BIN MENS REA&2 TYPE OF RAPE/LETS CHANGE RAPE LAW IN SCOTBIN YER MENS REA & 2 TYPES OF RAPE, LETS CHANGE THE LAW OF RAPE IN SCOTLAND
There is, in my opinion, a long and consistent history of intervention by the Lord Advocate and High Court, when the opportunity arose, to correct an error that had entered the law in circumstances in which the established law had previously been clear, well understood and repeatedly applied. I feel I have demonstrated below with reference to the in-point and legally binding authorities, there has been the misapplication of the Law of Rape and the application of the Moorov doctrine in such context in the Kearney case.
I belief there is sufficient cause shown in the ‘public interest’ and ‘interests of justice’ for the Lord Advocate to make a Reference in this regard given the new dimension and conflict in this Kearney decision. Terms of reference wise, this should be benchmarked against the material fact, judges and institutional writers have concluded as a matter of well established practice and custom that there were two distinct types of Rape and an essential need to suitably and sufficiently address mens era in all non-forcible types of rape trial judge summing up to jurors.
Under articles 6, 13 and 14 of the Convention, the populace of Scotland have a legitimate expectation that it is in the ‘public interest’ and ‘interests of justice’ that no accused person should be subject to less favourable treatment during a trial by jury. No Scottish litigant should be subject to a judge lottery resulting in a Trial Judge not instructing a jury in accordance with the law of Scotland. It is the law that applies at the time; it is not the task of any appellate body to judge facts afresh or over-rule legally binding precedents; and if there is ‘conflict in the law’ these fall out-with the authority of a three-judge bench sitting, which Lady Cosgrove, Lady Smith and Lady Paton should be fully conversant with.
This paper has been produced to highlight the evolution of the Law of Rape in Scotland to become more aligned with EU and UN guidelines and recommendations. The mere fact that a Lord Advocate Reference No.1 in 2001 was required to clarify the law as it stood, is supportive of the identified need to revisit this given the conflict in the law following the three-judge sitting in the case of Kearney.
International guidelines and recommendations on Rape
In recent years there have been various guidelines and recommendations from international human rights organisations in regard to rape and sexual violence. One view that is advanced is that the offence of 'rape' should be replaced with a broader offence of 'sexual assault'. For instance, the Handbook for Legislation on Violence against Women from the UN Department of Economic and Social Affairs Division for the Advancement of Women gives these suggestions about legislation on sexual violence:
• Define sexual assault as a violation of bodily integrity and sexual autonomy;
• Replace existing offences of rape and “indecent” assault with a broad offence of sexual assault graded based on harm;
• Provide for aggravating circumstances including, but not limited to, the age of the survivor, the relationship of the perpetrator and survivor, the use or threat of violence, the presence of multiple perpetrators, and grave physical or mental consequences of the attack on the victim;
• Remove any requirement that sexual assault be committed by force or violence, and any requirement of proof of penetration, and minimise secondary victimisation of the complainant/survivor in proceedings by enacting a definition of sexual assault that either:
Requires the existence of “unequivocal and voluntary agreement” and requiring proof by the accused of steps taken to ascertain whether the complainant/survivor was consenting; or
Requires that the act take place in “coercive circumstances” and includes a broad range of coercive circumstances; and
• Specifically criminalise sexual assault within a relationship (i.e., “marital rape”), either by:
Providing that sexual assault provisions apply “irrespective of the nature of the relationship” between the perpetrator and complainant; or
Stating that “no marriage or other relationship shall constitute a defence to a charge of sexual assault under the legislation.”
Lord Advocate Reference (No.1 of 2001) 2002 S.C.C.R. 435
At the turn of the 21st century, Scotland clarified the Law of Rape whereby there was no longer the need for a conviction of rape that the complainer was subjected to some degree of force or the threat of force, and that the fact that the sexual intercourse took place without her consent was insufficient for a conviction.
This was actioned by way of the Lord Advocate Reference (No.1 of 2001) 2002 S.C.C.R. 435, consisting of a bench of the Lord Justice General, Lord Marnoch, Lady Cosgrove, Lord Nimmo Smith, Lord Wheatley, Lord Menzies and Lord McCluskey, referring for the Opinion of the High Court in terms of Section 123 of the Criminal Procedure (Scotland) Act 1995 on Points of law arising in relation to a charge upon which, on trial in the High Court at Aberdeen there was acquitted Edward Richard Watt.
This reference by the Lord Advocate arises out of the acquittal of the former accused on a charge of rape at the end of the Crown case when the trial judge upheld a submission that there was no case to answer. In upholding that submission the trial judge proceeded on the basis that it was essential that some degree of force was required in terms of the sufficiency of evidence.
The Lord Advocate invited the court to review the law relating to the crime of rape, and to hold that the actus reus consisted of sexual intercourse by a man with a woman who at the time of the intercourse did not consent to it. He went on to submit that the necessary mens rea was that the man knew that the woman was not consenting or was reckless as to whether she consented or not. These submissions, were based in part on opinions delivered by members of the Court in the case of William Fraser (1847) Arkley 280 and in part on the way in which the common law relating to rape should take account of changes in the position of women in the conditions of the present day.
Reference is made to point (7) within the above Opinion of the Court whereby it states,”In Sweenie it was alleged that the accused had had sexual intercourse with a sleeping woman. He was charged under two heads. The first of these was rape. The second was "the wickedly and feloniously having carnal knowledge of a woman when asleep, and without her consent, by a man not her husband". The court held by a majority (Lords Ardmillan, Cowan, Deas and Neaves) that, while the alleged conduct was a serious form of indecent assault, there was not a relevant charge of rape, owing to the absence of the use of force. Accordingly they rejected the view that indecent assault which involved penetration was rape. Thereafter the case of sexual intercourse with a sleeping woman was treated as a form of indecent assault known as clandestine injury…”
This continued in point (9), “The views of the majority as to the law of rape may be gathered from the following passages. At page 137 Lord Ardmillan said: "I am of opinion that force - actual or constructive - is an essential element in the crime of rape; that any mode of overpowering the will, without actual personal violence, such as the use of threats, or drugs, is force in the estimation of the law, - and that any degree of force is sufficient in law to constitute the crime of rape, if it is sufficient in fact to overcome the opposing will of the woman; but it must be force employed to overcome the will, and I do not concur in the proposition maintained by the prosecutor, that the mere bodily contact necessarily implied in the act of connection, is sufficient force to satisfy the legal definition. There is, I think, no authority for such a proposition, and on principle it does not commend itself to my mind.”
At page 143 Lord Cowan said:
"Now, it is of the essence of the crime of rape, that carnal knowledge of the woman's person should be had, forcibly, and without her consent, in other words, by the adverse will of the woman to the act being overcome by force on the part of the ravisher. It is this that constitutes the crime, according to all the authorities, and nothing short of it will support the charge.”
At pages 146-147 Lord Deas said:
"It appears to me that, according to all practice and authority, the libelling of force or concussion, applied either to the person or the will, is necessary, as a general rule, to the relevancy of the charge of rape; and that the cases where this is dispensed with are exceptional."
At page 153 Lord Neaves referred to "the plain simple fact inferring the crime of rape, - that the woman was ravished against her utmost resistance”.
