Reaffirmation of Corroboration Standards and Admissibility of Docket Evidence in Sexual Offences Cases

Introduction

The case of RKS against Her Majesty's Advocate ([2020] ScotHC HCJAC_19) adjudicated by the Scottish High Court of Justiciary on May 22, 2020, presents critical insights into the application of evidentiary rules under the Sexual Offences (Scotland) Act 2009 and the Criminal Procedure (Scotland) Act 1995. The appellant, RKS, was convicted of rape under Section 1 of the Sexual Offences (Scotland) Act 2009, with an initial indictment including two charges: assaulting his partner, MKS, and rape. The appellant appealed his conviction on two primary grounds: the relevance and admissibility of docketed evidence relating to earlier sexual activity and the legal directions provided by the trial judge concerning the definition of rape, specifically the requirement for corroboration of the absence of reasonable belief in consent.

Summary of the Judgment

The appellant contested the trial judge's inclusion of docketed evidence detailing sexual intercourse with MKS when she was 14 and 15 years old, arguing it was irrelevant to the remaining charge of rape and prejudicial. Additionally, he challenged the trial judge's instructions regarding the necessity of corroborating the absence of reasonable belief in consent. The High Court of Justiciary, delivered by Lord Turnbull, dismissed both grounds of appeal. The court upheld the admissibility and relevance of the docketed evidence under Section 288BA of the Criminal Procedure (Scotland) Act 1995 and affirmed that, in cases involving forcible rape, the absence of reasonable belief in consent does not necessitate separate corroboration beyond the evidence of force and lack of consent.

Analysis

Precedents Cited

The judgment extensively referenced previous cases to elucidate and support the court’s reasoning. Notable among these were:

Graham v HM Advocate (2017): Addressed the necessity of corroborating the absence of reasonable belief in consent in rape cases.
Maqsood v HM Advocate (2019): Further deliberated on the corroboration requirements for establishing the absence of reasonable belief.
Doris v HM Advocate (1996) and Blyth v HM Advocate (2005): Discussed the appropriateness of jury directions concerning honest belief in consent, particularly when force is a pivotal element.
Winton v HM Advocate (2016), Lord Advocate's Reference (No 1 of 2001), Spendiff v HM Advocate (2005), and McKearney v HM Advocate (2004): Provided supporting authority for the appellant’s arguments regarding corroboration standards.

These precedents were instrumental in shaping the court’s interpretation of statutory provisions and the standards for evidence admissibility and corroboration in sexual offence cases.

Legal Reasoning

The court's reasoning centered on two main issues: the admissibility and relevance of docketed evidence, and the requirement for corroboration of the absence of reasonable belief in consent.

Admissibility and Relevance of Docketed Evidence

Under Section 288BA of the Criminal Procedure (Scotland) Act 1995, an indictment may include a docket specifying acts connected to the charged offence. The appellant argued that the docketed acts of sexual activity between ages 14 and 15 were irrelevant to the charge of rape occurring years later. However, the court determined that the docketed conduct was indeed specifiable as a sexual offence and inherently connected to the rape charge, thereby satisfying the legislative criteria for admissibility and relevance. The absence of any challenge to the docket's inclusion or the admission of its evidence further solidified its standing as relevant and admissible.

Corroboration of Absence of Reasonable Belief

The appellant contended that the trial judge erred by not requiring corroborated evidence for the absence of reasonable belief in consent. Conversely, the court maintained that in cases of forcible rape, where evidence of force and lack of consent are present, the issue of reasonable belief is inherently addressed through the established facts. The court referenced Doris v HM Advocate and Blyth v HM Advocate to emphasize that directions regarding reasonable belief should only be issued when explicitly raised in the trial evidence. Consequently, in this case, the evidence of force sufficed to establish the absence of reasonable belief, negating the need for additional corroboration.

Impact

This judgment reinforces the robustness of evidentiary procedures in sexual offence prosecutions within Scottish law. By affirming the admissibility of docketed evidence when it remains connected to the charged offence, even if other charges are withdrawn, the court ensures that relevant historical conduct can be considered without necessitating its complete relevance to the remaining charges. Additionally, the clarification regarding the corroboration of absence of reasonable belief in consent provides clearer guidance for future cases, particularly emphasizing that in scenarios involving force, the established elements of the offence sufficiently address reasonable belief without the need for separate corroboration.

Complex Concepts Simplified

Section 288BA of the Criminal Procedure (Scotland) Act 1995

This section allows for the inclusion of a "docket" in an indictment, which is essentially a list of acts or omissions related to the main charge. For such a docket to be admissible, each listed act must qualify as a sexual offence and must be connected to the charged offence, either as part of the same event or a related series of events.

Absence of Reasonable Belief

In the context of rape, the prosecution must prove that the accused did not have a reasonable belief that the victim consented to the sexual activity. The appellant argued that this absence should require corroborated evidence (additional evidence supporting this claim). However, the court clarified that when evidence of force is present, it inherently demonstrates the absence of reasonable belief, making separate corroboration unnecessary unless the issue is directly raised in the trial.

Corroborated Evidence

Corroboration refers to the requirement that certain elements of a crime must be supported by independent evidence to ensure their reliability. In rape cases under the Sexual Offences (Scotland) Act 2009, specific elements like intent or recklessness, and lack of consent, require such corroboration to be sufficiently proven.

Conclusion

The judgment in RKS against Her Majesty's Advocate serves as a pivotal reference in Scottish criminal law, particularly concerning the handling of docketed evidence and the corroboration of essential elements in sexual offence prosecutions. By upholding the relevance and admissibility of the docketed acts and clarifying the standards for proving the absence of reasonable belief in consent, the court has provided clear directives for future cases. This ensures that victims' testimonies are robustly supported while maintaining rigorous standards for the defense's burden of proof, thereby fortifying the integrity of legal proceedings in sensitive sexual offence cases.