat and compress same, restrict her breathing, and further you did repeatedly handle her breasts, rub your private member against her body and rape her".
[27]When convicting this appellant, the jury deleted the words, "place a pillow over her face and" and also the words, "pull a telephone from the wall, and did attempt to murder her".
[28]The facts and circumstances were narrated by the trial judge in his Report to this Court in the terms following. For completeness, there is added the trial judge's explanation of how the issue of "genuine belief" was raised.
"The evidence disclosed that the appellant and the complainer had lived together for about three years at the address specified in the libel. They split up in August 2000 although there were occasions when they saw each other. They kept in touch with each other by telephone. Since August 2000 they had not had a sexual relationship with each other. The appellant had formed a relationship with another woman since the separation but the complainer had not (sic.). On Sunday 4 November 2001 the complainer went to bed and was asleep when she was wakened by her mobile phone ringing. She answered it. It was the appellant. He asked her to telephone him back but she refused to do so. The complainer returned to bed. Sometime thereafter her house telephone rang. The caller was telephoning from a payphone. It was again the appellant. He asked the complainer to telephone him but she refused as she had work the next day. She swore at the appellant because she was angry and trying to get to sleep as she had to get up for work. The complainer fell asleep but sometime later she wakened to find the appellant sitting astride her with his hands round her throat. He was compressing her throat. He said that he was going to kill her and thereafter kill himself. The complainer was finding difficulty with her breathing and felt her eyes bulging. The complainer had never seen the appellant like this and he had not been violent during their relationship. She was shocked and afraid. The complainer was struggling and eventually the appellant loosened his grip enabling the complainer to wriggle free. She got off the bed and ran round to the side of the bed where the telephone was. She picked up the receiver but the appellant came towards her, pushed her and she dropped the phone. The telephone became disconnected. The appellant pushed her back onto the bed and again put his hands at her throat with his thumbs at her Adam's apple. He again stated that he was going to kill the complainer. He was pressing at her windpipe. The complainer was panicking and finding it hard to breathe. He kept repeating that he was going to kill her. The complainer took the threat seriously. The complainer pulled at the appellant's hands and may have scratched them. The complainer's arms became caught in some curtains which fell from the curtain rail. At that point the appellant let go. He did not say anything. The complainer was crying. She asked if she could go for a drink of water. The appellant allowed her to do so but followed her into the kitchen. The complainer had never seen the appellant so angry before. He then became very quiet. The appellant was standing at the kitchen door while the complainer was in the kitchen having a drink of water. The complainer was afraid to attempt to escape because she knew that the appellant would prevent her from doing so. She took her time over drinking the water. The appellant told her not to take so long saying 'Don't try to prolong it. I can do in here what I was going to do in the bedroom.' The complainer thought that he was going to kill her. She was hysterical. The appellant said that her crying was annoying him. He looked very angry. She stopped crying to try to calm him down. They were in the kitchen for about half an hour.
He told her to go back to the bedroom which she did. In the bedroom he said 'I've had enough of this. I'm just going to kill you now.' He did not appear angry but the complainer thought that he was serious. He went to put his hands round her throat again and the complainer started to cry. She asked why he was doing this but got no reply. She said that she needed to go to the bathroom. He allowed her to do so. The bathroom was to the right of the bedroom at the end of the hall. The appellant sat on the end of the bed at the open bedroom door. The appellant would be able to intercept her if she attempted to escape. When she was in the bathroom the complainer could hear the appellant speaking to himself. She heard him say 'Just do what you came to do. Just kill her, John.' When the complainer came out of the bathroom the appellant appeared calm. She lit up a cigarette. The appellant was not saying anything. The complainer started to cry. He put his hand onto her shoulder and moved his hand down to her left breast. The complainer shook her head and took his hand away saying 'No, John, this isn't happening'. He got angry. He said 'You'll shag everybody else but you won't shag me'. He then said 'I've had enough. I'm just going to do it.' The complainer thought that he was going to kill her. She ended up against a window. He again put his hands round her throat but did not exert as much pressure as on previous occasions. She mentioned her son, who is aged seven, and asked the appellant who would look after him if the appellant killed her. There was then an argument about the complainer's son. The appellant wanted to see him and the complainer would not let him do so. The complainer's son spent a lot of his time with his maternal grandmother. In an attempt to appease the appellant she told him that she would see a lawyer and have a document drawn up to enable him contact with her son. The appellant stated that she was lying and said 'People who fear for their lives will say anything to save it.' There was a further discussion about her seeing a lawyer and the appellant appeared to calm down.
