Accused wins rape appeal on misdirection

Judge wrong to say belief in consent required to be reasonable, says appeal court

News, 31 May 2005

A man convicted of raping a sleeping woman has won his appeal on the basis of a misdirection by the trial judge.

Craig Patterson had been found guilty by a jury of assaulting the complainer at the house of her friend after being allowed to stay the night there. The complainer had given evidence that she had woken to find Patterson having intercourse with her. Patterson claimed the intercourse had been consensual and encouraged by her.

In directing the jury the judge said that rape was not committed "if the man actually and reasonably believes that the woman was consenting". The Crown accepted that this passage contained a material misdirection, as the essence of the crime is that the man lacks honest belief that woman is consenting, and such a belief does not require to have been reasonably held.

However the Crown argued that there had been no miscarriage of justice since the charge was not limited to the time when the complainer was awake, it appeared from the evidence that she had been asleep when Patterson got into the bed with her and the jury could have accepted that intercourse had begun before she awoke.

The court rejected this. "In our opinion, it is by no means clear that this theory reflects the true position. It is not consistent with the account given by either the complainer or the appellant in evidence. We should add that in any event such an approach would have highlighted the need for the jury to receive adequate directions on the mens rea of rape where the complainer's state lay on or close to the borderline between sleep and wakefulness, as it appears to have been in the present case. For these reasons we are unable to accept the contention that there was no miscarriage of justice."

The court's opinion can be read at http://www.scotcourts.gov.uk/opinions/2005HCJAC57.html .