Within this Opinion at point (10) it states,”It follows that the decision in William Fraser changed nothing in relation to the issue as to whether or not the use of force was a necessary element in the crime of Rape committed upon an adult woman of sound mind. William Fraser did not alter the previously established law. It merely reaffirmed that, in the case of sexual intercourse with an adult woman of sound mind, it was essential, in order to support a charge of Rape, for the Crown to be able to allege that the woman had not given her consent to the intercourse, (to put it another way,. that refusal of consent was one of the constituent ingredients of the crime of Rape). It did not establish that refusal of consent by the woman was all that had to be proved in addition to the sexual penetration. For these reasons, it would, in my opinion, be a mistake to accept what I understood to be the Lord Advocate's submission that this court should 'restore' the law to what, it was submitted, it had been found to be in William Fraser, namely that, in the case of an adult woman, Rape could be established by proof of intercourse without consent, and nothing more. That was not what William Fraser decided. The law defining rape was the same after the decision in William Fraser as it had been before. . If the views of the dissenting judges on the issue of force had been part of the ratio in William Fraser then the court in Sweenie could not have arrived at the decision it did without overruling William Fraser. The fact that Sweenie did not overrule William Fraser demonstrates that the court in Sweenie realised that the court in William Fraser was deciding not about force but about consent.
Within this judgement at point (11) it goes onto say,” As regards the use of "force", it is clear that it was differentiated from any force which was involved in the achievement of penetration. On the other hand, the amount of force which was required was seen as dependent on the ability of the woman to resist. It is also clear that "force" was given an extended meaning. It was not confined to direct physical attack, but could consist of threats, at least threats of physical attack. Thus in Sweenie Lord Cowan at page 144 gave an instance of a case "where, through fear and dread, by threats of death, the woman has been thrown into a state of prostration, - or as when, through such threats, or through actual personal violence at the first meeting of the parties, she had been thrown into a swoon - and then her person ravished”…In Sweenie (1858) 3 Irv. 109, the issue that the court had to decide arose out of the circumstances averred in the Indictment, namely that the accused had intercourse with a sleeping woman (the wife of another man) by entering her bed by stealth and sexually penetrating her while she slept. The case was thus quite clearly one in which the sexual penetration had taken place without the consent of the woman, but the accused had used no force to overcome any resistance by her..”
This Opinion continued to say,”  The use of "force" appeared to embrace any means by which the accused overcame the resistance of the woman or rendered her in such a state that she was unable to resist. This included cases in which the victim had been stupefied by the accused in order to enable him to have sexual intercourse with her (see the passage from the opinion of Lord Ardmillan which I have already quoted). In Sweenie Lord Deas at page 148 related cases of drugging to the use of "force" in these words: "Drugging to the extent of insensibility, is even less remote from direct personal violence, than presenting a pistol to the forehead, or a dagger to the breast, for such drugging overpowers the will by means of physical appliances to the body (no matter whether to the stomach, internally, or by chloroform, or the like, externally), just as much as if the insensibility had been produced by a blow.” There was, however, an artificiality in this use of the word "force". While no doubt the drug had a physical effect upon the woman's consciousness, it may well be that its consumption was not forced upon her and that she willingly ingested it, unaware of what she was doing. In that situation the force which followed would be no more than that involved in achieving penetration in the case of a woman who was not consenting.”
Point (12) continued,” The words used by Lord Ardmillan, "in the estimation of the law" were used earlier by Hume. The related term "constructive force" is employed repeatedly by the judges in dealing with cases concerning non-consensual sexual intercourse with females who, for whatever reason, cannot properly be described as both adult and of sound mind (for ease of reference, I shall refer to them as 'vulnerable females'). Thus we find the judges and legal writers of the 18th and 19th centuries discussing what the law as to Rape was in relation to a man's having sexual intercourse with a very young female child or with a woman whose mental age is that of a very young child. In such cases the judges were well aware that it would be utterly obnoxious to enable the man to say, "She consented"; or " I did not overcome her will". So the common law had adopted a familiar legal device: it created a non-rebuttable presumption that such a female could not "consent" to sexual intercourse. So, in such a case, the issue of consent in fact could not arise: the fact that any such female had agreed to have intercourse was entirely irrelevant: the legal rule was that, regardless of the facts, such a person could neither give nor even withhold 'consent' in law: actual consent had nothing to do with it. So there was no room, in such cases, for the element of overcoming the victim's will forcibly or otherwise: in such a case, no question could arise as to what the victim's will was at the time of the sexual intercourse. It would, I believe, have been possible for the judges and institutional writers to conclude that there were two distinct types of Rape, one where the victim was an adult woman of sound mind, and the other where she was not; and to create two case-specific definitions, one involving proof that the will had been overcome and the other not involving such proof. Instead, what they did was to adhere to the definition given by Hume, including the ingredient of forcibly overcoming the will, but then to sidestep the problem of 'forcibly overcoming' the vulnerable female's will by introducing, in such cases, the legal fiction (to use the technical legal term) of 'constructive' force, that is to say that the law would conclusively 'estimate' - i.e. presume - that force had been used, even although it had notbeen used, or at least could not be shown to have been used. The result was that, although one definition came to be employed to cover all cases falling within the nomen juris Rape, the giving or the withholding of consent ceased to be an issue in cases involving vulnerable females; and the crime of having sexual intercourse with such persons was held to be rape, even although one of the most basic elements of Rape - as defined for adult women of sound mind -, that of consent withheld, was not present. It is not the absence of force that makes the difference in the case of vulnerable females: it is the absence of the need to prove that consent was withheld. The other cases considered by the judges and institutional writers, involving adult women penetrated while insensible through intoxication, could then be judged on the basis that, in order to establish rape, the prosecutor had to show that the actions of the man designedly and in fact overcame the woman's will by rendering her insensible. What is interesting is that the judges and writers who discussed these matters in the 18th and 19th centuries did not abandon the notion of forcibly overcoming the woman's will; they sidestepped it for the special cases of highly vulnerable females by deciding that the presence or absence of consent - in point of fact - was immaterial.”
The remaining passages in this Opinion of the Court reads,”  It is also worthy of note that even the dissenting Commissioner in Sweenie, Lord Ivory, actually agreed that force was necessary in the case of an adult woman of sound mind. At page 139, he acknowledged that, "...the definitions of this crime given in our law books all require that the connection with the woman shall be accomplished by force." It is in that context that he said, "In a case like the present of a woman asleep, therefore unconscious and unable to express her dissent, I confess that the soundest definition of the crime of rape, seems to me to be that given by Lord Cockburn, in the case of Fraser, that the crime of rape consists in having intercourse without the woman's consent." When he turned to the case of the adult woman, able to express her will, he said, at page 140, "...and it would indeed appear that the doctrine as to force being necessary, which has been founded on the looser and more popular dicta contained in our law writers, are all applicable to the case of a grown person, and to one able physically to show a renitent will." Even the Lord Justice General (M'Neill), in his dissent, said - but only in relation to cases in which the woman was not able, for whatever reason, to express her will - " In all these cases, the knowledge of the woman's person has been had without her consent, which, as regards the will of the sufferer, is all that the law desiderates when the mind and its faculties are in abeyance." In his Opinion in the present case, the Lord Justice General refers to a 'general rule'. I think that the ideal of a general rule, one that covers all cases, is impossible to achieve. The rule that the crime is Rape if the sexual intercourse is "without her consent" does not cover the cases of children and women of seriously impaired mental capacity who in fact give their consent. Even in the case of the sleeping woman, whose consent is not sought or given, would it be rape if she - had she been asked - would have given her consent, the man in question being her much loved husband? Such a case is no more fanciful than many of those considered by the judges in Fraser and Sweenie. These are merely examples of cases that would not fit any such "general rule”.
 I do not find it necessary to demonstrate by copious quotation what is manifest and is not in dispute, namely that for centuries Scottish judges have invariably directed juries on the basis of the definition of rape as formulated by Hume. The same definition has been used again and again in the appeal court. I may mention one recent, typical example: In Jamieson v H.M. Advocate 1994 SCCR 181, at p. 186, LJG Hope said, "The crime of rape consists in the carnal knowledge of a woman forcibly and against her will." We have all directed juries in the same words.