The appellant appeared to be calmer and told the complainer to get into bed and get some sleep. She said she didn't want to. He told her just to lie down. She lay on top of the bed and he lay down beside her. She had no intention of going to sleep because the appellant was unpredictable. He told her to go to sleep. She said that she didn't want to. He told her to turn round and, when she asked why, he said he was going to rub her back. She complied with his request for fear of what he might do otherwise. He was rubbing her back on top of her nightdress. Eventually he put his hand under her nightdress and continued rubbing her back. He then started rubbing his own body up and down against her. He moved her underwear to one side over one cheek of her buttocks. The complainer did not do anything because she was terrified. He started rubbing his penis against her bottom. He inserted his penis into her vagina. The complainer did nothing because she was terrified. She just lay there. She was frightened. He ejaculated. The complainer did not want to have intercourse with him. He did not even ask her if she wished to have intercourse. Eventually he got off the bed and said 'You'd better get ready for your work'. The complainer got up and had a bath. She got ready for work and arrived a little late. She was in a distressed condition and reported the matter to the police. The complainer had injuries consistent with her account of events, including bruising at her neck.
At his police interview the appellant admitted breaking into the complainer's home. He said that he did so because he thought that she was having an affair with one of his friends. Although they had been separated for some time and he had a relationship with someone else, the appellant did not think it appropriate that she was having such an affair. He explained that there had been an argument in the course of which he 'grabbed her by the throat', although he was indicating that this was simply a pushing movement with this thumb and forefinger in a 'v' shape. The appellant also stated in response to a question as to whether he had threatened to kill the complainer that he possibly could have. He could not remember saying that but he would not deny that he possibly did.
The appellant did not give evidence and the issue of a genuine belief of consent was raised in his speech to the jury by the solicitor representing the appellant. I refer to this at page 24, line 19 onwards in my charge. As is apparent from my comments to the jury, the basis of the submission by the solicitor for the appellant was that the complainer did not tell the appellant to stop at any stage. In the circumstances of this case I did not consider that there was any evidence relating to the absence of a belief that the complainer was consenting. The passages in the appellant's interview with the police between pages 24 and 26, where he is describing the intercourse, are indicative of consensual intercourse, with the complainer taking an active part. At one stage the appellant refers to the complainer taking his penis and rubbing it off the front of her clitoris."
[29]The amended Grounds of Appeal against conviction were in the following terms.:
"2.There was a misdirection on the part of the Trial Judge when he stated to the jury that he could not consider any question of 'honest belief' on the part of the accused that the complainer was consenting to Sexual Relations c.f. Jamieson v HMA 1994 SCCR 181.
3.The complainer gave evidence of sustained assault preceding the episode where there was the alleged rape. Even if the complainer's evidence as a whole was such as to infer that the appellant had the necessary mens rea - whereby the jury were entitled to infer that the appellant knew she did not consent or did not care whether she consented to sexual intercourse - there was insufficient evidence in that there was no corroboration of the mens rea of the appellant. In particular the distress does not provide same and the evidence of injury related only to the preceding assault and did not corroborate the alleged rape.
4.In any event the trial judge failed to direct the jury that they required to be satisfied that the Crown had proved the necessary mens rea on the part of the appellant."
The submissions
[30]Ms. Scott, who presented the submissions in this appeal and that by Bayram Cinci, began by submitting that, in both cases, it had been essential for the Crown to establish mens rea and that full proof of mens rea was required. It was accepted that mens rea might be established as a matter of inference from proven primary facts. The Crown did not challenge those submissions: see para. [X] below. As they are clearly correct, I need not set forth the arguments in detail. It is sufficient for present purposes to reaffirm that for the reasons set out at the beginning of this Opinion mens rea is an essential component of the crime of rape in Scots law. Full proof of mens rea is necessary; but, in the absence of direct evidence of the accused's state of mind at the material time, the mens rea for rape may be proved if it can be inferred from primary facts established by sufficient evidence.
