Her Majesty’s Advocate v. SM [2019] HCJAC 39

Note of appeal under section 107A(1)(a) and 110(1)(e) of the Criminal Procedure (Scotland) Act 1995:- The respondent was indicted in relation to a charge of abduction, assault and rape of his former partner, SP, between 1 and 31 March 2007, at various addresses in Dumfries, the roads between Dumfries to Dalbeattie and an industrial area near Dalbeattie. The indictment included a docket stating that the Crown intended to lead evidence of an incident on 20 September 2014 in Romford, Essex, where the respondent raped JT. The complainer in the charge spoke about an incident which had occurred 7 years before the incident referred to in the docket. The complainer referred to in the docket gave evidence of an incident in Romford when she was raped in similar circumstances to those described by SP. She stated the respondent made her perform oral sex on him before becoming upset and saying “Look what I’ve done, I’ve traumatised you for life” and then proceeded to have sexual intercourse with her. The complainer in the charge described the respondent, who she was in a relationship with at the tine, assaulting her and then apologising to her before putting her in his car, taking a lengthy route to Dalbeattie during which the complainer was crying and shouting for him to let her go and attempting to grab the steering wheel and the handbrake. As the complainer had not seen the respondent like this before she decided to try and calm the situation down by telling him that she loved him. The respondent stopped the car near Dalbeattie and asked her “what next?” To which the complainer said that she had “agreed to sleep with him”in an attempt to further placate the respondent she “probably started it”. During examination in chief when asked why she had had intercourse with the respondent she referred to the earlier Dumfries incident and stated:- “because I didn’t know what was gonna happen ... I had already been dragged through Dumfries ... I was nowhere near my mum’s. I couldn’t walk home. I wasn’t going to poke a bear with a stick.” Under cross-examination the complainer confirmed that when she had given a statement to the police around years years before she had stated:- “Right come on let’s have sex” to reassure him and to enable her to go home and that she “agreed to sleep with him in the car because I just wanted to go home, so I slept with him” and that “I consented not because I wanted sex ... but just to calm him down”. A ‘no case to answer’ submission in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 was made at the close of the Crown case which was based:- (1) on a contention that the complainer’s evidence did not amount to a rape in that she had said she consented to intercourse, that there was no evidence of force or that the complainer feared violence once in the car; and (2) mutual corroboration could not operate to provide a sufficiency, due to the differences between the evidence relating to the charge and that relating to the docket. The trial judge sustained the submission in relation to the issue of consent and, because of that, the trial judge did not deal with the secondary submission relating to the doctrine of mutual corroboration. The Crown appealed against the decision of the trial judge. Here Lord Brodie provided an exposition of the development of the law of consent. It was stated that the meaning is consistent with definition of “consent” as “free agreement” now enacted in section 12 of the Sexual Offences (Scotland) Act 2009, however, that was what was understood to be meant by consent under the pre-existing common law so an agreement is not free if it only arises as the result of pressing circumstances brought about by the acts of the other party and consent is not present in those circumstances. Taking the Crown case at its highest, the court was of the view that there was sufficient evidence from which the jury could infer a lack of consent from the complainer’s evidence of what had taken place. In particular, the court pointed to her description of what had taken place in Dumfries, the car and at the premises in Dalbeattie all of which amounted to a continuing crime involving assault, abduction and rape and, given what was described, it was a matter for the jury to decide whether a captive having intercourse with her captor in such circumstances should be classified as consensual intercourse. As such, the the appeal was allowed and the case remitted to proceed as accords, albeit, the court observed it was a pity that the second element of the ‘no case to answer’ submission had not also been dealt with as it may require to be argued and form the subject of a separate appeal.