 It is also clear from the opinions of the judges, and from the reports of the legal arguments, in the cases of William Fraser and Sweenie that it was the invariable practice of the Lord Advocate when charging a man with the rape of an adult woman of sound mind to aver that her contrary will was overcome by the use of force. Forty-four different persons have held the office of Lord Advocate since the case of Sweenie; and I am not aware that any has ever, in the case of an adult woman of sound mind, brought an indictment that did not aver that force was used by the man to effect the sexual penetration. The present case is no exception. The Indictment in the present case included assertions that the accused "did assault" the woman, and, in accordance with the correct, established and necessary practice, it went on to specify the modus of the assault, by alleging that the accused did "seize her by the arms", "hold her down on a bed" and "compel her to sit astride you, attempt to compel her to insert your private member into her private parts...". I have never known a case in which some such averments of the use of force did not appear. So if the Lord Advocate is right in submitting that the use of force to overcome the woman's will is not a necessary ingredient of Rape, and never was after William Fraser, then it follows not only that the institutional writers were wrong, as well as the High Court in the case of Sweenie, all the judges who, for over 140 years, have invariably directed juries in accordance with the definition contained in Hume, and also all the appeal courts that, over the same period, have quoted and founded upon the definition of Rape in the course of deciding appeals, but that all his predecessors as Lord Advocate wrongly chose to undertake an unnecessary and superfluous burden of alleging and proving the use of force. Moreover, successive Lord Advocates must be regarded as having failed numerous Rape victims, by declining to prosecute their assailants simply because there was no evidence of the use of force. I see no need to be driven to such a conclusion on the basis of a new analysis of the case of William Fraser, an analysis not advanced in this court in the last 140 years.
 I emphasise that my view relates to the law as it is, not the law as it should be. Parliament has legislated repeatedly since the mid 19th century on aspects of the law relating to Rape but has not yet chosen to change the definition; for brevity, I refer to the statutory provisions mentioned in the Lord Justice General's Opinion. The Scottish Parliament has on several occasions amended Scots criminal law without yet dealing with Rape. Parliament may choose to reconsider the matter and in doing so will be able to take account of the disadvantages as well as the advantages of effecting a change such as the Westminster Parliament has enacted for England and Wales.
 I acknowledge that Judges in Scotland have always been entitled to use fresh and more contemporary language to formulate the law when directing juries. And, over time, that practice may result in some slowly evolving modification of the law itself. As an example, I draw attention to what T.B. Smith, in his A Short Commentary on the Law of Scotland (1962), wrote of the use of force, "The woman's resistance must continue until she is overcome by force or fear, unconsciousness or exhaustion." Although many older texts can be found to support the way that T.B. Smith expressed the evidential burden upon the prosecutor, no judge would now direct a jury in these terms. It would now be left to the jury to decide if it were established that the woman's opposing will had been overcome. That is possibly why, in the latest edition of Sir Gerald Gordon's Criminal Law, what is said is: "In the ordinary case of forcible rape it must be shown that the woman's resistance was overcome by violence and that she did not consent to the intercourse. In practice this usually means that the Crown must show that the accused used violence of a kind which the "reasonable woman" would not have been able to resist....The degree of violence required, however, is a question of fact in each case". Though I seriously doubt if juries would be directed to consider the test of what the response of the "reasonable woman" might be, I think it is clear that juries would be left to decide what, in the particular circumstances proved in evidence, amounted to sufficient resistance to leave the man in no doubt that he was forcing himself upon the woman against her will. Accordingly, my view of the constitutional role of the judge does not deny to the judges the function of expressing and applying the law in the light of circumstances, and indeed in the light of changes in the use of language. But that is entirely different from changing, and indeed reversing, the law after it has been settled for centuries.
 Before we decide that we and all our predecessors have been getting the definition of rape wrong for over two hundred years, and proceed to formulate a new definition of a very old crime, we should remember a crime does not have to be given the name 'Rape' to merit the severest punishment. Merely changing the names of crimes is not going to make any significant difference to the protection of the public. WHAT IS IMPORTANT IS THAT JUDGES SHOULD NOT START ALTERING THE ESTABLISHED CRIMINAL LAW ON THE BASIS THERE MAY HAVE BEEN A CHANGE IN THE PUBLIC ATTITUDE TO A PARTICULAR, AND WELL-DEFINED, CRIME.
 In deference to the debate in and out of court, I should mention some other matters. I do not think that the case of Stallard v HM Advocate provides significant support for the idea that the court is entitled to change the settled law in order to take account of changes in public attitudes. It is noteworthy that the court in Stallard comprised only three judges. That is the clearest indication that the court did not suppose that it was correcting an error in the content of the law. On the contrary, the Lord Justice General there (Lord Emslie) recognised clearly that, although Hume and other institutional writers had stated that a husband could not be guilty of the crime of Rape committed by himself upon his lawful wife, there had never been any judicial decision affirming that that was correct: there was no binding precedent. The Opinion of the Court therefore includes the passage, "This is the first opportunity which the court in Scotland has had to consider whether Hume's statement of the law was sound when it was written and whether it is sound today...In our opinion, the soundness of Hume's view, and its application in the late twentieth century, depends entirely upon the reason which is said to justify it....There is no doubt that if it was the law of Scotland that a husband is not amenable to a charge of raping his wife, the rule rests solely upon the sentence in Hume which was simply adopted and repeated in different language by the later commentators and writers on the criminal law.". The reasoning was that, although a wife's acceptance of her husband's right to have sexual intercourse with her at any time of his choosing might have been seen to be a "normal incident of marriage" in Hume's time, it was certainly not so by 1989. The Lord Justice General added significantly that , "If...Hume meant that by marriage a wife consented to intercourse against her will and obtained by force, we take leave to doubt whether this was ever contemplated by the common law...." This observation was made in the context of the definition of Rape at page 251, "Rape in our law is the carnal knowledge of a woman's person, forcibly and against her will...." The acceptance, as essential in defining Rape, of the element of forcibly overcoming the will thus went to the heart of the decision in Stallard. Because it had never been any part of the common law of Scotland that a woman, by marrying, consented to the use by her husband of force in order to have intercourse with her, it followed that if he used force to overcome her will, the husband was guilty of raping her, whatever legal fiction might or might not apply in relation to a married woman's consent to intercourse with her husband. The strength of that Opinion lies in the fact that no court had ever affirmed that the view of Hume and others as to an implied and irrevocable consent was correct and formed part of the law. Indeed, as the Lord Justice General pointed out, ...this is the first time the Crown has sought to charge a cohabiting husband with the rape of his spouse." So, in my opinion, Stallard PROVIDES NO AUTHORITY FOR THE VIEW THAT JUDGES ARE ENTITLED TO REFORM THE LAW.
