Despite the lockdown, some important decisions have been handed down by the Criminal Appeal Court covering several aspects of sexual offence cases, as well as bail applications where an extended period has been spent on remand
A lot has, or hasn’t, happened since lockdown on 23 March 2020 and the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 and associated legislation coming into force on 26 March. Ten hub courts have been sitting to deal with custodies – sometimes long into the evening – and most civil business has been in suspended animation. The courts are there if you want to plead guilty, but there have been a few appeal cases heard and reported, which has kept me in business.
I write ahead of the starting date for the Scottish Government’s routemap, but I see that reopening courts and tribunal buildings, playing golf and going to the tip are included in phase 1, so that would see me pretty much back to normal and away from prolonged spells over a hot stove conjuring up vegetarian meals for the family.
A short term working group has been established, led by the Lord Justice Clerk, tasked with restarting jury trials. It will look at how physical and practical constraints might be overcome, and how far jury size will make it easier to apply social distancing. We did go down to seven person juries during World War 2, with five votes needed for guilty. My feeling was that quite a backlog of solemn cases built up before lockdown, since when further valuable time has been lost. All hands will be at the judicial pump from August, so it will be interesting to see how matters are taken forward.
Meantime there are a few important decisions to report, mostly in the context of sexual offences but also about the ultra-topical subject of bail.
Dockets; reasonable belief
These two thorny issues in rape cases arose in RKS v HM Advocate  HCJAC 19 (22 May 2020). The appellant went to trial on charges of assaulting his partner on occasions between June 2013 and February 2017 in Glasgow, where they lived, and raping her in February 2017. A docket in the indictment narrated that between 2011 and 2013 the appellant engaged in sexual activity with the complainer in England when she was 14 and 15 years old.
At the conclusion of the Crown case the assault charge was withdrawn. The appellant was convicted of rape. The complainer said in evidence that they had met when she was 14 and the appellant 27. Shortly afterwards they began a sexual relationship. Two years later the appellant moved to Glasgow and asked the complainer to join him when she left school on her 16th birthday. They lived together between 2013 and 2017 and married in 2015. A son was born that year. No objection was taken to this evidence.
The complainer further stated that the relationship was volatile. Arguments came to a head after they attended a family party on 19 February 2017. She became distressed and after contacting her half-sister expressing suicidal ideation, her family arranged to travel from Somerset to collect her and the child. The rape took place on 21 February and at one point the appellant tried to strangle her. After her family took her away later that day, her half-sister noticed bruises on her neck. The complainer simply said they were caused by the appellant strangling her. When the appellant kept up a barrage of phone calls and texts, she sought police advice about harassment and disclosed the rape.
The appellant denied intercourse prior to the complainer moving to Glasgow, denied this move had been at his instigation and said the intercourse charged as rape had been at the complainer’s request to make up with him after an argument.
On appeal it was contended, first, that the trial judge erred in directing the jury that they could take into account the narrative in the docket. By that point, intercourse when the complainer was 14 or 15 could not be said to be part of the same series of offences as the rape. While it was relevant how the couple came to know one another, the evidence was no longer relevant to the remaining charge, rape. The judge’s failure to direct the jury to ignore it resulted in the jury taking into account an irrelevant and highly prejudicial matter.
The second ground concerned which elements of the charge required to be corroborated. The complainer gave evidence of a forcible rape and the appellant’s position was consent. It was argued that contrary to dicta in Graham v HM Advocate 2017 SCCR 497, reasonable belief was a live issue in every case libelling contravention of s 1 of the Sexual Offences (Scotland) Act 2009, just as honest belief would be in every case prosecuted at common law. The judge’s direction to the effect that absence of reasonable belief did not require corroboration was wrong in law. Lack of reasonable belief was one of the three essential elements of s 1 rape. Previous authority was wrongly decided in suggesting that no direction on absence of reasonable belief was required unless it was a live issue.
The Crown highlighted that no objection had been taken to the docket at the outset, and the complainer had spoken to intercourse without her consent and through force. Evidence of distress and evidence of injury corroborated her account.
Their Lordships agreed, and in relation to the second ground of appeal referred to Doris v HM Advocate 1996 SCCR 854, Lord Justice General Hope at 857, and Blyth v HM Advocate 2005 SCCR 710, Lord Justice General Cullen at para 10: “While it is no doubt correct as a proposition of law that the crime of rape is not committed if the man believes that the woman is consenting, a direction to that effect where the Crown case is that sexual intercourse was obtained by force is unnecessary.”
The moral here is that if you don’t like the docket, objection should be taken prior to trial and not after the evidence has been led. Notwithstanding the “new” definition of rape, if there is evidence of force, absence of reasonable belief is not necessarily an issue.
Moorov and beyond
PGT v HM Advocate  HCJAC 14 (2 April 2020) considered a three charge indictment involving two complainers. Two charges consisted of sodomy and indecent assault on the appellant’s nephew when he was 12 or 13 years of age between March 1997 and March 1999, and indecent assault in March 2000. The third alleged rape by the appellant on his wife during 2006.
The first complainer had been given alcohol prior to the incidents, and had also been drinking at a family party prior to the second incident. After both incidents the appellant threatened to tell the boy’s parents about his behaviour unless he co-operated.
The appellant’s wife said they had returned home after a social event; the appellant was drunk. She had wanted to go to sleep but he raped her. He then told the complainer not to tell her parents or sister. She had not disclosed the incident until 2017.
