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Misdirection Of Jury Appeal Refused

HMA V Mohammed Maqsood 2018

The absence of a reasonable belief of consent does not require to be proved by corroborated evidence in a rape case the High Court has ruled. There is also no direction on this matter necessary the appeal court has ruled unless it is a live issue at trial diet. In this particular case of Mr Maqsood the appellant was appealing against his conviction which was refused after being found guilty of raping an 18 year old while intoxicated.

The appeal court discussed how s1 of the Sexual Offences Act which defines rape continues to be a problem for the courts and on how to direct on this. In this case the trial judge gave the jury the standard general directions on the standard of proof and corroboration, directing the jury that if they believed the appellant then they would be bound to acquit. She also concluded that rape had three elements as set out by the definition of section 1 and all three elements have to be corroborated. The ground of appeal was that the trial judge “misdirected” the jury on distress and corroboration.

The appellant argued that the judge failed to direct the jury properly in this respect. It was also argued that the jury had to find corroboration of the appellant’s lack of reasonable belief. However the appeal was refused.

In concluding the appeal, Lord Justice General said: “In Graham v HM Advocate 2017 SCCR 497 the court explained that, although an absence of belief was an essential element of the crime of rape, it did not require ‘formal proof’. This latter expression was intended to mean that it did not require to be established by corroborated evidence…Whether an accused had, or did not have, a reasonable belief was an inference to be drawn from proven fact (eg the use of force or, in this case, signs of obvious intoxication).

The accused’s mental element did not require to be supported by corroborated testimony. Thus far, the matter ought to have been clear. That clarity ought to have been heightened by the model directions that it was only intentional penetration and lack of consent that required corroborated evidence.”

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