APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne Lord Eassie Lord McEwan	[2009] HCJAC 57 Appeal No: XC298/07 OPINION OF THE COURT delivered by LORD OSBORNE in APPEAL AGAINST CONVICTION by CJLS Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Act: A. Brown, Advocate; Messrs Balfour + Manson, LLP, Edinburgh

Alt: Ms J. Cherry, AD; Crown Agent

18 June 2009

The Background Circumstances

[1] The appellant was indicted on an indictment containing a single charge in the following terms:

"On 19 February 2006 at Woodlands Terrace Lane, Glasgow within motor vehicle registered number PX03 XRV, you did assault DSG,... threaten her, compel her to remove her clothing, compel her to suck and lick your private member, compel her to sit on top of you, seize hold of her and move her up and down, attempt to kiss her on the mouth and did rape her."

[2] The appellant pled not guilty and went to trial. A special defence of consent was lodged on his behalf. Evidence in support of the Crown case was heard. Two joint minutes of agreement were lodged and placed before the jury. On 26 March 2007, following the closure of the Crown case, counsel for the appellant made a motion to the court that there was no case to answer in respect of the charge in the indictment. After hearing submissions on that motion from counsel for the appellant and the Advocate depute, the court repelled the motion. Thereafter the appellant himself gave evidence. The case for the appellant was then declared closed. On 27 March 2007, the jury, by a majority, found the appellant guilty of the charge in the indictment. On 17 April 2007 the court sentenced the appellant to 4 years imprisonment, ordered to run from 27 March 2007.

[3] By a Note of Appeal dated 14 June 2007, the appellant appealed against his conviction on two grounds in the following terms:

"(i) It is respectfully submitted that the learned trial judge erred in repelling the submission made on behalf of the appellant in terms of Section 97 of the Criminal Procedure (Scotland) Act 1995. It was submitted on behalf of the appellant that there was insufficient evidence to corroborate the essential fact that the appellant intended to have intercourse with the complainer in the knowledge that she was not consenting (or at least was reckless as to whether the complainer was consenting or not). The appellant's counsel agreed that regard could be had to the complainer's evidence on this point, and to the fact that the complainer was seen to be distressed after the event (although in the circumstances he submitted that corroboration could not be found in distress alone). The learned trial judge agreed that the observed distress could not of itself provide corroboration, but expressed the view that corroboration could be found in the fact that the value of the sexual services in question was significantly greater than what was actually paid. In these circumstances, it is respectfully submitted that the submission made should have been upheld.

(ii) It is respectfully submitted that the learned trial judge erred in directing the jury that there was sufficient evidence to corroborate the essential fact that the appellant intended to have intercourse with the complainer in the knowledge that she was not consenting (or at least was reckless as to whether the complainer was consenting or not). The appellant's counsel agreed that regard could be had to the complainer's evidence on this point, and to the fact that the complainer was seen to be distressed after the event (although in the circumstances he submitted that corroboration could not be found in distress alone). The learned trial judge agreed that the observed distress could not of itself provide corroboration, and directed the jury that corroboration could be found in the fact that the fact that the value of the sexual services in question was significantly greater than what was actually paid (see page 49 of the transcript of the charge) and in the fact that sexual intercourse was not paid for before it occurred. At pages 51 and 52 of his charge, the learned trial judge directed the jury in the following terms,

'in order to infer that the accused intended to have sexual activity without consent, as I say, you have to accept the complainer's evidence first that the threat happens. Without that, there is no case. If you do accept that that had happened, it is of course an important element in proving that the accused knew that the complainer did not consent. Corroboration of this matter, ladies and gentlemen, again comes from this combination of the evidence of distress and under-payment and indeed non-payment before the actual event occurs'.

It is respectively submitted that this direction amounted to a misdirection and that the combination of the evidence of distress and evidence of under‑payment/non-payment could not provide corroboration of this essential fact".