A no case to answer was repelled, the judge holding there were a number of points of similarity: the offences took place in the appellant’s home; both major incidents involved forced penile penetration; both complainers were vulnerable; each was a relative of the appellant; both crimes involved removal of lower clothing and were committed in a bedroom with no one else present; the appellant took steps to ensure the complainers told no one else; the complainers, and also the appellant, had been under the influence of alcohol. The time gaps were not so lengthy that compelling or extraordinary similarities were needed.
The court had no difficulty holding the trial judge had been correct; the similarities were such that it could not be said that on no possible view could the jury draw the appropriate inference.
It was further contended that the credibility of a complainer in a mutual corroboration case should be tested within a single silo, no matter how many complainers made allegations of a similar nature. The court considered the assessment of such facts a matter involving a practical application of the jury’s combined intelligence and experience. Referring to Adam v HM Advocate  HCJAC 5, their Lordships highlighted the difference from general similar fact evidence which was not generally admissible if all it did was prove a general propensity on the part of an accused to commit a specific type of crime. The appeal was refused.
Another old chestnut: s 275
SJ v HM Advocate  HCJAC 18 (28 April 2020) is the latest in the plethora of appeals about s 275 of the Criminal Procedure (Scotland) Act 1995, the “shield” legislation to protect complainers from being questioned about their sexual history. This case is notable for the partially dissenting judgment by Lord Malcolm in a very thorough and thoughtful opinion.
In almost all rape cases these days the parties are known to each other to some extent, and brief evidence of any friendship/relationship/context is necessary for the jury to understand the case.
The accused faced trial on charges of sexual assault and rape under the 2009 Act, and a related charge of attempting to pervert the course of justice by disposing of his mobile phone. The sexual offences were alleged to have occurred on the night of 11 and 12 January 2019.
The s 275 application sought to lead evidence of:
(a) The accused and complainer attempting to book into a hotel on 1 January 2019. The couple were told there were no rooms available but were seen kissing and cuddling in the reception area. It was said they took a taxi to the complainer’s mother’s house where they had consensual intercourse. The complainer’s position was that she had been very drunk after a New Year party and woke up at home fully clothed the next morning. She did not have intercourse.
(b) The complainer and accused consensually kissing and touching each other over their clothing in the livingroom at her home at the time of the allegations in charge 1.
(c) The complainer having consensual intercourse with another man on 12 January, shortly after the alleged offences.
The issues at trial for which the evidence was considered relevant were the complainer’s credibility and reliability, the accused’s defence of consent, and an alternative explanation for the complainer’s distress. It was asserted that the complainer said on 12 January that she had not had a previous sexual relationship with the accused; and that she denied any other recent sexual relationship but following her complaint and examination by a doctor, DNA from an unknown male was recovered, whom she named in a supplementary statement in September 2019.
The preliminary hearing judge allowed evidence to be heard in respect of paragraph (b) but refused the other requests.
At the appeal hearing the Crown indicated that the complainer had intercourse with another man a day of two prior to 11/12 January, and that it did not propose to lead evidence about the events of 1 January, or that the complainer had shown no interest in the accused sexually and had spurned his advances. It was prepared to agree 10 pieces of evidence about how long the couple had known one another, without going into any sexual details. In light of this the application was amended, restricted to going to the hotel and kissing and cuddling on 1 January, and a narration that the complainer had given a false answer at medical examination on 13 January.
The court was of the view that evidence that the relationship between the complainer and accused had included prior amorous or consensual sexual behaviour of a limited kind was not relevant, especially since the events of 1 January were at some distance from the main charges. As regards the medical examination, the reasons paragraph had not been amended and in light of the new information that intercourse with the other man had taken place beforehand on another occasion, it was held to be irrelevant. The application was refused.
Bail during lockdown?
Part 4 of sched 4 to the Coronavirus (Scotland) Act 2020 inter alia suspends the 140 day solemn time limit for up to six months from 26 March 2020. Bail appeals have been dealt with for many accused persons on remand on a change of circumstances, due to the suspension of the courts except for limited business and the uncertainty when trials, especially jury trials, may take place.
Against that background the case of JD and BK v HM Advocate  HCJAC 15 (3 April 2020) was heard. The appellants, who had appeared on indictment in the High Court, were charged with stouthrief, namely entering the complainer’s house, placing a knife at his throat and robbing him. They had been remanded in custody on 22 July 2019 with an initial time bar of 18 November. At a preliminary hearing on 14 November they intimated their readiness to proceed to trial, which was fixed for 25 March 2020 with the time bar being extended unopposed until 2 April.
On 27 March trial was postponed in light of the COVID-19 pandemic. A new preliminary hearing was fixed for 19 June and the time limit extended until that date. Bail was sought as the appellants had been on remand for a significant period. Both had significant records including previous convictions for theft, assault, robbery and housebreaking.
Refusing the appeals, Lord Carloway set out the following criteria where bail ought not to be granted:
- The accused is charged with a serious offence which, if he were to be convicted would be likely to attract a substantial custodial sentence.
- The nature of the accused’s record, or other circumstances, indicates that if at liberty he would be likely to commit further violent offences (including sexual and domestic abuse) and/or obstruct the course of justice.
The assessment of the judge at first instance “should not lightly be interfered with by the appellate courts”.
Frank Crowe, sheriff at Edinburgh