Maqsood v Her Majesty’s Advocate [2018] HCJAC 74

Maqsood v Her Majesty’s Advocate [2018] HCJAC 74 was an appeal to the High Court of Justiciary against conviction for rape, heard by the Lord Justice General, Lord Menzies and Lord Turnbull, which was refused after the court clarified that although the trial judge’s directions had been erroneous in several respects, those errors were in the appellant’s favour and caused no miscarriage of justice.

Mr Maqsood was convicted on 7 November 2017 at the High Court in Glasgow of a charge which libelled that on 5 December 2016, in a motor vehicle at a parking area in Thornliebank, he assaulted the complainer and whilst she was intoxicated with alcohol and thus incapable of giving or withholding consent, seized her by the hair and body, penetrated her vagina and her mouth with his penis and thus raped her, contrary to section 1 of the Sexual Offences (Scotland) Act 2009. On 1 December 2017 the trial judge imposed an extended sentence of eight years with a custodial element of six years.

The complainer and her friend, both aged eighteen, had spent the evening in two public houses in Glasgow. They had consumed food and two or three vodkas at lunch, then attended another pub in Shawlands from about 7.00pm where they consumed many vodkas and shots of tequila. According to both women, they were very drunk. The friend thought they had had about twelve drinks each, an estimate supported by bar staff, although neither woman had been refused service. During the evening, the friend had arranged for a person called Omar to deliver cannabis to her at the pub, and the complainer had seen this transaction taking place at his car outside. They left the pub at about 11.30pm. CCTV cameras pictured the women being ushered out by the barman. A taxi rank was nearby. The women tried to get back into the bar to use the toilet. They failed, so the complainer relieved herself in the doorway. The women then stayed on the pavement outside. The complainer stumbled and fell, then stood up and sat down on the pavement.

CCTV captured the appellant parking his car opposite the pub, performing a U-turn and stopping close to it. Both women went to the car and got in. The complainer maintained she thought it was Omar’s car. The friend thought it was a taxi, although it had no official markings. The friend was dropped off near her home, which had only been a short distance away. She was in such a state that she could not get in and was picked up by the police, sitting in the street, and taken to the police station where she stayed overnight. The complainer said she had no memory of the friend being dropped off. She recalled the car stopping and the appellant grabbing her hair, pulling her head towards his lap and forcing his penis into her mouth. She had shouted “no” and “stop”. She said she had been very upset. He had then thrown her onto the back seat. She said she had been hysterical and scared and aware that something else had happened, but could not remember what. It was agreed by Joint Minute that the appellant had had sexual intercourse with the complainer in the car. The car drove off, stopped, and she was told to get out. Her boyfriend and his mother were waiting for her. Although she had a jacket on, she had no bra or top. She had had these clothes on when she got into the car. She had her trainers on but had lost her shoes.

The complainer’s boyfriend said that when she had failed to return home, he and his mother went to the pub, which was shut. They attempted to phone the complainer several times but got no reply. She eventually answered at a point when she must have been in the car. She was hard to understand. A male person had taken the phone and said she would be home in five minutes. The boyfriend and his mother went back out to look for her and found her in the street in tears. She could not get her words out. She was wearing her jacket but had no clothes on her top. They took her home, where she was still very upset and drunk. The boyfriend’s mother confirmed his account. On being medically examined, the complainer was found to have bruises on her arms and legs. She was still wearing a tampon, as she had been menstruating. Although a high vaginal swab yielded semen from the appellant, the complainer, when interviewed by the police, could not remember having had intercourse and had been very upset because of this. She said she had been too drunk to consent. The first police officer spoke to her at about 2.30am and said she remained distressed. A toxicologist gave evidence that, on a back count of her alcohol reading, she had “probably” had enough drink to be visibly affected by it.

The appellant gave evidence that he had been working as a delivery driver and was on his way home when he stopped to make phonecalls. He had turned his car to go to a shop to buy milk. He had not noticed either the complainer or her friend until they got into his car. They had asked to be dropped off “up the road”. The complainer did not get out with her friend and had asked to go to a party. He had driven to a retail park. They had sat and talked. After about half an hour, the complainer had suggested giving the appellant oral sex and did so. The appellant had then driven off. The complainer removed her top and began to give him oral sex again whilst he drove the car. When he stopped at a set of traffic lights, she had sat astride him and had intercourse. At some point, the complainer had spoken to her boyfriend on the phone. He had taken the phone and said she would be home in five minutes. The complainer had left clothing in the appellant’s car. The appellant had gone to a twenty-four hour gym, where he had washed and put the clothes in a charity skip.

The trial judge gave the jury the standard general directions on the onus and standard of proof and corroboration. She directed the jury that if they believed the appellant, then they would be bound to acquit, and that the same result would follow if his evidence provided a reasonable doubt. The judge defined rape as consisting of penetration, without the other person’s consent and without the accused having any reasonable belief that the person consented. She directed the jury that all three elements had to be proved by corroborated evidence. In relation to consent, she reminded the jury that the Crown’s position had been that the appellant had forced his penis into the complainer’s mouth and that vaginal intercourse had occurred at a time and in a way that the complainer could not describe because of the state she had been in. If that was proved, the judge said, that showed there had been no consent and no reasonable belief that there had been consent. She directed the jury that there had to be no reasonable belief that the complainer was consenting, but that “all of the evidence is relevant to more than one thing”. The judge said the Crown’s position was that the complainer was so drunk that the appellant must have known she was incapable of consent, whereas the appellant had said she was capable of walking and talking and he had thought there was consent because of what she had said. The judge said: “So he says that he did have a reasonable belief that, for a start, she was capable of consenting and, for a second, that she did.”