The evidence available in support of the Crown case

[4] In view of the nature of the grounds of appeal, it is appropriate to summarise the evidence that had been led during the course of the Crown case. The summary is essentially that contained in the trial judge's Report to this court. The complainer, DSG, testified that, in February 2006, she had been an heroin addict, smoking at least two "tenner" bags a day. She fed her habit partly by prostitution in central Glasgow in an area known as the "drag", notably on Cadogan and Waterloo Streets. This area was covered, to some degree, by police closed circuit television cameras. The complainer was aged 27 at the material time and had been a prostitute for about 3 years. She was asked in considerable detail about how she plied her trade. Her target amount for a night was £250, but she would work only one night in two or three. Generally, men would approach her on the street and ask for oral sex or full sexual intercourse. The type of "business" and its price would always be agreed in advance. It would also always be paid for in advance. She charged between £15 and £20 for oral sex and £40 for full intercourse. She did not perform any of these services without a condom, as "no one in their right mind, would". However, some prostitutes did. If she were in need of a "tenner" bag of heroin, she might reduce her prices somewhat if it appeared that the customer ("punter") did not have the right amount. Oral sex would be performed while she was full clothed and she would only remove the "bottom half" for intercourse. She had never stripped naked for either service.

[5] The general tenor of DSG's evidence was confirmed by a fellow prostitute and drug addict, NS. She gave a price range of £20 to £30 for oral sex and £30 to £40 for full intercourse. Even if there were an urge for a "quick tenner bag", no price would drop as low as £10. DSG had agreed with this, at least in relation to sex without a condom.

[6] On Sunday 19 February, DSG and NS made their way into the city centre of Glasgow from the Inglefield Street Hostel, on the southside. Both had taken heroin that day, although their recollections differed as to when that had occurred. DSG's memory was that, by the time they started work, she was "rattling" or "strung oot" because of heroin cravings. Her withdrawal was causing her to have hot sweats, sore legs and nausea. The two women awaited the arrival of their punters near a Cashline machine in Waterloo Street. It was here that they had encountered the appellant. He lived in rural Lanarkshire. He was accustomed to using prostitutes about once a week in the city centre, sometimes just for oral sex, but sometimes for full intercourse if the girl was "nice". It was accepted that the appellant withdrew £20 from the Cashline machine.

[7] The appellant first approached NS. According to her evidence, he asked her for oral sex without a condom for £20. She declined, but DSG agreed, contrary to the advice of NS, saying, in an aside to NS, that she would not do it without a condom, but would get the money. DSG agreed that the appellant had first asked NS for oral sex without a condom. DSG was unwilling to accept in evidence that she had agreed to do this for £20, but ultimately appeared to accept that this might have happened, with her planning to persuade the appellant later to use a condom. NS said that she had told DSG that she would see NS later, whereupon they had parted.

[8] DSG said that the appellant then drove her in his car to either Woodlands Terrace Lane, or Park Circus Lane. This is a relatively secluded area suitable for clandestine sexual activity. According to DSG, she tried to make a conversation with the appellant on the way, but he had not been responsive. She had been picking up "bad vibes" and said that he looked "scary". When the car drew to a halt, the appellant sat in silence for a time, which had also been unnerving. However, she had eventually asked him if he was ready for business. The next stage would have been for the appellant to hand over the £20. However, that did not happen. Instead, he opened the car door and looked out. She testified that he then shut the door and said: "If you want to see the streets again, you will have to do what I say", or words to that effect. DSG's immediate reaction was to laugh, but, on looking at his face, which was "horrible", she concluded that he was not joking. She took the remark as a threat and became scared. He then told her to take her trainers off and put them in the back of the car. The purpose of this, she surmised in evidence, was to discourage her from escaping. He then "made" her perform oral sex on him. He stopped the oral sex and told her to take all of her clothes off, which she did, and go on top of him for full intercourse, which she also did. No condom was used. This was something which DSG said she had not done before. She said that she did not want to have sexual intercourse and had told him that. Her body felt "pure limp". He ejaculated.

