G.W. v. Her Majesty’s Advocate [2019] HCJAC 23

Appeal under section 74 of the Criminal Procedure (Scotland) Act 1995:- The appellant faced an indictment including a charge of the rape of a woman whilst she was asleep and incapable of giving or withholding consent contrary to section 1 of the Sexual Offences (Scotland) Act 2009. A special defence of consent was lodged which stated that the appellant engaged in sexual intercourse with the consent of the complainer and when he reasonably believed her to be consenting and the special defence included the following narrative:- “It was the practice of the parties ... that on occasion [the appellant] would waken [the complainer] ... by penetrating, or attempting to penetrate her vagina with his penis. [The complainer] consented to being awoken in this way”. At the Preliminary Hearing it was said on behalf of the appellant that consent had been given at the start of the relationship and had never been withdrawn and such sexual activity of penile/vaginal penetration whilst the complainer was asleep was a continuing feature during their relationship. The judge at the PH took the view that the use of the present participle “consenting” in section 1 of the 2009 Act meant that the consent had to be continuing for the conduct not to constitute rape and in terms of section 14 of the 2009 Act consent could not be continuing when a complainer was unconscious and, as such, there could be no defence of “prior consent” as was being put forward in the present case. The judge refused an application under section 275 to permit evidence to the effect that the complainer had consented to being woken by vaginal penetration during the relationship. The appellant appealed against the decision of the PH judge and the court here considered the issue of whether, in terms of the Sexual Offences (Scotland) Act 2009, a person can consent in advance to having sexual intercourse whilst asleep. It was submitted on behalf of the appellant that section 12 of the 2009 Act was silent both on how free agreement was to be expressed and when that free agreement was to be expressed and in the present case the relationship between the parties involved the complainer having granted consent in advance. It was submitted that to prevent the leading of such evidence and to read the section in the manner suggested by the Crown would result in the criminalisation of an element of human relations which was not the purpose of the 2009 Act. On behalf of the Crown it was submitted that the PH judge had been correct to interpret the unambiguous meaning of section 14 in the way he had, namely, not to allow for free agreement to be given in advance as consent could not be given to sex in general in an open ended way, rather consent had to relate to conduct at a specific time and place. It was submitted that if such consent could be given in advance then it would not be capable of being withdrawn as the person would be asleep. Here the court refused the appeal. The court provided a full exposition of the development of the crime of rape in Scotland, together with a consideration of the crime of rape in England and Wales and other Commonwealth jurisdictions. The court agreed with the PH judge that consent given at a time remote to the conduct in question cannot provide a defence in light of the statutory provisions of the 2009 Act, in particular, that what is required by section 1(1)(b) is that the act is committed without the other person “consenting” and without a reasonable belief that she “consents” both of which indicate that the consent requires to be given at the time of the relevant sexual conduct. In a postscript the court stated that in cases where a special defence of consent is to be lodged it is not to be used as a vehicle to provide the jury with a narrative of an accused’s account but, rather, should be restricted to stating that the complainer consented to the conduct libelled or that the accused had a reasonable belief that she had consented to that conduct.