Crown wins rape case appeal against ‘no case to answer’ ruling on complainer’s ‘consent’ 

Lord Carloway
Lord Carloway

The Crown has successfully appealed against a trial judge’s decision to sustain a “no case to answer” submission by a man accused of the abduction, assault and rape of his partner, who had given evidence that she “consented” to sex “but just to calm him down”.

The trial judge had held that the complainer’s testimony did not amount to rape because she had said she consented, but the Appeal Court of the High Court of Justiciary ruled that it was a matter for the jury to decide whether a woman being held captive could be considered to have consented to intercourse.

In a separate appeal, the Crown’s challenge to the judge’s decision to uphold a second “no case to answer” submission, on the basis that there was “insufficient evidence” for the doctrine of “mutual corroboration” to apply, was refused.

‘No case to answer’

The Lord Justice General, Lord Carloway, sitting with Lord Brodie and Lord Turnbull, heard that the respondent “SM” was charged with the abduction, assault and rape of “SP”, his then partner, on an occasion between 1 and 31 March 2007, at addresses in Dumfries, the roads from Dumfries to Dalbeattie and an industrial area near Dalbeattie. 

Appended to the indictment was a docket, which stated that the Crown intend to lead evidence of an incident on 20 September 2014 in Romford, Essex, where the respondent assaulted and raped another woman who was a stranger to him.

The court heard evidence from the complainer in the docket that she had been walking home from a nightclub at about 4am she became aware of running footsteps behind her.

She turned and was suddenly punched on the face by a man in a “hoody”, who carried her to a rugby club, where the events libelled took place.

The complainer in the charge then gave evidence about an incident which had occurred some seven years earlier, when she was in a relationship with the respondent.

Following a night out together at a nightclub in Dumfries the respondent punched the complainer and forced her into a car, and that during the journey towards Dalbeattie she had been crying and shouting for him to let her go, while also attempting to grab the steering wheel and the handbrake.

She had never seen the respondent in this state before, but in order to calm the situation down she told the respondent that she loved him and “agreed to sleep with him”.

In cross-examination the complainer’s statement to the police, which she gave some seven years later, was put to her, in which she said: “I consented not because I wanted sex … but just to calm him down”.

The respondent made a no case to answer submission which was based, first, on a contention that the complainer’s testimony did not amount to a description of rape because she had said that she had consented to intercourse.

The trial judge agreed, as she did not consider that the testimony demonstrated a lack of consent.

The Crown’s position appeared to be that, although the complainer had said that she had consented, she was “not really consenting”, but there was no evidence from her of any fear of violence after the car had stopped near Dalbeattie.

The appellant had intended to make a second submission to the effect that mutual corroboration could not operate to provide a sufficiency, presumably because of differences between the evidence relating to the charge and that relating to the docket, but the trial judge decided not to deal with this submission, given her decision on consent.

‘Lack of consent’

The Crown appealed, and the judges quashed the decision.

In a written opinion, the Lord Justice General said: “The issue is whether, taking the evidence of the complainer at its highest, the jury could infer a lack of consent as a matter of fact. There is enough from the complainer’s description of the whole circumstances for that inference to be drawn.

“She was effectively being held captive. The complainer explained that she agreed to have intercourse, not because she wanted to, but because, not unreasonably, she felt that she had to agree in order to defuse the situation.

“It is a matter for the jury to decide whether a captive having intercourse with her captor in such circumstances is to be classified as consensual intercourse or not. There is ample scope for holding that it is not, and that what occurred constituted the crime of rape.

“That is so, even if the respondent has a basis for arguing that he had an honest belief that the complainer was consenting.”

However, having remitted the matter to the High Court, the trial judge sustained a further no case to answer submission, on the basis that there was insufficient evidence of rape because, contrary to the Crown’s contention, the complainer’s testimony relative to the charge could not be corroborated by the evidence of the different complainer who featured in the events libelled in the docket.

The Crown appealed again, arguing that the trial judge erred in her assessment of the evidence.

While it was accepted that there was differences in the circumstances of the two incidents, there were “striking similarities” which were sufficient for the jury to be able to decide whether an “underlying course of conduct” had been established.

‘Mutual corroboration’

Refusing the appeal, the judges observed that it was apparent from this case, and many others in recent years, that “despite what seem to be clear statements from the court, parties are experiencing continuing difficulties in the application of mutual corroboration in sexual offences cases”.

In his written opinion, Lord Carloway said: “The principle to be applied is nevertheless clear. In any case in which mutual corroboration is relied upon, the court is looking for ‘the conventional similarities in time, place and circumstances in the behaviour proved in terms of the libel … such as demonstrate that the individual incidents are component parts of one course of conduct persistently pursued by the accused’.

“In a case where there are similarities as well as dissimilarities, it has been said that a submission of insufficient evidence should be sustained only where ‘on no possible view could it be said that there was any connection between the two offences’.

“It is not enough simply to catalogue some similarities between two crimes, and to dismiss others, for mutual corroboration to apply. There requires to be an overall similarity in the conduct described in the offences such as identifies it not just as constituting separate criminal episodes, but as ‘component parts of one course of conduct persistently pursued by the accused’.”

The circumstances of the two episodes in this case were “far removed” from those which might be put into that context.

Lord Carloway added: “The charge involves a complainer who was a long-standing partner of the respondent.

“The circumstances immediately prior to the intercourse involved the complainer attempting to appease the accused, who was in a violent mood, by agreeing to have intercourse with him, albeit in circumstances which this court considered the jury could categorise as, in practical terms, one of captivity, notwithstanding that the complainer did not describe it as such.

“The second episode occurred over seven years later and 350 miles away. It involved persons who were strangers to each other. The initial assault, and physical abduction by carrying, was with intent to rape. There was no question of the complainer agreeing to sexual activity as a form of appeasement.

“In these circumstances, on no possible view could the two episodes be regarded as component parts of a single course of conduct persistently pursued by the respondent.”

© Scottish Legal News Ltd 2019

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