Stewart Winton v. Her Majesty’s Advocate [2016] HCJAC 19

Note of appeal against conviction:- The appellant was convicted after trial at the High Court of a charge of rape, contrary to section 1 of the Sexual Offences (Scotland) Act 2009. He was subsequently sentenced to 4 ½ years imprisonment. The appellant appealed against his conviction on the grounds of alleged misdirections of the trial judge in her charge to the jury on the issue of the appellant’s reasonable belief in relation to the complainer’s capacity. The circumstances of the case were that the complainer was incapable, as a result of mental disorder, of consenting to the conduct narrated in the charge in terms of section 17(2) of the 2009 Act. At the trial the appellant’s position was that he reasonably believed that the complainer had in fact consented. Counsel for the appellant in his speech stated that the Crown had not excluded the appellant as having a reasonable belief in consent and the Crown also required to exclude that the appellant had an honest belief that the complainer was capable of consenting. The trial judge directed the jury that the Crown required to establish:- “that there was no reasonable belief on the part of the accused that she was consenting and, in this instance, incapable of consent.” Here it was submitted on behalf of the appellant that the judge had erred in that direction. It was submitted that in relation to his belief that the complainer had the capacity to consent, the law only required that the belief be honest. It was further submitted that where a complainer without capacity appeared to consent the Crown required to exclude that the accused had an honest belief that she had the capacity to do so, which amounted to a two stage test, namely, belief as to consent which had to be reasonable and belief to capacity which did not. On behalf of the Crown it was submitted that there was no such two stage test and section 1 of the 2009 Act specified what was required under the ‘new’ statutory regime to prove a charge of rape. It was further submitted that where section 17 applied the complainer could not consent and there was no requirement to exclude a belief in capacity. Here the court refused the appeal. The essential element of the absence of consent was established from proof that the complainer was incapable of consent in terms of section 17 of the 2009 Act. Where a complainer comes within the terms of section 17 that complainer is not capable of giving consent. The offence was committed in the present case when there was penile penetration without that person’s consent and without any reasonable belief that the person consented and by virtue of section 17 applying the Crown did not need to prove lack of consent. Where section 17 applied the issue for the jury was whether the Crown could exclude a reasonable belief as to consent and there was no separate requirement to exclude a belief in capacity. The court noted that the terms of sections 1-9 of the 2009 Act provides that an absence of reasonable belief in consent on the part of an accused is an essential part of the offence to be proved by the Crown. The court here considered that any suggestion of an honest but unreasonable belief was inconsistent with the concept of the 2009 Act.