Specifically in relation to the absence of consent because of drink, the judge directed the jury to look at evidence from both women about what they said they had to drink and evidence from independent people about how much drink they were served in the pub, together with the toxicologist’s evidence about the likelihood of there being some noticeable effect of drink, some obvious intoxication. The judge referred to other medical evidence about bruises on the complainer’s body, which were consistent with a number of things, for instance being held firmly, as well as pressing hard against some part of a wall or a car, and the CCTV showing the complainer falling over in the street. The judge directed the jury that they had evidence to consider about distress: the complainer’s evidence about getting out of the car and being upset, the CCTV apparently showing her limping, the fact that she was half clad with her outdoor jacket but nothing on underneath it, and evidence from the complainer’s boyfriend and his mother about when they found her that she was distressed. The judge said the jury could use evidence of distress when it was seen by somebody other than the distressed person as evidence which could corroborate what the distressed person said, so if they accepted the evidence from the boyfriend and his mother, then they could hold that she was distressed and that could be for a variety of reasons but one of the reasons could be that something she had not consented to had happened to her. The judge also directed the jury that they needed to think about corroboration of whether there was no reasonable belief that she consented to sex. The judge said a person should not just assume there was consent; either there needed to be actual spoken consent or actions from which consent could readily be inferred. The Crown argued it must have been very obvious to the appellant that the complainer was very drunk and that he took advantage of her because of that, whilst the defence asked the jury to accept the appellant’s account that the complainer did know what she was doing and was an active participant.

The ground of appeal was that the trial judge misdirected the jury on distress. The judge had said distress could corroborate what the distressed person said, including that she had not consented to what had happened. Mr Maqsood argued the judge erred in failing to direct the jury that distress could only be used to corroborate the mens rea of the appellant or, if corroboration of that was not required, to inform the jury of that mens rea, only if the jury were satisfied that the complainer was distressed at the time of the incident. It was necessary for the jury to understand the significant limitation on the evidential value of post-incident distress. The jury had to find corroboration of the appellant’s lack of reasonable belief. Mr Maqsood submitted there was a tension between the proposition that in some cases the requirement for corroboration of lack of reasonable belief was unnecessary and dicta in Winton v Her Majesty’s Advocate 2017 SCCR 320, and that this tension was reflected in the trial courts. He invited the court to convene a full bench to consider the matter further.

The advocate depute argued that the trial judge’s charge had to be read as a whole and had covered all the necessary elements. The case was ultimately straightforward. The Crown case was that the complainer was incapable of giving consent because of her intoxication. The charge libelled a single continuing offence in breach of section 1 of the 2009 Act. No direction on corroborating the absence of reasonable belief had been required. This was not a “middle ground” case. The evidence of the complainer’s intoxication led to an inference that there was a lack of reasonable belief.

The court held that the issue before the jury was whether, as the complainer maintained, the appellant had had intercourse with her whilst she was incapable of consent as a result of the effect of alcohol. The court assumed for the purposes of its opinion that this was primarily a case in which the Crown maintained the complainer was so intoxicated that she could not consent, whereas the appellant’s version was that the sexual conduct had not only been entirely consensual, it had also been initiated by the complainer. The court explained that in Graham v Her Majesty’s Advocate 2017 SCCR 497 the court had explained that although an absence of belief was an essential element of the crime of rape, it did not require “formal proof”, meaning that it did not require to be established by corroborated evidence. Whether an accused had or did not have a reasonable belief was an inference to be drawn from proven fact, such as the use of force or signs of obvious intoxication. The accused’s mental element did not require to be supported by corroborated testimony. The model directions provided that it was only intentional penetration and lack of consent that required corroborated evidence. However, the court recognised that the phraseology of the opinion in Graham may have been interpreted as meaning that in some cases in which reasonable belief was a live issue, there did require to be corroborated evidence of a lack of reasonable belief and thus a direction on that matter. That was not what was intended. Rather, the court was simply attempting to say that no direction on reasonable belief was required unless that issue was live. It so happened that the specific direction in Graham, with which the court was dealing, was one relating to corroboration.

The court held that, putting matters in reverse order, first, although a judge ought to continue to direct a jury that the definition of rape includes an absence of reasonable belief, no further direction on reasonable belief is required unless that is a live issue at trial. That issue will be live only in a limited number of situations in which, on the evidence, although the jury might find that the complainer did not consent, the circumstances were such that a reasonable person could nevertheless think that she was consenting. That does not normally arise, for example, where an accused describes a situation in which the complainer is clearly consenting and there is no room for a misunderstanding. Secondly, the court held that it is only intentional penetration and lack of consent that require to be proved by corroborated evidence. In a case, as here, where intercourse is admitted or otherwise proved, and the Crown contended that the complainer was incapable of consent as a result of the effects of alcohol, that incapacity does require formal proof. It will be proved where the complainer speaks to such a state, as the complainer did here, and there is supporting evidence of that state. The corroboration in this case came from the evidence of the complainer’s friend, the bar staff, the CCTV recording and the complainer’s boyfriend and his mother. In this situation it is the complainer’s state of intoxication, rather than any distress, that is important. If it is held that the complainer could not consent because of the effects of alcohol, that is all that is required as a matter of sufficiency. The jury would still have to consider an accused’s evidence that the complainer was not so incapacitated through drink that she could and did consent, but that is another matter.

The court held that the trial judge’s directions were accordingly erroneous in a number of respects, notably on both absence of reasonable belief and the need to provide corroborated evidence of that absence. These directions were entirely in favour of the appellant. They did not cause any miscarriage of justice. The jury’s verdict, based on the complainer’s intoxication, would have been almost inevitable standing the state of the proof. In short, the appeal was refused because the misdirections on reasonable belief and corroboration favoured the appellant and the verdict, properly founded on evidence of the complainer’s incapacity through intoxication, was inevitable on the evidence.