 The case of Brennan v H.M. Advocate 1977 J.C. 38 mentioned in discussion provides an example of the court's restatement of the law in circumstances in which it is recognised that on an earlier, and comparatively recent, occasion a court has misunderstood the law and applied it incorrectly. The error was made by a single judge in Campbell v H.M. Advocate 1921 J.C. 1. In that case, a trial judge, sitting with a jury, instructed the jury in a manner that was not in accordance with the law of Scotland. As the Lord Justice General (Lord Emslie) said in Brennan, the trial judge was "directing the jury without having had the advantage of a full debate or further examination of the relevant Scots authorities on the place of self-induced intoxication in our law...." At that date, 1921, the law was settled and clear: in Brennan the opinion of the court stated (p. 44), "We have no doubt that the law as stated by Hume is, and has always been, the law of Scotland and neither our researches nor those of the learned Solicitor-General and senior counsel for the appellant have revealed that the accuracy of Hume's statement has ever been called in question. On the contrary, it has constantly been accepted and applied....". The Opinion of the Court pointed out that, in the case of Kennedy v H.M. Advocate 1944 J.C. 171, the directions by the trial judge in Campbell had been approved, but only after it had been, "agreed by both prosecution and defence for the purposes of the argument that the law with regard to the effects of drunkenness upon criminal responsibility was accurately set out in Campbell." (cf. p. 50 in Brennan.) Because of this agreement and concession, there was no reference at all to, or examination of, the differences and distinctions between the elements which constitute the crime of murder in the criminal law of Scotland, and those which according to Beard v D.P.P. [1920[ A.C. 479 constituted that crime in England." (p. 50 in Brennan). There was thus a demonstrable error in Kennedy, and the reason for that error (erroneous agreement and concession) was manifest. In these circumstances, it was clearly the right and duty of the court in Brennan to correct the error and to overrule the decision in Kennedy, on the express basis that: "We have no doubt that the law was therein incorrectly stated, and that what was said in Beard's case as to the effect of self-induced intoxication in relation to a charge of murder, does not and never did represent the law of Scotland." (p.51).
 In the recent case of Galbraith v H.M. Advocate 2001 S.L.T 953 a court of 5 judges overruled two cases, Connelly v HM Advocate, 1990 JC 349; 1991 SLT 397, and Williamson v HM Advocate, 1994 JC 149; 1994 SLT 1000, on the basis, which was submitted by the defence and conceded by the Crown, and also established to the satisfaction of the Court itself, that the Court in those cases had misapplied the law as it had always been understood and applied in Scotland.
 There is thus, in my opinion, a long and consistent history of intervention by the High Court, when the opportunity arose, to correct an error that had entered the law in circumstances in which the established law had previously been clear, well understood and repeatedly applied. That is not the situation that we face in this appeal. The definition of Rape as a crime which, in the case of an adult female of sound mind, has as one of its essential components the forcible overcoming of the woman's will by the man, is a definition that goes back to and well beyond the first edition of Hume in 1797. I need not add to the Lord Justice General's citation on this point, except to refer to the Information for the panel in William Fraser where references to the same effect are given to the definition in Regiam Majestatem, and in Burnet, Hume and Alison as well as old English texts. . The law in this regard was not changed by the decision in Fraser, for reasons that I have sought to explain. It was authoritatively stated and applied in Sweenie in 1858 and since then it has been consistently applied in the way defined by Hume and declared in Sweenie. If the time has come to review the law with a view to reforming it, let it be reviewed by the legislature, with such assistance (for example, from the Scottish Law Commission, and from the judiciary among others) as is thought appropriate; and let it be reformed on the basis of the kind of study that we cannot undertake. But let us not exceed our constitutional role by reforming the law simply because we think that it is out of date; and especially so after more than 140 years. There is, in my opinion, all the difference in the world between what was done in cases like Brennan, Stallard, and Galbraith - namely, correcting recent and demonstrable aberrations - and deliberately changing the law as it has been understood and applied for centuries. There is also an important distinction between, on the one hand, adjusting and thus altering lawyers' law in the light of experience in its application in real life cases and, on the other, rewriting the definition of an important and notorious common law crime that has been known and understood in our law for centuries. The precise definition and naming of common law crimes is of great importance, not only because the well understood names, like "rape", "theft", "assault" and "clandestine injury", have frequently been used by the legislature in the sense that the courts have understood and used them, but also because the named, and defined, crimes sometimes attract crime-specific penalties and procedures. If we change the meaning and definition of a known crime, known by its nomen juris, the change is retrospective and could give rise to great difficulties in the interpretation and application of statutes which have employed any such nomen juries in its legally understood sense. As the Lord Justice General said in Brennan, in what is an exactly parallel context, "We ask ourselves first of all the fundamental question: What is insanity, according to the law of Scotland, for the purpose of a special defence of insanity at the time? The question has nothing to do with any popular meaning of the word "insanity", nor indeed is it a question to be resolved upon any medical opinion for the time being. It is, on the contrary, a question which has been resolved by the law itself as matter of legal policy in order to set, in the public interest, acceptable limits upon the circumstances in which any person may be able to relieve himself of criminal responsibility." In my opinion, our approach must be exactly the same. We have no constitutional right or authority to adopt a different approach.
 I have not thought it necessary to enter into discussion of questions of evidence, inference, onus and mens rea. They, of course, are highly relevant in real cases that come before the court for decision; and I share Lord Marnoch's concerns and views on these matters. Wholly false and malicious allegations of rape are not unknown in these courts and the law is there to protect the innocent as well as to bring the guilty to justice. The removal of the need to aver and prove force is likely to make it easier to bring charges of rape; there would be advantages in that, but there may be disadvantages in the administration of justice. However, these matters do not appear to me to be decisive in relation to determining whether or not the use or the threat of force is an essential element in the definition of Rape under Scots law.
 In dealing with these matters I have not referred in detail to the maxim cessante ratione cessat ipsa lex. This maxim expresses the idea that a rule of law that has lost its underlying rationale because of changes in social or other circumstances is no longer a valid rule of law and does not require to be applied (cf. The Laws of Scotland, Stair Memorial Encyclopaedia, Volume 22, paragraphs 353 et seq.) I did not understand the Lord Advocate to submit that that maxim could be applied here; and indeed it was not mentioned at all in argument. That is no doubt because it could have no application in relation to the definition of the crime of Rape, a crime with which the courts have had to deal on a daily basis for centuries against a background of constantly changing circumstances. If the underlying social circumstances have changed in such a way that the law as understood applied for centuries in hundreds of cases has effectively been overtaken by events and ought to be reformed, then that is a matter for Parliament, not for judges. As the author of the Encyclopaedia article puts in, in paragraph 354, (summarising the views of Professor Maher),"....there have been changes in the social background to most decisions in the law reports. The difficulty is that judges are not suitably placed to assess the essentially political question whether the particular changes in the background to a rule justify not following that rule." That encapsulates my view, although the point was not argued in the present Reference. For these reasons, I have to disagree with the argument presented in paragraph,  and  of Lady Cosgrove's Opinion that the law should be 're-visited' - by the Court - because attitudes to women have changed since 1858. Of course we all recognise that the position of women in social, political, economic and legal terms has altered fundamentally since the 18th century, by which time the definition of Rape had been settled; and there can be few who do not welcome the changes and marvel that society took so long to make them. But to acknowledge and salute the changes is one thing; for judges to embark on law reform is another. To overrule Sweenie would be to change and to reform the law; and we cannot disguise that fact by using the term 're-visit' or the metaphor of 'shedding dead wood'. The 'wood' of the existing law of Rape may well be gnarled and ugly; but it is certainly not ‘dead'.
