Crime and punishment – Page 2 – Seán Crossan's Scots Law

Consent?

A recent decision of the Appeal Court of the High Court Justiciary has provided further clarification on the law surrounding the issue of consent in situations where a person is accused of rape.

The decision itself is a classic example of Appeal Court judges interpreting the meaning of statutory provisions.

For many years in Scotland, rape had the following common law definition:

‘… a man having sexual intercourse with a woman by overcoming her will by force‘.

The above definition was later significantly amended by a majority decision of the Appeal Court of the High Court in Lord Advocate’s Reference No. 1 of 2001 2002 SLT 466. The effect of this ruling was the removal of the reference to force in the common law definition of rape. Thereafter, the presence (or absence) of consent to sexual conduct would be a vital issue for the prosecution’s case.

We have also moved on from the situation whereby the victims of rape are not just female. A reading of Section 1 of the Sexual Offences (Scotland) Act 2009 (the relevant legislation), which defines the crime of rape, makes it quite clear that men and women can be victims of this offence.

Section 12 provides that “consent” means “free agreement”. Section 13 states that free agreement is “absent” in certain circumstances, including where the complainer is “incapable because of the effects of alcohol or any other substance of consenting”.

I shall now turn to the case in question.

In GW v Her Majesty’s Advocate [2019] HCJAC 23 HCA/2018/423/XC, Lords Carloway, Menzies and Turnbull confirmed that a person who is asleep cannot give consent that s/he wishes to engage in sexual relations. Furthermore, their Lordships also ruled that such an individual cannot be deemed to have given prior consent to such a course of behaviour.

This appeal occurred because the partner (‘GW’) of a woman claimed that he had not raped her while she was sleeping. Part of his defence was that he had engaged in this type of conduct on previous occasions in the relationship and the woman had not objected to this behaviour. Furthermore, the partner claimed that such conduct was a continuing feature of their relationship and, therefore, as such it established a pattern of prior consent. In other words, the partner had a reasonable belief that the woman had consented to this type of sexual activity.

As previously discussed, the relevant legislation is the Sexual Offences (Scotland) Act 2009. What does consent actually mean? The judges were unambiguous in reaching their decision: a sleeping person is simply incapable of giving consent and, in such a situation, it is not possible for an accused to construe advance or prior notice of consent.

During their deliberations, the judges looked at the purpose of the Sexual Offences (Scotland) Act 2009 and considered evidence which had been presented to at Stage 2 of the passage of the Bill through the Scottish Parliament.

Lord Carloway, the Lord Justice General, in delivering the opinion of the Appeal Court stressed that the wording of Section 1(1)(a) and (b) of the Sexual Offences (Scotland) Act 2009 (which defines the crime of rape) uses the words ‘consenting’ and ‘consents’. These words are in the present tense and, therefore, a previous course of dealings between the parties is not in itself enough to establish that there is prior or actual consent to sexual relations. Consent exists in the here and now when the act of sexual intercourse is being carried out.

Section 14 of the 2009 Act which specifically addresses the issue of consent while a person is asleep is extremely unambiguous in its meaning. Subsection (2) states:

‘A person is incapable, while asleep or unconscious, of consenting to any conduct.’

A link to the judgement of the Appeal Court can be found below:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2019hcjac23.pdf?sfvrsn=0&utm_source=Scottish+Legal+News&utm_campaign=f980cdec20-EMAIL_CAMPAIGN_2019_04_29_12_17&utm_medium=email&utm_term=0_07336e1dbf-f980cdec20-66775629

Copyright Seán J Crossan, 2 May 2019

Scottish Criminal Court Statistics

The first quarterly bulletin detailing criminal court activity was published the week beginning 11 March 2019 by the Scottish Courts and Tribunals Services (SCTS).

The SCTS notes that:

“There were 109,881 first instance criminal cases registered in Scottish courts in 2017/18 which is 25% less than the number of cases registered in 2014/15 and 7% less than 2016/17. Most of the reduction in cases registered is attributable to changes in summary crime rather than solemn crime.”