[9] DSG said that she had felt sick and scared, but had not been crying. She put her clothes back on and they drove down towards the city centre. As they passed a police car, he asked her to pretend to have a conversation with him. They drove back, not to the vicinity of the Cashline machine, but to somewhere on Argyle Street. As she was leaving the car, the appellant had said "there's a tenner", but she told him that she did not want it. She was unaware of what had happened to it. She seemed to accept that she might have taken it, as was written in her signed statement to the CID (defence production 1), but she did not think that she had. She had no money when she had been interviewed by the police. She had been asked by the police to produce any money that might have had her attacker's fingerprints on it. She had been carrying her underwear and a wipe, when dropped off, and had disposed of these in a nearby bin. Despite a subsequent police search, they were not found. By the time that DSG emerged on to Argyle Street, she felt numb, sick and shocked. She had been crying and shaking and wondering whether what had happened to her had been her fault. She had met two "boys" she knew and they had summoned two other prostitutes over. It was those two girls who had "made" her go to the police. Indeed it was one of those girls who had informed the police, who had been on mobile patrol that night, of the incident. DSG spoke to the police some twenty minutes after she had been dropped off. She had still been upset, angry and crying.

[10] The trial judge also narrates that it might be of some note that, during her examination in chief, at the point before describing the incident itself, DSG had knocked her plastic cup of water in the direction of the appellant in the dock. Moving out of the witness box, she had called him a "dirty, filthy bastard".

[11] The Crown also led evidence from P.C. Gary Cryans, who had been one of the policemen on duty on the night in question. He confirmed that he had been approached by two females, one being the complainer and the other being KF, another prostitute, who did not give evidence. P.C. Cryans described DSG as "crying, looking as if she were in shock and shaking". It was KF who had spoken to him first. When he spoke to DSG, she had said that she had been raped. P.C. Cryans put DSG into his police van "to calm down". He did not think it appropriate to take much by way of detail from her about the incident, because she was so upset. He had left that to the CID in due course. He noted down what she had said in his notebook. Partly prompted by a statement, which he had been prepared later in his shift for the reporting officer, he recollected that DSG had told him that she had provided oral sex before a threat had been made. It had been after the threat that intercourse had taken place.

Submissions of the appellant

[12] When this appeal came before us first on 17 September 2008, counsel for the appellant explained that the fact of sexual intercourse having taken place between the appellant and the complainer on the occasion libelled was not in issue. The question was whether there was sufficient material in the Crown case to corroborate the necessary mens rea on the part of the appellant. While there had been independent evidence of distress on the part of the complainer, from P.C. Cryans, that evidence could not corroborate mens rea. His submission was that the evidence relied upon by the Crown for corroboration of mens rea was incapable of being viewed as such. The evidence about the incident had come principally from the complainer herself. She had said that she would have provided oral sex for £15 to £20 and full intercourse for £40; no sexual service would have been provided unless the client used a condom, although she had been aware that other prostitutes did not insist on a condom. She had agreed that she might reduce the price if she was in need of heroin. At the time of the incident, the complainer had described herself as "rattling" or "strung oot".

[13] The witness NS, another prostitute, had said that she would charge £20 to £30 for oral sex and £30 to £40 for full intercourse. The appellant had initially accepted in his police interview, at page 26, that it was usual to pay £20 for oral sex and £40 for full intercourse. Payment was normally made in advance of the provision of the service. In evidence, the appellant had said that he had paid £10 for oral sex and then a further £10 for full intercourse. A difficulty was that prices were, it seemed, fluid; there was room for manoeuvre. There was no doubt that the evidence of the complainer could be taken as amounting to an account of rape, involving the issuing of a threat and her subsequent compliance with the appellant's demand. The question was simply whether there was corroboration of mens rea.