 There is one other matter that arises. We were not addressed on it; but, in my view, it is pars judicis to take note of it, because it is a question of competency. Sweenie was, in my opinion, a decision of the Whole Court. In 1858 and until 1887 the Lords Commissioners of Justiciary were the Lord Justice General, the Lord Justice Clerk and five Lords Commissioners of Justiciary. The Lord Justice Clerk (Lord Hope) died before Sweenie was decided and his successor did not take his seat until the following month. The five other Lords Commissioners of Justiciary and the Lord Justice General took part in the decision. (It came before them because the Lord Justice Clerk, just before his death, had certified the case to the High Court). The Lord Justice General acknowledged that that case was being heard before "a full Bench". He cast no vote because, until the Criminal Appeal (Scotland) Act 1926 and the Criminal Procedure (Scotland) Act 1975 the judge presiding in the High Court did not cast a vote unless the other judges were evenly divided. That situation would arise, for example, if the five Commissioners and the Lord Justice Clerk divided 3:3 in a court in which the Lord Justice General presided. This is clear from Jas. Stewart, 1868, 5 Irv. 310, Ross v. Johnston, 1 White 171, and Isabella Cobb or Fairweather, 1836, 1 Swinton 354. It is thus clear that, in Sweenie, all the judges competent to sit took part in the case. In my opinion the Sweenie decision was therefore a decision of the Whole Court. The fact that one of the seven judges competent to sit had died, and the vacancy had not been filled, makes no difference. For there can be a sitting of the Whole Court even although some judges are missing, as happened in Sugden v. H.M. Advocate 1934 J.C. 103, in which the Lord Justice General did not sit; and also in Kirkwood v. H.M. Advocate 1939 J.C. 36, a Whole Court case in which the Lord Justice Clerk did not sit. In Sugden v. H.M. Advocate, the case of Macgregor (1773) M. 11, 146 was referred to as a "Whole Court case"; six judges, the five Commissioners and the Lord Justice Clerk, sat in that case. Similarly, Isabella Cobb or Fairweather, in which a majority decision, 3:2, was reached is treated as a decision of the Whole Court; see Jas Stewart (supra). In the latter case, Lord Neaves, at p. 315, speaking of Cobb said,
"But it is not necessary to go into the merits of the question, beyond asking whether the point has been decided by an authoritative Court, and if it has been so decided, whether there are any distinguishing circumstances that prevent its application to the present case. As to the first point, it has been decided in the case of Cobb, in a manner that I must consider as authoritative. The supreme Court must have given this subject full deliberation. The difference of opinion which prevailed must have led to its full discussion and consideration. I cannot think its authority is shaken by its being merely the decision of a majority; because many cases have been decided, and decisions have stood when pronounced by a bare majority. The opinion of the Lord Justice-Clerk should receive no more effect than that of a private individual in Court, because he had no voice or vote unless his brethren were equally divided in opinion. But it never came to that. There were three Judges in favour of repelling the plea, and two in favour of supporting it. It stands, therefore, as the judgment of a majority of the Court of Justiciary, and therefore we must adhere to it.”
I cannot improve upon that statement of the position. To this day, it has not been decided that a decision of the Whole Court can be overruled by a bench like the present, which, though it has seven members, is not the Whole Court. It has not even been decided that the Whole Court itself can overrule a long-standing decision of the Whole Court. The matter was very fully discussed in Sugden v. H.M. Advocate 1934 J.C. 103, but it was not authoritatively resolved. The difficulties that arise are well illustrated in paragraphs 305 et seq in the Encyclopaedia, Vol. 22, under the heading, "Precedent And The High Court of Justiciary". I am not persuaded that this Court of seven judges can competently overrule the Whole Court decision in Sweenie without introducing a new doctrine, not yet recognised in our law, that a long-standing decision of the Whole Court of the High Court of Justiciary can be overruled by a court of seven judges.
Mens Rea Confusion in the Law of Rape Application
Highlighted above in bold under point 13 of the above Opinion of the Court it states,”I have not thought it necessary to enter into discussion of questions of evidence, inference, onus and mens rea. They, of course, are highly relevant in real cases that come before the court for decision; and I share Lord Marnoch's concerns and views on these matters…” Reference is made to other legally binding authorities which are supportive of Lord Marnoch’s concerns and views on these matters:
Within Bayram Cinci v HMA, Appeal No: AC137/03, (dated 16 January 2004) consisting of a bench of the Lord Justice Clerk, Lord Kirkwood and Lord McCluskey, the Court ruled,”  I gratefully adopt Lord McCluskey's analysis of the evidence and the issues in this appeal. Counsel for the appellant has raised two main questions, namely (1) whether there was sufficient evidence to establish mens rea, and (2) whether the trial judge was right in directing the jury that the complainer's words "He raped me," if spoken, were part of the res gestae. If either question is decided in the appellant's favour, the appeal must succeed.”
The directions on mens re.
 In McKearney v HM Adv (16 January 2004) we have held that it is now essential in a case of this kind that the trial judge should direct the jury expressly on the question of mens rea. The trial judge did so in this case. Lord McCluskey has quoted her words. In my opinion, she gave an accurate direction which covered the essential elements of mens rea to which we have referred in McKearney (supra). The trial judge also directed the jury that the crime involved not only the lack of consent on the part of the complainer but also the lack of a genuine belief on the part of the accused that the complainer was consenting. I agree that that direction was appropriate.
 The trial judge's general directions on the mens rea of the crime of rape were therefore correct. The problem in this case, so far as mens rea is concerned, relates to the sufficiency of the evidence.
In the course of her general directions the trial judge said the following:
"Now, ladies and gentlemen, as regards the question of whether the requirements of law on corroboration are met in this case here, I can tell you there is sufficient evidence as a matter of law to entitle you to convict and it would be open to you to do so if you consider that the evidence founded on, including any inferences which you consider can properly be drawn from it, is of sufficient character, quality and strength to satisfy you that the Crown has proved beyond a reasonable doubt that Bayram Cinci was guilty of raping [the complainer]" (p. 15).
That implied that there was corroborated evidence of both the actus reus and the mens rea. The trial judge later expressly directed the jury that the existence of the mens rea had to be corroborated (pp. 23-24). She referred to the evidence on which the Crown relied for proof of mens rea, and directed them that all of it was evidence on which they too were entitled to rely (pp. 20-22). I agree with Lord McCluskey that that evidence was not sufficient to prove mens rea.”
 I shall mention two particular items of evidence that were founded on by the Crown. The first was the complainer's distress. On that question, the trial judge directed the jury that the distress of the complainer could be relied on as a separate source of evidence that supported the case that intercourse was non-consensual (at p. 29). That direction was correct; but the trial judge also said
"You may find it [sc evidence of distress] helps you to draw inferences as to the circumstances surrounding the event that caused the upset and distress including the state of mind of the accused, namely whether he knew she was consenting (sic) to intercourse or was reckless as to whether she was consenting or not ... It is a matter for you, ladies and gentlemen, whether you consider the evidence of distress relevant at all, but if you do consider it relevant and you do accept the evidence about it, then I ask you to approach it subject to asking yourself the important questions as to whether it is genuine and whether it is caused by sex being non-consensual with Mr Cinci knowing that there was no consent or being reckless about that matter" (at pp. 30-31).
In McKearney (supra), I doubted whether evidence of the complainer's distress de recenti can provide corroboration of the appellant's state of mind in relation to her consent; but, as in that case, I think that it is unnecessary for us to decide the appeal on the point.
 The second item that I wish to mention was the complainer's statement
"He raped me." The trial judge regarded these words as being part of the res gestae and as being relevant evidence of mens rea. I shall discuss the res gestae point later; but, on the assumption that this was a res gestae statement, I do not consider that it was a statement from which the jury could draw any inference about the appellant's state of mind.
 I conclude therefore that there was insufficient evidence to entitle the jury to hold that the appellant had the necessary mens rea. That unquestionably caused a miscarriage of justice. On that ground the appeal succeeds.
 This case and McKearney demonstrate that whenever the Crown has no evidence of force and relies on Lord Advocate's Reference No 1 of 2001 (supra), the trial judge will have to consider with particular care whether there is corroborated evidence of the essential element of mens rea.”