[31]Ms. Scott further submitted that, in this appeal, the absence of consent on the part of the woman was at the heart of the matter, not just in relation to the actus reus but also in relation to mens rea; because, in order to establish the necessary mens rea, the Crown had to prove that at the material time the accused knew that the woman was not consenting, or, at least, that he was recklessly indifferent as to whether or not she was consenting. The guilty state of mind of the accused on this material matter had to be established by a full proof. Furthermore, because the matter was fundamental, the jury had to be given express directions on this essential feature of mens rea in any case in which the evidence provided a basis upon which the jury could hold that the man might have believed that the woman was consenting. In any such case, evidence that the woman was not in fact consenting, even if there was also evidence from the man that she was clearly consenting, did not necessarily exclude the possibility that the man genuinely believed that she was consenting: a genuine belief by the man that the woman was consenting could be present even when the woman was not in fact consenting. Yet, leaving aside "recklessness", the possession by the man of such a genuine belief would mean that he did not have the mens rea essential for proof of rape. The burden of proving that the accused man had the necessary mens rea lay with the Crown. In these circumstances, the jury would obviously have to receive explicit and very careful directions on mens rea where the evidence appeared to raise as a possibility that the accused had mistakenly but genuinely acted in the belief that the woman was consenting. This submission was not inconsistent with accepting that if, in any particular case, the use of force to overcome the woman's resistance was properly libelled and there was ample evidence to support its use, and if, in that situation, no possibility of mistaken but genuine belief on the part of the accused man emerged in the evidence, the directions on mens rea might not have to be very full. Ms. Scott then turned to an analysis of the evidence and advanced detailed criticisms on the lines of the Ground of Appeal.
[32]Ms. Scott submitted that the evidence summarised in the trial judge's Report clearly showed that the events giving rise to the charge libelled took place over a period of some hours and that the violence, starting with the forced entry to the flat and continuing with the assault on the bed and other assaults, was separate in point of time and circumstance from the sexual intercourse and its concomitants at the later time when the accused and the complainer were on the bed together. There was evidence that there was a clear and long break between the earlier events and the events when both were on the bed and the intercourse took place. At that second stage, the evidence was that the complainer had, at the very least, not resisted the sexual penetration; nor had she said or done anything to indicate that she was refusing intercourse. Whatever her state of fright or terror there was nothing to indicate that she exhibited any such signs to the appellant at about the time of the sexual activities described in evidence. Even if there was sufficient evidence to show that she had not consented to sex with the appellant, and even if the jury rejected the evidence given by the appellant - in his interview with the police - to the effect that the complainer was consenting to sex and co-operating with him in regard to it, the whole circumstances nevertheless raised the possibility that the appellant did in fact believe that the complainer was consenting. His saying that she did consent carried with it the implication that he believed she was consenting. At the very least, the jury were entitled, having regard to the whole evidence, to approach the central issues relevant to proof of rape, on the basis that there was a long, significant gap between the earlier violence and the sexual intercourse (including any sexual foreplay). In this state of affairs it was essential for the trial judge to give the jury careful directions about the nature of mens rea, and that the onus of establishing mens rea lay upon the Crown. It was, said Ms. Scott, unnecessary to make submissions in detail as to precisely what those directions should have been or should have contained in this case; because the trial judge had given no directions whatsoever on the mens rea of rape. On the contrary, he had emphasised to the jury that there were only two material questions for the jury to consider, namely whether or not there was penetrative sexual intercourse and, if so, whether or not it was against the complainer's will. He then added,
"Now, Mr Finnieston [the defence lawyer] advised you that I would direct you that you may require to consider a third question, namely if you accepted that there was sexual intercourse against the will of the complainer, did the accused nevertheless believe that she was consenting? That submission was based on the complainer's evidence to the effect that she did not tell the accused at any stage to stop. Well, ladies and gentlemen, that evidence should of course be considered in the light of all the other evidence in the case, including the evidence of the complainer about what she claims occurred prior to that. There is no evidence from the accused, and I have explained he doesn't have to give evidence, but there is no evidence from the accused that he believed, he had a genuine and honest belief, that the complainer was consenting to intercourse. In the circumstances of this case, I direct you, ladies and gentlemen, that you should not consider the question of genuine and honest belief. So if you take the view that there was intercourse and it was against the will of the complainer then that is rape".