Submissions of the Advocate depute

[14] The Advocate depute submitted that the appeal ought to be refused. The approach taken by the trial judge had been unnecessarily cautious. There had been a threat by the appellant, spoken to by the complainer. There had been de recenti distress. That was a sufficient basis in evidence for conviction. In this connection the Advocate depute relied upon Spendiff v H.M. Advocate 2005 J.C.338, particularly paragraphs 26 and following. Reliance was also placed on Burzala v H.M. Advocate 2008 S.C.C.R.199. The necessary inference regarding the appellant's mens rea could be drawn from the whole circumstances.

[15] Upon the assumption that that approach was unsound, the evidence of under‑payment, or non-payment might corroborate the appellant's mens rea. The evidence had been clear regarding appropriate charges and procedures. It was not necessary that each piece of circumstantial evidence relied upon needed itself to be incriminating. The appellant had given evidence of a low payment and furthermore payment after the service had been rendered. He had been in possession of only £20. On that basis consensual full sexual intercourse would have been unlikely. In that connection reliance was placed on Megrahi v H.M. Advocate 2002 SCCR 509 at paragraphs 32 to 36. The Advocate depute also relied on McKearney v H.M. Advocate 2004 SCCR 251, particularly paragraph 16 and Gordon v H.M. Advocate 2004 S.C.C.R. 641, particularly paragraphs 6 to 8. It was contended that this had been a case where force had been used; a threat had been issued and the complainer had been compelled to remove her clothing.

Reply on behalf of the appellant

[16] Counsel reaffirmed his submission that there was no corroboration of the appellant's state of mind. As regards the timing of payment, it was not a factor. This was a case of non-forcible rape. The matter had been put to the jury on the basis that distress was not capable of corroborating the mens rea of the appellant.

Subsequent events

[17] Following the conclusion of the hearing before us on 17 September 2008, after consideration of the submissions made, we reached the view of that we could not properly decide the case on the basis of the evidence, as described in the trial judge's report. Accordingly, on 18 September 2008 we held a procedural hearing for the purpose of discussing what more might be required. Following discussion at that hearing we directed that transcripts should be made of:

(i) The evidence of DSG;

(ii) The evidence of NS;

(iii) The evidence of Gary Cryans;

(iv) The submission of no case to answer and the Crown's response to that submission, also the Court's decision;

(v)               The evidence of the appellant.

We also directed that copies of Crown production no 5, the transcript of the police interview with the appellant, and copies of the joint minutes lodged at the trial should be made available. That having being done, it was agreed that there should be a further hearing in the appeal when these materials had become available. In the event, that further hearing could not take place until 8 May 2009.

Further submissions by the Advocate depute

[18] At the outset, the Advocate depute accepted that this had not been a forcible rape and that therefore corroboration of mens rea on the part of the appellant, apart from evidence of distress on the part of the complainer, was necessary. The Advocate depute submitted that, having regard to the evidence of the complainer, DSG, the evidence of NS, and the contents of the transcript of the audio tape recorded interview between the appellant and the police, which was introduced as part of a Crown case, there was sufficient evidence to corroborate that of the complainer. In particular, there had been under‑payment and non-payment before the service was rendered. It was necessary to look at the evidence concerning the market in sexual services in central Glasgow and at the appellant's knowledge of it; also the evidence of the discussions which took place on the night in question. Particular reference was made to the evidence of the complainer at pages 9 to 10, 61, and 78 to 79 of Volume 1 of the transcript of evidence and pages 18 to 19 of Volume 2. The evidence of NS was important. Reference was made to pages 33 to 34 and 42 to 45 of her evidence. The Advocate depute also made reference to a number of passages in the appellant's own evidence, although the relevance of that to the soundness of the trial judge's decision on the motion of no case to answer eluded us. In all the circumstances, it was submitted that the trial judge had been justified in refusing the motion of no case to answer.