In summary under the final point (22) it states,”This case serves to highlight the importance in rape cases, especially where the Crown does not rely on the use of force to overcome the woman's will, of giving the most careful consideration to the sufficiency of the evidence from which a jury is to be invited to hold that the Crown has discharged the burden of establishing that the accused had the necessary mens rea.”
Timothy McSorley Petition to the Nobile Officium (dated 27 May 2005)
Within the Opinion of the Court it makes reference to The Lord Advocate's Reference (No 1 0f 2001) and states under point  “In March 2002 a court of seven judges decided by a majority that the use of force was not an essential element in the definition of rape (Lord Advocate's Reference (No 1 of 2001), 2002 SCCR 435). In McKearney v HM Adv (2004 JC 87) the court recognised that as the law stood before the Lord Advocate's Reference (No 1 of 2001) the use of force could be held to imply that the accused had had the necessary mens rea and that, in that state of the law, a specific direction on mens rea was, in general, unnecessary. For the future, however, the court held that in cases where it was not alleged that the accused used force, the jury should be given a specific direction on the question of mens rea.”
This continues to state, “, Under reference to Meek v HM Adv (1983 SLT 280) she comments that if the jury were satisfied that the force was used, the requisite mens rea was treated as being evident from and clearly implied by the actus reus itself.
 The trial judge thinks it likely that the grounds of appeal have been prompted by a misunderstanding of the meaning and effect of the decision in McKearney v HM Adv (supra). She says that in that case there was no evidence of force, or threats of force, and the Crown led no other evidence from which the necessary mens rea could be inferred. She says that there is nothing in the Opinions in McKearney to suggest that in a case such as this, where there was evidence of the use or threat of force immediately preceding penetration, other evidence of mens rea was required or that directions on mens rea of the kind suggested were essential.”
Under point  this added,”Counsel for the petitioner submits that the decision of the first sift judge is erroneous in law. She seeks to establish (a) that, even as the law stood before the Lord Advocate's Reference No.1 of 2001, a McKearney direction was necessary in every case; and (b) that distress cannot constitute corroboration of mens rea. These are not issues that can be resolved in this process, which is confined to the question of the adequacy of the reasons for refusal that are complained against.”
Graham Gordon v HMA 2004 SCCR 641 Decision:
“It was a matter for the Advocate depute to decide on what evidence that case should be based. He did not present the case as being one in which the will of the complainer had been overcome by the use of force. He did not rely on the medical evidence as to the interpretation of any injuries to the complainer. Moreover any such injuries were consistent with alternative explanations. There was no injury which could have been seen by the appellant at the time of the incident…” albeit the libel was LOADED with the use of force and not subject to any amendment or deletion and read as follows:”"did assault [the complainer] seize her, pull her to the floor, restrain her there, remove her clothing, bite her on the breast, lie on top of her, force her legs apart and did rape her, all to her injury”.
The Opinion of the Court continued,” The submissions made by Mr Carroll were critically dependent on the present case being treated as one of non-forcible rape, of the type with which McKearney v H.M. Advocate 2004 S.C.C.R. 251 was concerned. We are entirely satisfied that it was not the case of that type. The complainer plainly gave evidence that the appellant had used force in order to obtain sexual intercourse with her. This was in accordance with the terms of the charge.”
Under point  of this judgement it states,”In the second ground of appeal it is maintained that the trial judge misdirected the jury in that he failed to give clear and explicit directions on mens rea. In the course of his charge the trial judge directed the jury (at pages 30-31 of the transcript of his charge) that they could have regard to evidence as to the complainer's emotional state as providing corroboration of the evidence of the complainer that the sexual intercourse had been without her consent. It is maintained that this did not provide corroboration of the appellant's mens rea.  This ground of appeal also fails for essentially the same reason, namely that this was not a case of non-forcible rape. There is ample authority, which Mr. Carroll did not seek to challenge, that where a complainer gives evidence that she was forcibly raped, that account can be corroborated by evidence of distress (Yates v. H.M. Advocate 1990 J.C. 378; Smith v. Lees 1997 S.C.C.R. 139).
NB: It could be reasonably argued that during the jury deliberations it was clear that the jurors did not view this as a forcible rape or they would have made a decision without requiring directions in law as to what constituted the accused being “indifferent” to whether the complainer consented or not and if the accused was “reckless”.
Ronald James Adamson v HMA  HCJAC 26 Appeal No: XC85/10 (Dated 9 March 2011) consisting of a bench of the Lord Justice General, Lord Brodie and Lord Marnoch.
In Yates v HM Advocate 1990 JC 378 (Note) (where the force alleged was threats, including the threat of the use of a knife) the court, presided over by Lord Justice General Emslie, said that, on the assumption that the jury accepted the girl as a credible witness and believed all her evidence of what took place, "what was left was the search for corroboration of her evidence of intercourse being forced upon her against her will". In that case it was conceded that there was sufficient evidence in law to justify the conviction; but the issue of what constituted corroboration of the force did not go by default. Lord Justice General Emslie at page 379, in dealing with a passage in the judge's charge, observed that the trial judge was "dealing with the broad and clearly correct proposition that evidence as to the condition of the alleged victim of rape is capable of affording corroboration of credible evidence, which the jury accept, that she has been raped" - that is, that the intercourse was "forced upon her against her will". There was no question of the evidential significance of the distress being restricted to the state of mind of the complainer; it went beyond that to the inference that in the circumstances her will had been overcome by force (on the part of the offender). It cannot be doubted that, if there is an evidential foundation for the use of force, it can readily be further inferred that the offender knew that the victim was not consenting to intercourse or at least was reckless as to whether she was.
 In subsequent cases, where the complainer alleged that force had been used against her, the correlation between her exhibited distress and the use of that force was acknowledged. In Smith v Lees 1997 SCCR 139 (a five judge case concerned with lewd and libidinous practices) Lord Justice General Rodger said at page 146:
"I have no difficulty with the Solicitor General's argument insofar as it suggests that evidence of a complainer's distress can corroborate her evidence that she was subjected to conduct which caused her distress. It seems to me to be equally legitimate in an appropriate case to infer from the fact that the conduct caused actual distress that it occurred against the complainer's will and hence that force was used by the offender. Evidence of distress can therefore corroborate a complainer's evidence that she did not consent to the accused's conduct and he used force to overcome her will.”
At pages 171-2 Lord McCluskey said
"... once the evidence has clearly established the identity of the man, plus the fact of sexual penetration by him, and also the absence of consent, it appears to me to be perfectly legitimate, where genuine distress is observed, to infer that force must have been used to overcome the refusal of the consent. That would be a natural and legitimate inference in any case in which it was established that the woman refused her consent and that she was physically fit to resist unwanted sexual penetration. Accordingly, the inference which is legitimate in such circumstances can be used to corroborate the victim's direct evidence that force was in fact used. In my opinion, therefore, Yates was correctly decided and it is legitimate to use evidence of the distress of the victim as corroborative evidence.”
 A new dimension to the crime of rape was introduced by the decision in Lord Advocate's Reference (No.1) 2001. This recognised that that crime could be committed where no force of any kind had been used against the victim - it was sufficient that the intercourse was not with her consent. This gave rise to novel situations as to the proof of the mens rea of the alleged offender in circumstances in which there was no suggestion that he had used force. The potential evidential difficulties to which this development could give rise were foreshadowed by Lord Marnoch in para  of his dissenting Opinion in Lord Advocate's Reference (No.1) 2001. Such difficulties did not take long to surface. In McKearney v HM Advocate 2004 SCCR 252 the complainer, who as a result of the accused's earlier conduct was afraid of him, did not protest or resist when he proceeded to penetrate her, although she was unwilling to have intercourse with him. In Cinci v HM Advocate 2004 SCCR 267 the complainer, who had been voluntarily drinking heavily and who was found with the accused in a shower, both being naked, had no recollection of the events surrounding the intercourse; there was no evidence of the use of force. In such circumstances the need for corroborative proof that the accused had the mens rea for rape was emphasised. On the other hand, in cases where the evidence of the complainer was that force had been used against her, the traditional approach to proof of mens rea (that is that the complainer's account together with independent proof of recent distress sufficed) was held to be appropriate - see Gordon v HM Advocate 2004 SCCR 641; Flynn v HM Advocate 2009 SCCR 651.
