Introduction

In the case of Michael Cowan vs. His Majesty's Advocate (HMA), adjudicated by the Scottish High Court of Justiciary on July 31, 2024, the appellant, Michael Cowan, appealed his conviction for rape. The central issue revolved around whether the complainant was asleep or unconscious at the time of the alleged assault, thereby rendering her incapable of providing consent. The appellant contested the sufficiency of evidence establishing her incapacitation and the reasonableness of the jury's verdict.

Summary of the Judgment

On February 22, 2020, Michael Cowan was convicted of rape under Section 1 of the Sexual Offences (Scotland) Act 2009, specifically for assaulting JP while she was incapacitated. The complainant testified that she had been drinking and using cocaine, leading to periods of unconsciousness during which the assault occurred. The appellant appealed the conviction on grounds of insufficient evidence regarding her state of consciousness and the reasonableness of the verdict. The High Court of Justiciary upheld the conviction, finding that sufficient evidence existed for the jury to infer the complainant's lack of consent, thereby affirming the initial verdict.

Analysis

Precedents Cited

The judgment references two pivotal cases: HM Advocate v Bilaal Afzal [2019] HCJAC 37 and Van Der Schyff v HM Advocate [2015] HCJAC 67. In both instances, the courts emphasized that consent can be inferred from the totality of circumstances, even when explicit evidence of incapacitation is absent. These precedents guided the court's stance that the absence of direct evidence of the complainant's unconsciousness does not preclude a finding of non-consent.

Legal Reasoning

The court scrutinized the Advocate depute's approach, which focused solely on proving the complainant's incapacitation to establish non-consent. It was determined that this narrow focus was misguided. Instead, the primary issue was whether non-consent was established, irrespective of the complainant's consciousness level. The court held that the jury was justified in inferring non-consent based on the complainant's testimony and contextual evidence, such as the presence of DNA and the circumstances leading to her incapacitation.

Additionally, the court analyzed the application of Section 1(4)(a) of the Sexual Offences (Scotland) Act 2009, clarifying that the legal definition of the vagina includes the vulva, expanding the scope of what constitutes penetration.

Impact

This judgment underscores the judiciary's commitment to safeguarding consent in sexual offence cases, even in complex scenarios where direct evidence of a complainant's incapacitation may be lacking. By reaffirming that consent can be inferred from the totality of circumstances, this ruling provides clearer guidance for future cases, ensuring that juries have the flexibility to consider all relevant factors when determining the presence or absence of consent.

Complex Concepts Simplified

• Inferred Non-Consent: This refers to situations where the absence of explicit consent can be deduced from the surrounding circumstances, such as the complainant's behavior, physical evidence, and overall context of the incident.
• Section 106(3)(b) of the Criminal Justice (Scotland) Act 1995: This provision allows an appeal if the verdict is one that no reasonable jury could have reached based on the evidence presented. It sets a high threshold for overturning jury decisions.
• Sexual Offences (Scotland) Act 2009: A key piece of legislation that defines various sexual offences and outlines the legal definitions and frameworks for consent and assault.

Conclusion

The High Court of Justiciary's decision in Cowan v HMA reaffirms the judiciary's role in interpreting consent within sexual offence cases comprehensively. By allowing for inferences of non-consent based on the entirety of the evidence, the court ensures that justice is served even when direct evidence may be absent or ambiguous. This judgment not only reinforces existing legal principles but also provides a robust framework for evaluating future cases, ultimately contributing to the protection and affirmation of individuals' rights within the legal system.