A link to a commentary on these official statistics can be found below:

http://www.scotcourts.gov.uk/docs/default-source/aboutscs/reports-and-data/criminal-court-statistics/qcc01/scts-quarterly-criminal-court-statistics—bulletin-q1-2018-19.docx?sfvrsn=2

According to SCTS:

“The statistics in this bulletin do not have information relating to accused persons in terms of what they were charged with or their resulting conviction or sentence as there are already well–established National Statistics on these aspects of criminal justice. This bulletin does not cover court cases relating to civil business.“

See the Scottish Government’s website for statistics relating to criminal or civil justice:

http://www.gov.scot/Topics/Statistics/Browse/Crime-Justice

The SCTS goes on to say:

“This is the first bulletin in a new series of quarterly reports on criminal court activity and can be viewed within the ‘Statistics’ section of webpage“:

http://www.scotcourts.gov.uk/about-the-scottish-court-service/reports-data.

Life should mean life?

Photo by Carles Rabada on Unsplash

What does a life sentence for homicide in Scotland actually mean?

Members of the public may scratch their heads when they are reading, viewing or hearing media reports about judges sentencing murderers. Does a 27 year prison sentence represent an adequate punishment in relation to a particularly horrific killing?

I use the figure 27 years quite deliberately because this was the sentence imposed on the murderer, Aaron Campbell, by Lord Matthews at the High Court of Justiciary on 21 March 2019. Campbell was convicted of the abduction and homicide of 6 year old Alesha MacPhail on the Isle of Bute in the summer of 2018.

What perhaps many people fail to realise is that when Lord Matthews imposed the prison sentence on Campbell, for the crime of homicide, this is merely the minimum term which he must serve before he is eligible to apply for parole. It does not mean that Campbell will be released in 27 years. His detention will merely be reviewed. He could be released, but this may well be on licence i.e. subject to very restrictive conditions. Any future Parole Board may well decide that it is not safe or appropriate to release this individual back into society in July 2045- or ever for that matter. The Parole Board May conclude that Campbell can never be rehabilitated.

In a previous post published on 4 March 2019 (Commit the crime, do the time?), I highlighted the fact that judges must work within sentencing guidelines laid down in legislation or developed by the Scottish Sentencing Council. Lord Matthews is a very experienced and senior member of the High Court of Justiciary and would have been well aware of these factors when sentencing Campbell.

A link to a BBC article about the sentencing of Aaron Campbell and footage of Lord Matthews’ sentencing statement can be found below:

Alesha MacPhail murder: Life sentence for Aaron Campbell after he admits guilt

Aaron Campbell was told that he would have to serve at least 27 years before he could apply for parole.

Lord Matthews’ sentencing statement can also be read on the website of the Judiciary of Scotland:

http://www.scotland-judiciary.org.uk/8/2163/HMA-v-Aaron-Campbell

Crime and … kindness?

An interesting article from BBC Scotland today concerning the visit to this country of two American judges. Nothing unusual or out of the ordinary about this you might retort. Cultural and professional exchanges can be numbered in the thousands every single year.

What’s really interesting about this visit is that the judges – Victoria Pratt and Ginger Lerner-Wren have been invited to Scotland by Community Justice Scotland, a publicly funded body, where they are hoping to meet hundreds of people who deal with the Scottish criminal justice system.

The two judges are keen to emphasise that there should be more compassion in the criminal justice system when dealing with offenders. They point to impressive results in the United States – a New York court alone has seen a dramatic decrease of 20% in youth crime and a 10% reduction in crime overall by using radical methods to deal with offenders. One of the judges, Ginger Lerner-Wren established one of the first mental health courts anywhere in the world. The aim of this court (based in Florida) was to promote treatment of offenders as an alternative to traditional forms of punishment. Judge Pratt, on the other hand, specialises in “procedural justice”.

What is procedural justice?

According to the BBC article it means “that if people before the courts perceive they are being treated fairly and with dignity and respect, they’ll come to respect the courts, complete their sentences and be more likely to obey the law.”

Readers of this blog will be aware that in an earlier entry (The Demon Drink), I drew attention to Glasgow Sheriff Court’s Alcohol Court where a difference in approach to crimes involving alcohol and domestic violence is being pioneered. It is in this kind of tradition that the American judges are working.

A link to the article on the BBC website can be found below:

The ‘kindness’ judges turning courts inside out

Two top judges are in Scotland to share expertise on “procedural justice” which encourages respect in court.

A link to the website of Community Justice Scotland can be found below:

https://communityjustice.scot/