 In Spendiff v HM Advocate 2005 SCCR 522 the distinction between the evidential requirements of "forcible" and "non-forcible" rape was discussed. The Opinion of the Court was delivered by Lord Penrose. He said:
" McKearney raised more directly the question of what was required to determine whether the accused had the mens rea necessary for the act of intercourse to be characterised as rape. The Lord Justice Clerk doubted whether the complainer's distress observed de recenti could tell one anything about the accused's state of mind, but found it unnecessary to express a concluded view on the matter. That, however was a case where the Crown did not allege that force had been used, and the Lord Justice Clerk's statement was confined to that context in McKearney (at paragraph 16). This is not such a case.
 It is clear that there may be cases in which distress de recenti cannot instruct a jury as to the state of the man's mind.”
[He then gives certain illustrations of circumstances where the victim's distress might or might not be instructive and continues.]
" Much depends on a proper analysis of the stage in the process at which the issue of mens rea falls to be determined and of the materials available to the jury at that stage. Of necessity intercourse will have been established. Equally the woman's lack of consent will have been established. If it is assumed that there is no evidence of violence, there will nevertheless usually be circumstantial evidence relating at least to the place, the individuals' relationship apart from the events complained of, and preceding events related to the incident. In Smith v Lees, the Lord Justice General, commenting on Yates v HM Advocatesaid (at page 148D):
'[E]vidence of the condition of the alleged victim of rape can afford "corroboration of credible evidence, which the jury accept, that she has been raped". Given the context in which this passage occurs, that is plainly an accurate statement of the law since a jury can infer from evidence of the complainer's distress that she did not consent to intercourse and that force must have been used.’
 Lord McCluskey similarly expressed the view that a legitimate inference could be drawn from distress and 'used to corroborate the victim's direct evidence that force was in fact used' (at page 171B). Lord Sutherland expressed his view of Yates as follows (at page 177C-E):
'The difficulty with distress is that on its own it gives no indication of what has been its cause other than that some event of an unspecified but distressing nature has occurred. It is indicative of a state of mind but it is not in any way indicative of the nature of the act which has caused that state of mind. In my opinion, therefore, the value of distress on its own as corroborative evidence should be limited to situations where it is necessary to establish the state of mind of the witness. Accordingly, in a rape case where it is necessary to establish that the penetration which ex hypothesi has been proved by evidence aliunde was without the consent of the witness, distress is properly available to provide corroboration of the lack of consent as it may be the only evidence available to establish the witness's state of mind. For that reason I consider that Yates was correctly decided. The accused admitted intercourse, which provided the necessary corroboration of that aspect. It having been established that intercourse took place, the distressed condition of the victim was apt to corroborate her evidence that that intercourse was without her consent. The combination of corroborated intercourse and corroborated lack of consent would entitle the inference to be drawn that her will had been overcome by force or fear. Accordingly, all the essential elements of a charge of rape were established by corroborated evidence.’
In relation to Yates, Lord Gill (as he then was) said (at page 184E):
'In Yates ... (the) crucial fact of penetration having been admitted by the pannel, the remaining facta probanda were that intercourse took place without the complainer's consent and that it took place by means of the use of force. Evidence of recent distress on the complainer's part was held to be capable of corroborating her evidence that she did not consent. If that was established it was legitimate for the jury to infer that her will was overcome by force.’
 He said that Yates was correctly decided. Force, at that time, in the extended meaning it had developed, was indicative of the accused's state of mind at the material time. The inference of the use of force justified the further inference that the accused had the mens rea required for the crime of rape. …"
To this review of Smith v Lees it may be added that Lord Justice Clerk Ross (at page 161F) agreed with Lord Justice General Emslie's comments in Yates and was satisfied that that case had been correctly decided.
 Before us, counsel for the appellant placed much emphasis on the opening sentence of paragraph  in Spendiff. But as is clear from that sentence in its context, including the various citations from Smith v Lees, with the approval there o
|SCCRC MOJ SELL BY DATE
MENS REAIt is well established under the Laws of Scotland there are TWO types of rape - forcible and non-forcible. The Law was changed whereby 'force' no longer used to be proven but this still raised questions on corroboration via distress and what was going through the mind of the male at the time (mens rea).
Lord Marnoch very astutely recognises the need for directions on mens rea in non forcible rapes. Other judgements have re-approved the need that it is ESSENTIAL.
The problem with the Kearney case is that it gives the appearance the crime has been committed but there has clearly been a serious misdirection whereby there was a failure to apply standard directions on mens rea in relation to the non-forcible rape.
This begs a legitimate question as to how this could be tried under the Moorov doctrine. Moorov (Samuel) v HM Advocate (1930 J.C. 68, 1930 S.L.T. 596)(additional citation 1930 J.C. 6 is a famous case in Scots criminal law based on criminal evidence and the admissibility of similar fact evidence. The case established a precedent named the Moorov doctrine.
Principles of the Moorov doctrine and when it can be applied:
Series of offences connected closely in “time, character and circumstance and have underlying unity.” Evidence of one witness in a series of two or more separate offences may be capable of providing corroboration for the evidence of a witness in another case or cases. Only evidence of the greater charge can corroborate the lesser charge, not vice versa and the character of the crime must be the same.
The bottom-line is that this case could have only been brought using this criteria, even although the averments are completely different. In the worst case scenario the essential directions on mens era should have been charged to the jury.
The Rape Law in Scotland has been changed whereby there is NO longer two types and it is NO longer ESSENTIAL to give directions in law with regards to mens rea on non-forcible rapes.
The key questions are (1) should Lady Cosgrove, with her own personal views detrimental to a fair hearing, have recused herself; and (2) did the three ladies on the bench have the authority to over-rule the Law as it stood?
I have good reason to belief the answers are in the negative and there could be reasonable challenge to this to the UK Supreme Court as a matter of 'far greater general public importance"
Rhodes & Co did a great job but it was clear that the politically correct bench were going to rule against using their gut instinct as opposed to applying the Laws of Scotland.
 Before us, counsel for the appellant placed much emphasis on the opening sentence of paragraph  in Spendiff. But as is clear from that sentence in its context, including the various citations from Smith v Lees, with the approval there of Yates, that in some, perhaps the majority of, cases, corroborated evidence of intercourse together with corroborated evidence of distress will suffice to justify an inference of the use of force (in its extended sense), thus instructing the mens rea of the accused. The surrounding context will be important, including the respective ages of the parties and their prior relationship, together with evidence from the complainer that she struggled or verbally protested. The context may also allow wider inferences, including what Lord McCluskey described in Smith v Lees as "a natural and legitimate inference" that force must have been used to overcome the refusal of consent by a fit and unimpaired female. Thus experience may suggest that in many circumstances (including the circumstances of the present case) a female who is subjected to sexual intercourse against her will may be expected to struggle or otherwise protest, such reaction being habile to instruct the necessary mens rea on the part of the accused.
 There is thus an ample body of well-reasoned authority that in cases of the present kind corroborated proof of intercourse together with corroborated proof of recent distress can in an appropriate context justify the ultimate inference that the accused knew that the complainer was not consenting to intercourse or at least that he was reckless as to whether she was so consenting. There is no need for this to be examined by a larger court.”
