Rapist who claimed prosecutors acted ‘oppressively’ loses appeal against conviction
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ed. Whether the appellant had administered a drug to her had very little, if any, bearing on that central issue. In so far as the jury may have been given an impression of the Crown’s lingering suspicion, that could only have had a conceivable bearing, as reflecting on the appellant’s character, if the appellant’s own credibility and reliability had been put in issue. It was not. For all these reasons, the appeal against conviction is accordingly refused.”
However, the judges added there was a “troubling aspect” about the way in which the jury were asked to proceed by both counsel and the trial judge, having regard to the appellant’s purported special defence that the complainer consented, or that he reasonably believed she consented.
Lord Carloway said: “Regrettably, both the advocate depute and the trial judge appear to have fallen into the same error of thinking that the appellant’s ‘position’ was one of consent or reasonable belief…
“Where no evidence is led of such a ‘position’ or of facts from which it can reasonably be inferred, no amount of cross-examination or references to it in a speech to the jury or elsewhere make it so.
“Again…there was no evidence that sexual intercourse had taken place whilst the complainer was awake and an active, willing participant. The jury ought not to have been given any other impression of the state of the proof.”
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