He added,
"Now the next thing, ladies and gentlemen, I want to say is this. There has been some evidence about distress and, as I have said, the Crown has to corroborate the crucial facts, namely that the crime was committed and the accused was the person who committed it. It is not necessary to corroborate incidental matters, only the essential facts I have mentioned."
The directions given, and the omission to give essential directions on mens rea and the burden and standard of proof in relation to mens rea, amounted to a material misdirection. The Court should conclude on that basis alone that there had been a miscarriage of justice.
[33]The Advocate-depute submitted that "the legal framework" on the matter of mens rea was not in dispute. Mens rea was a factum probandum and the burden of establishing it rested upon the Crown; corroborated evidence was required. The issue was how mens rea was to be treated in practice. An explicit direction on mens rea might not be required if the matter of mens rea was "tied up with" the matter of the actus reus. The modus of engaging in the intercourse might well readily infer the necessary mens rea. The complainer's evidence, in this case, of repeated assaults, of her terrified state of mind because of the appellant's behaviour and manner throughout the whole period, and the fact the jury were well entitled to regard the whole events from the time of the appellant's arrival and forcing open the door until and including the sexual intercourse as being one continuous chain of events in which the appellant's violence and menace overcame the complainer's will, all pointed to this being a case in which the mens rea was irretrievably bound up with the actus reus. This case was clearly a case in which the complainer's will had been forcibly overcome, even if the use of force and other menacing behaviour did not immediately precede the sexual behaviour. No issue of genuine belief as to consent had been raised in evidence; the appellant had not given evidence and this matter was not raised by him in the police interview, which had been introduced in evidence. In any event, the jury must have rejected the appellant's account of what had happened. In these circumstances, the directions given were sufficient. There was no miscarriage of justice.
[34]In my opinion, the failure of the trial judge, in the circumstances of this case, to give any directions to the jury as to mens rea amounted to a misdirection. For the reasons that are given in the earlier part of this opinion, a full direction as to the meaning and possible application of the concept of mens rea is now seen to be essential in a rape case such as this. Quite apart from the role of the defence in placing evidence before the jury as to the accused's belief, what must be recognised is that the burden of proving mens rea rests upon the Crown throughout the trial. In this case, one view of the facts that the jury might have properly taken was that the sexual activity leading to full intercourse was a separate chapter of events from those involving violence and menacing behaviour on the part of the appellant. It was also clear that, although the jury had clear evidence that the complainer did not consent to the intercourse and was frightened, even terrified, because of the appellant's behaviour, there was ample evidence, including that of the complainer herself, that she said and did nothing to indicate to the appellant that she was not consenting to intercourse. Thus there was clearly room for the jury to form the view that, although the complainer did not consent to the intercourse, and that therefore the actus reus was established, nonetheless the possibility that the appellant acted in the belief that she was consenting was not excluded; the evidence led did not exclude that possibility. If he had acted in that belief then he would not have possessed the mens rea that is essential to the commission of the crime of rape. It was for the Crown to establish that he had the necessary mens rea. In these circumstances, the jury should have been given clear directions about the need for the Crown to establish mens rea by sufficient evidence, that is to say by full legal proof. The jury should have been instructed how to apply the law, including the concept of mens rea, to that possible view of the facts. The directions given, quoted earlier, contain no such instructions. On the contrary, they erroneously suggest to the jury that all that is required for proof of rape is that the woman has been subjected to sexual intercourse without her consent. That is not the law. It never was; and nothing in the decision in the Lord Advocate's Reference (No 1 of 2001) altered the law in that important respect. The misdirection described was a most material misdirection in that it related to one of the fundamental elements of the crime of rape. The appeal must succeed on this ground of appeal (Ground 4.) As the Court is unanimous in holding that there has been a miscarriage of justice in this respect, it is unnecessary to discuss the other grounds.