 The trial judge's directions that distress in this case could permit the inference to be drawn that force was used, with the further inference of knowledge or recklessness on the part of the appellant, were well founded.
At this point it is worth pointing out that throughout the centuries there has always been two types of rape - forcible and non-forcible - as set out within numerous opinions of the court. The question of mens rea and the use of distress as a form of corroboration go ‘hand-in-hand’ with whatever type of rape is being libelled by the Crown. There is a long history (before and after the Lord Advocate’s Reference No.1 of 2001) whereby there is a specific need to issue precise directions to jurors in all of the aforementioned regards.
NEW DIMENSION AND CHANGE TO THE WELL ESTABLISHED LAW OF RAPE
The Law of Rape has evolved in Scotland to be more aligned with UN International Guidelines and Recommendations and is well settled that there are two types of rape - forcible and non-forcible - which immediately affected how the subject of mens era and distress should be applied. This has also been the subject of legally binding authorities such as Cinci and McKearney following on soon thereafter from the Lord Advocate Reference No.1 of 2001.
Now that brings us up to a most decision taken by three right honourable lady judges (Lady Paton, Lady Smith and Lady Cosgrove) on the Bench in an appeal versus conviction by James Keaney  HCJAC3 XC742/13 dated 14 January 2015 which states to the polar opposite of what is cast in tablets of stone by way of numerous court decisions.
Within the Lord Advocate’s Reference, the Opinion of the Court states,”..For these reasons, I have to disagree with the argument presented in paragraph,  and  of Lady Cosgrove's Opinion that the law should be 're-visited' - by the Court - because attitudes to women have changed since 1858. Of course we all recognise that the position of women in social, political, economic and legal terms has altered fundamentally since the 18th century, by which time the definition of Rape had been settled; and there can be few who do not welcome the changes and marvel that society took so long to make them. But to acknowledge and salute the changes is one thing; for judges to embark on law reform is another. To overrule Sweenie would be to change and to reform the law; and we cannot disguise that fact by using the term 're-visit' or the metaphor of 'shedding dead wood'. The 'wood' of the existing law of Rape may well be gnarled and ugly; but it is certainly not ‘dead’.
There is now an appearance of Lady Cosgrove bringing her personal opinions onto a bench whereby there may be objective appearance of her influencing the decision taken by the Court of Appeal which is in ‘conflict’ with the Opinion of the Court (consisting of a seven-judge bench) in the Lord Advocate Reference No.1 of 2001.
Under point  of the Keaney decision it states that, “Counsel for the appellant submitted that the trial judge had failed to meet his obligation to direct the jury on the mens rea of rape: McKearney v HM Advocate 2004 JC 87 and that he had failed to direct the jury on how they should apply Moorov to each of the three elements of the crime of rape (penetration, absence of consent and mens rea) in the particular circumstances of this case. It was suggested that he could have directed them to specific parts of each complainer’s evidence that were relevant to each component whilst reminding the jury what was said, by the defence, in answer to the allegations.”
The onus on the obligation for the Trial Judge to direct the jury in questions of law appears to have been superseded by the fact it was up to lay-persons not well versed in the law (Masters of the Facts not questions of law) to listen to the evidence and make a judgement without suitable and sufficient directions from the Trial Judge.
It is well established and essential feature of the common law crime of rape that the man had the relevant mens rea, namely that he knew that the woman was not consenting to sexual intercourse or was reckless as to whether she was consenting or not: Lord Advocate’s Reference (No. 1 of 2001) 2002 SCCR 435. The man is reckless if he acted without thinking or was indifferent as to whether or not he had the woman’s consent: Jamieson v HM Advocate (No 1) 1994 SCCR 181. Whether the man knew that the woman was not consenting or was reckless as to whether she was consenting or not is a question of fact.
In cases where rape is alleged by more than one complainer, it is not unusual for the evidence of each such single witness to be used for mutual corroboration. That is, it may be said that when their evidence is considered together, it shows that the accused’s actions in relation to each of them were part of a single course of criminal conduct: Moorov v HM Advocate. Whether or not it does show that is a question of fact and, accordingly, it is only where, on no possible view of the evidence could it be said that the complainers’ individual experiences were part of a single course of criminal conduct that the availability of mutual corroboration can be ruled out: Livingstone v HM Advocate  HCJAC 102 at para 14; Reynolds v HM Advocate 1995 JC 142 at p146. The Crown relied on mutual corroboration in this case.
The bench of three judges held this aspect of the first ground of appeal is misconceived. “The crime of rape is not subdivided into two subsets - forcible and non‑forcible rape.” This goes completely against the grain whereby judges and institutional writers have concluded as a matter of well established practice and custom that there were two distinct types of Rape.
This bench also ruled that there was “no difficulty for Moorov purposes”. The legally binding submission in the first ground of the Kearney appeal was, essentially, that the conduct alleged in the second charge was materially different from that alleged in relation to the first because force was said to have been involved in one but not in the other. The point seemed to be that the evidence of a complainer who describes her refusal to have sexual intercourse having been overcome by force cannot, it was said, be corroborated by evidence from a second complainer whose description of non-consensual intercourse does not involve force having been used to overcome her will. The man’s state of mind would, it was said, be different in each case; in the latter the issue of whether or not he believed the woman to be consenting arises but it does not arise if the man used force. The distinction being drawn was that if force was alleged, that meant that the man knew that the woman was not consenting whereas if force was not used, it would, rather, be a case of the man being reckless as to whether he had the woman’s consent or not. If he had these different states of mind, it could not be said, according to the appellant’s submission, that his actions were part of a single course of conduct.
The third deviation from the well established Law of Rape is whereby the three-judge bench sitting held there was no need for precise directions to jurors on mens era in relation to the non-forcible charge. In numerous legally binding authorities this has been deemed ESSENTIAL as a matter of fairness to the accused and this must be suitably and sufficiently addressed by way of ‘standard’ judge directions in all of these types of rape cases, which appears to be getting over-ruled by a sitting of a three-judge bench.
Surely as a matter of well established custom and practice as identified earlier, it requires a larger bench to over-rule decisions with regards to it being legally bound as a matter of custom and practice there are two types of rape - forcible and non-forcible; deviation from the well established application of the Moorov doctrine; the prescribed need that it is ESSENTIAL for directions on mens era to be issued in non-forcible rape cases; and very importantly if there has been a shift away from there being two types of rape (forcible and non-forcible) to there now only being one type of rape.
The Crown’s ‘go with the flow’ role in the proceedings given the Lord Advocate’s Reference No.1; the words of wisdom warning from Lord Marnoch on mens rea within this judgement; the disagreement with the Opinion of Lady Cosgrove within the Reference; and how the Law of Rape has evolved to include mens rea and distress are extremely questionable.
This also raises a question as to whether Lady Cosgrove should have recused herself from taking part in this sitting, considering her well publicised views for radical change which are dealigned with well established custom and practice regulating the Law of Rape.
The Crown is fully aware from such reference and Stallard that Judges should not start altering the established criminal law on the basis of an isolated Judge’s personal believes or there may be a change in public attitude to a particular, and well-defined, crime.
I reiterate, the case of Brennan v H.M. Advocate 1977 J.C. 38 provides an example of the court's restatement of the law in circumstances in which it is recognised that on an earlier, and comparatively recent, occasion a court has misunderstood the law and applied it incorrectly. The error was made by a single judge in Campbell v H.M. Advocate 1921 J.C. 1. In that case, a trial judge, sitting with a jury, instructed the jury in a manner that was not in accordance with the law of Scotland.
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