David Briggs v. Her Majesty’s Advocate [2019] HCJAC 63

Note of appeal against conviction:- On 3 May 2018, at the High Court, the appellant was convicted after trial of two charges relating to the sexual abuse of members of his family. Charge 1 was a charge of rape relating to his cousin perpetrated on 27 October 2006. On 31 May 2018, following the obtaining of a Criminal Justice Social Work Report, the appellant was sentenced to a cumulo sentence in relation to both charges of 5 years and 6 months imprisonment. The appellant appealed against his conviction in relation to charge 1 on the grounds that there was insufficient evidence in relation to it. At the close of the Crown case a ‘no case to answer’ submission was made in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 on the basis that:- (1) the complainer did not say that she was not consenting, only that she did not want it to happen; (2) the complainer did not give evidence that the appellant would have known that she was not consenting, and she had not been cross-examined deliberately by senior counsel on that point; (3) there was no independently verifiable evidence of distress; and (4) there was insufficient evidence that the appellant had the necessary mens rea for the charge of rape. The trial judge repelled the submission and the appellant was subsequently convicted of the charge (along with the further charge). The trial judge in his report to the court noted that senior counsel had accepted that the complainer’s body language and demeanour could have been enough to indicate lack of consent and, as such, was a matter for the jury and there was sufficient evidence to allow them to decide whether the complainer had given her consent and, if not, whether the appellant had nonetheless had an honest belief that she had consented. At the appeal hearing it was accepted on behalf of the appellant that there was sufficient evidence of lack of consent on the part of the complainer for that question to be left to the jury, however, it was maintained that there was insufficient evidence of the absence of an honest belief on the part of the appellant that the complainer was consenting to what he was doing. It was submitted that there was no evidence that the complainer communicated a lack of consent to the appellant or that the appellant ought to have known that she was not consenting. It was further submitted that the trial judge had misunderstood senior counsel’s concession about body language/demeanour. It was accepted that in principle body language/demeanour could communicate a lack of consent and could therefore be relevant to the question of whether a person could have an honest belief that the other person was consenting but that, in the present case, it was not accepted that the complainer’s body language and demeanour could have been enough to indicate lack of consent. It was submitted that there was no evidential basis on the evidence led for the jury to conclude that the appellant did not have the necessary reasonable belief. On behalf of the Crown it was submitted that the evidence provided by the complainer and her description of the appellant’s conduct provided sufficient evidence from which it could be inferred that the complainer was not consenting and that the appellant would have been aware of that at the time, particularly given the context of his prior relationship with her. It was further submitted that in viewing the complainer’s evidence as a whole there was a clear pattern of the complainer seeking to avoid the appellant and his persistent conduct in trying to control and abuse her despite her often expressed unwillingness. The appellant’s abuse of the complainer over a number of years was relevant in considering examples of apparent acquiescence which were indicative of a lack of genuine consent. Taking the Crown case at its highest it was submitted that the evidence allowed an inference to be drawn that the complainer was not consenting and that the appellant would be aware of that fact and were matters that ought properly to be left to a jury to consider. It was also submitted that it had not been the appellant’s position put in cross-examination to the complainer that he had had sexual contact with the complainer with her consent or at any rate in the honest belief that she was consenting but rather his position was that none of the conduct had happened at all. It had been the complainer’s position that the sexual assault was violent and painful and, as such, the issue of consent and reasonable belief in consent did not arise. The court refused the appeal. The court considered that the trial judge was correct to repel the ‘no case to answer’ submission there being sufficient evidence from which a reasonable jury could have inferred that the complainer was refusing to consent and also that the appellant must have realised that she was not consenting. The court considered that, whilst there were parts of the complainer’s actions which could have indicated that she was consenting to certain sexual activity, taking the Crown case at its highest, there was sufficient evidence about her body language to entitle the jury to conclude that she was, not only not consenting, but that she made that clear to the appellant. The court also pointed to the evidence led in relation to the docket which the court described as showing “a history of unwanted sexual advances by the appellant over a period of years ... which advances were rebuffed by the complainer in a manner which must have made the appellant aware that his attentions were unwelcome...”. The court posed the question how the appellant could have believed that the complainer was then consenting on the date libelled? The court considered that whilst the complainer may have changed her mind that was a matter for the jury and whilst there were aspects of the complainer’s conduct which may have suggested she was consenting to certain sexual activity that may have been a symptom of acquiescence on the part of the complainer when faced with such persistent conduct by the appellant and such conduct did not amount to genuine consent and the appeal was disposed of for those reasons. The court also considered that the Crown submission that the question of honest belief was not a live issue in the case in light of the appellant’s position at trial and was therefore not required to be negatived by the Crown was a good one.