[35]I should only wish to add a reference to Doris v. H.M. Advocate 1996 SCCR 854. That case preceded the decision in the Lord Advocate's Reference (No. 1 of 2001). The trial judge gave directions which were fully in accordance with the law and practice in rape cases at that time. No point was taken on the appeal about the sufficiency of the evidence. The Lord Justice-General, delivering the Opinion of the Court said, at p. 857:
"The trial judge has told us in his report that he has checked his notes of the speech of counsel for the defence and that he can find no mention in it of his having suggested that the appellant might have honestly but mistakenly believed that the complainer was consenting to sexual intercourse. He says that it was quite clear to him from the line of cross-examination of the complainer, the evidence of the appellant and counsel's speech to the jury on his behalf, that the defence was that the complainer consented. It seemed to him that the issue which had been raised in the case was a straightforward issue of fact, namely whether intercourse took place against the will of the complainer or whether it took place with her consent.
Miss Scott for the appellant accepted that the question whether a direction on honest mistake was required depended on the circumstances. In Meek v H.M. Advocate at p.618 Lord Justice-General Emslie said that in many cases there will be no part for such a direction to play. In that case, as in R. v Morgan, the two accounts were each wholly incompatible with the other. It was held that there was no room for the direction which the court in Meek, following R. v Morgan, would otherwise have considered to be appropriate. In Jamieson v H.M. Advocate (No. 1), on the other hand, where the direction was given but its terms were such that there was held to have been a misdirection, the appellant's evidence was that he thought that the complainer had consented to intercourse and that, in any event, he believed that he had her consent. Counsel accepted that the distinction which she was seeking to draw was a very fine one, but she maintained that the circumstances in the present case were such that the direction was required. She said that there was room in this case for a reasonable belief that the complainer was consenting, as there was no evidence of any threat or of any physical injury and there had been no noise. This was not then a case where the choice lay between two extremes. The Crown had to prove mens rea and that meant that they had to exclude a reasonable belief on the appellant's behalf that the complainer was consenting to intercourse.
The questions of fact which the jury will have to resolve depend in rape cases, just as in any other case, on the state of the evidence. The issues raised by the evidence will also determine, although to a lesser extent, the directions which require to be given by the trial judge. There are some basic directions which he must always give and no charge in a rape case will be complete unless he has explained to the jury what constitutes the crime of rape. But once the basic directions have been given, it must depend on the circumstances, and in particular on the evidence, whether any further directions are needed to enable the jury to apply their minds correctly to the issues which they have to decide. Directions which are unnecessary because they relate to matters not raised in the evidence should be avoided where possible. They will prolong the charge and may cause confusion and perhaps prejudice the accused. Furthermore, as the Lord Justice-General pointed out in Jamieson v H.M. Advocate (No. 1) at p.187A-B, difficult questions of fact may arise where honest belief is put in issue, especially as to whether the accused can give reasonable grounds for his belief. A decision will be required as to whether he genuinely believed at the time that the woman was consenting or whether he was merely reckless or indifferent on the whole matter. So a direction about honest belief in rape cases should only be given when the issue about honest belief has been raised in the evidence. A jury should not be invited to speculate on these matters if there is no basis for this in the evidence which has been led at the trial."
Following the decision in the Lord Advocate's Reference (No.1 of 2001), it is now clear, as accepted by the Crown, that in any rape case in which there is no evidence of the use or threat of force at the time of, or immediately preceding, the sexual penetration, and the evidence provides some proper basis upon which the jury might hold that the man believed that the woman was consenting to intercourse, specific directions on mens rea, including direction about actual, honest belief, will be required. These directions will have to include a direction that the onus is on the Crown, and a direction as to the need for full legal proof of mens rea.
[36]I agree with the Opinion of the Lord Justice Clerk.