Reply by counsel for the appellant

[19] Counsel for the appellant adhered to his earlier submissions. The transcripts now available largely confirmed the precis of the evidence given by the trial judge. It was important, however, to note that the complainer, at page 10 in Volume 1 of the transcript of her evidence-in-chief, had accepted that pricing in the market in sexual services was fluid. While she had stated that the appellant had not made payment "upfront" and an inference might be drawn from that, NS had said at page 43 of Volume 2 of the transcript of evidence that sometimes girls did not get money for the service which was provided. Thus a prior payment was not a universal practice. NS indicated that there were variations in the market, as regards price and the use of condoms. Reference was made to pages 31 to 33 of her evidence in Volume 2. She agreed that some girls in need of heroin would perform oral sex for as little as £10. P.C. Cryans' evidence did not assist in connection with the point in controversy. Nor did the evidence of the appellant. In all the circumstances the appeal should be allowed.

The decision

[20] The grounds of appeal in this case raise two matters. The first is a criticism of the trial judge's decision to repel the submission of no case to answer in terms of section 97 of the 1995 Act. The second is a criticism of the directions of the trial judge in certain respects. That criticism amounts to a rehearsal, in the context of the charge to the jury, of the point made in the first part of the grounds of appeal relating to sufficiency of evidence. It will be apparent from our narrative of the submissions made to us that no separate submissions were made in relation to that part of the grounds of appeal that deals with misdirection. In these circumstances we shall focus exclusively upon the issue raised by the first ground of appeal.

[21] Although, in her submissions to us on 8 May 2009, the Advocate depute strayed into a consideration of the evidence of the appellant, it is clear that his evidence cannot be considered in relation to the issue of the submission of no case to answer. Such a submission requires to be considered and determined only in the light of any facts agreed and the evidence which was led as part of the Crown case. In these circumstances, it is necessary to confine our attention to such agreed facts or such evidence. The issue is, thus, one of sufficiency.

[22] The complainer in the charge, DSG, plainly gave evidence which amounted to an account of assault and rape. She spoke to her having being compelled to perform certain sexual acts including full sexual intercourse, in the context of a threat being made to her. In the light of that and the other surrounding circumstances, she complied with the appellant's demands. It was ultimately common ground in this appeal that the allegation of rape was not one which could be described as an allegation of forcible rape. Furthermore, it was common ground that there was sufficient evidence of the complainer's lack of consent to intercourse. That evidence consisted in the evidence of the complainer herself and evidence supportive of that coming from P.C. Cryans of his observation of the complainer's distress shortly after the relevant events. The controversy surrounded the issue of whether there was corroboration of the complainer's evidence from which the inference could be drawn of mens rea on the part of the appellant, that is to say, evidence from a source separate from the complainer which could give rise to the inference that the appellant knew, at the time of the admitted intercourse, that the complainer was not consenting to it. Against that background we now turn to consider the relevant sources of evidence bearing upon that matter.

[23] Having regard to the fact that the evidence of P.C. Cryans did not extend to any matters relevant to the issue which we face, the only possible sources of such evidence are, first, the evidence of NS, the complainer's fellow prostitute, and the material contained in the tape recorded interview between the appellant and the police, which was introduced as part of the Crown case. The basis upon which the sufficiency of evidence in case was supported by the Crown and presented ultimately to the jury was that the necessary inference regarding the appellant's mens rea could be drawn from evidence from a source separate from the complainer concerning under-payment for intercourse and also payment not having been made before the intercourse occurred. It is with that in view that the relevant evidence must examined. Furthermore, it has to be borne in mind that the focus of attention must be, not the complainer's own practice as regards the amount and stage of payment, but the practice in the market for sexual services generally in the area in question, of which the appellant, as an habitual user of prostitutes, could be supposed to have been aware. There was no evidence that he had ever previously used the services of the complainer and, as a result, could have been supposed to have known of her particular practices in this regard.

