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Scottish High Court of Justiciary Decisons |
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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Her Majesty's Advocate v. P.H. [2002] ScotHC 124 (19 September 2002) URL: http://www.bailii.org/scot/cases/ScotHC/2002/124.html Cite as: 2000 JC 155, [2002] ScotHC 124, 2002 GWD 29-996, 2002 SLT 1380 |
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HIGH COURT OF JUSTICIARY OPINION OF LORD MacLEAN in causa HER MAJESTY'S ADVOCATE against P.H. ___________ |
Act: J Carroll, Solicitor Advocate
Alt: Batchelor, Q.C., A.D.
"For the reasons given in the earlier part of this opinion I consider that the decision in Sweenie was not correctly decided at the time when it was decided and should be overruled, and the general rule relating to the law of rape is correctly stated by reference to the woman's lack of consent. I should add that I do not consider that there is any impediment to this court overruling Sweenie."
Lady Cosgrove said at p.461C:
"It has been said that ours is a live system of law. Our law should be like a living tree, not only growing but shedding dead wood as it does so. The opportunity has now presented itself and I am of the view that the law should be revisited and the flawed approach, imported in Sweenie, departed from in the manner suggested by your Lordship in the chair:"
Lord Nimmo Smith at p.461E said:
"Ours is however a live system of law (Stallard v HM Advocate, per the Lord Justice General (Emslie) p.254), and it lies within the powers of this court, as custodians of the common law, to review it, and to correct the way in which it is stated, when it is necessary to do so in order to take account of developments in the law and to meet the needs of the community. This latter consideration appears to me to be of particular importance in a case such as the present. There have been profound changes in the position of women as members of society, and in attitudes to sexual conduct since Baron Hume wrote. So it appears to me to be necessary to examine with particular care the way in which the crime of rape has been defined from time to time."
"the progressive development of the criminal law through traditional law making is a well entrenched, necessary part of legal tradition. Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen."
(See SW v UK 21 EHRR 363 at 399; and Kokkinakis v Greece 1993 17 E.H.R.R. 397 at 423). It has often been said that "ignorance of the law will not excuse unlawful conduct". (See, for example, Millar v Dickson 2000 S.L.T. 988 per Lord Hope of Craighead at p.997). The conduct alleged in charge 1 of the indictment is certainly unlawful, and the Minuter cannot in my opinion plead ignorance in relation to it.