[24] NS gave evidence concerning her seven years of experience as a prostitute in the relevant area. She had testified that her charges for oral sex outside were between £20 and £30 and for full sexual intercourse outside between £30 and £40. She explained that, in some cases, the client might change his mind as to what he desired, as between oral sex and full sexual intercourse. In such an event a negotiation would be necessary. Some clients desired sexual services without the use of a condom, but the witness personally was not prepared to furnish them on that basis. However, at page 33 of the transcript, Volume 2, she agreed that some prostitutes did provide services on that basis. The price paid might or might not vary according to whether a condom was used. An important passage in the evidence of NS is to be found at page 43 of the transcript. She there explained that she personally would secure payment of the fee for the service before it was to be rendered. In the event of a client changing his mind, starting off wanting oral sex and then desiring sexual intercourse, the money would change hands at the stage when the further request was made, before intercourse occurred. However, in that passage, the witness accepted that it was not universal practice to obtain payment before the service was rendered. She stated that a lot of clients had received the services without making payment; sometimes a payment was never made.

[25] What emerges from the evidence of NS is that both for oral sex and full sexual intercourse a range of prices might be charged; there was no fixed price for each of these services. Furthermore, while some prostitutes would insist upon payment before the service was rendered, that practice was by no means universal.

[26] The second source of material that we have to consider is the contents of the tape recorded interview between police officers and the appellant which was led in evidence as part of the Crown case. At page 13 and following the appellant accepted that he was a user of prostitutes, as much as once a week. Essentially, he used different girls on each occasion. For the most part, the appellant obtained oral sex rather than full sexual intercourse, as he explained at page 21 of the transcript. As regards the use of condoms, the appellant's position was that they were widely, but not exclusively, insisted upon by prostitutes.

[27] At page 26 of the transcript of the interview, the appellant was asked about prices for different sexual services. He said that £20 was paid for oral sex and £40 for full sexual intercourse. As regards the stage of payment of money for the services, the appellant stated at page 28 that prostitutes would not provide the service unless money had been handed over. However, at page 36 of transcript the appellant stated that, prior to the events in question, he agreed with the complainer that she would perform oral sex, he thought without a condom, for £10. When the parties arrived at the lane where the events occurred, at page 37 of the transcript, the appellant stated that he had handed over the sum in question, namely £10. At page 40 of the transcript the appellant stated that he thought that he had had full sexual intercourse with the complainer and that he had thought that he had given her more money on that account. Sexual intercourse then took place. He thought that he must by then have paid her more money for that purpose. He thought that he had paid the complainer an extra £10 for full sexual intercourse. The payments had been made before the sexual intercourse occurred.

[28] In the light of the foregoing material, and in the context of the other circumstances of the case, we have concluded that there was no evidence capable of giving rise to the inference of mens rea on the part of the appellant, coming from a source other than the complainer. The evidence given by NS concerning the practices and prices in the market for sexual services in the area in question demonstrated, first, a range of prices for particular services and, second, flexibility in practices adopted by prostitutes. In particular, while more often than not payment would be sought and made in advance of the service being rendered, that was not universal practice. The use of a condom, while generally adopted, was not universal practice.

[29] While at a relatively early point in his police interview the appellant indicated the rates which he usually paid, he spoke subsequently of having agreed lower prices for oral sex and full sexual intercourse, which, in our view, would justify the drawing of an inference that the appellant did not, or could not, regard those lower prices as other than a feature of the fluidity of the market indicated in the evidence of the two prostitutes.

[30] In the light of this, we are unable to conclude that there is evidence, apart from that of the complainer, which is capable of corroborating her evidence, from which the inference of mens rea may be drawn. In these circumstances, the submission of no case to answer should have been sustained. Since a decision to repel such a submission, where it should have been sustained, amounts to a miscarriage of justice, we conclude that the conviction of the appellant must be quashed. The appeal is allowed.