APPEAL AGAINST CONVICTION BY LW AGAINST HER MAJESTY'S ADVOCATE [2020] HCJAC 50 (06 November 2020)

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Appellant: Findlater; John Pryde & Co (for Brazenall & Orr, Dumfries)

[1] On 31 October 2019, at the High Court in Glasgow, the appellant was found guilty of

the rape of his step-daughter, namely RM, on various occasions between October 1988 and

March 1992 when RM was aged between 16 and 19. At the material time, the appellant

would have been aged between 28 and 31. He was also found guilty of incest under

section 2B of the Sexual Offences (Scotland) Act 1976. Only the rape conviction is

[2] The appeal raises a stark issue of whether a complainer’s allegation that she was

raped by an appellant, who had fathered her child, was corroborated by the very nature of

[3] The complainer had died before the trial. She had given a statement to the police

that, over the period in the charge, the appellant had repeatedly raped her. From an early

age, she had been physically abused both by her mother and the appellant, who were

married in 1978 when the complainer was five. She had always referred to the appellant as

“dad”. The sexual abuse had started when she was 13 (cf the libel of 14). It began by the

appellant inserting his fingers, and latterly objects, into her vagina several times a week.

When she was 16, he began to rape her. This all occurred in the family home.

[4] It was agreed by joint minute that the complainer had given birth to the appellant’s

son on in March 1992 when she was 19 years old. This had been established by DNA

[5] The complainer’s mother described the domestic setting. She confirmed that the

complainer called the appellant “dad”. She maintained that, as she could no longer have

children, the complainer had offered her services as a surrogate, by artificially inseminating

herself with the appellant’s semen in return for financial support. When she had initially

been asked about the complainer’s allegations, the complainer’s mother had made no

[6] The trial judge determined that there was a case to answer.

[7] The appellant submitted that there was insufficient evidence of rape. Although an

act of sexual intercourse had been proved by virtue of the conception of the appellant’s

child, there was no corroboration of lack of consent. The evidence of the domestic

circumstances did not confirm or support the complainer’s account (Fox v HM Advocate 1998

JC 94 at 100 and 109). It was not enough for the evidence to be consistent with the

complainer’s account (ibid at 112, approving Smith v Lees 1997 JC 73 at 109). Although

corroboration could be supplied by circumstantial evidence (Spendiff v HM Advocate 2005 1

JC 338). Sexual attraction between parent and child (Oedipus and Electra complexes) was

not unknown. The use of general background circumstances could not assist in considering

a specific allegation of sexual crime (GW v HM Advocate 2019 JC 109 approving R v Cooper

[2009] 1 WLR 1786; cf GWP v HM Advocate 2005 SCCR 764 at para [18]). Proof that the

intercourse amounted to incest did not corroborate lack of consent.

[8] The advocate depute argued to the contrary. Evidence of the parental relationship

was independent evidence which was capable of supporting the complainer’s evidence that

she did not consent. Corroboration of lack of consent could be found by drawing an

inference from the nature of the parties’ relationship (Spendiff v HM Advocate (supra)). The

domestic circumstances were not merely consistent with the complainer’s account, they

confirmed or supported that account. A jury would be entitled to hold that a girl would not

choose to have sex with a man whom she considered to be, and called, her father and who

[9] The evidence of the complainer, in so far as demonstrating the occurrence of sexual

intercourse, was corroborated by the joint minute of agreement that the appellant is the

father of the complainer’s child. The issue is whether the relationship of, in effect, father and

child, between the appellant and the complainer, and their living in the same household as

the complainer’s mother, had the potential to provide corroboration of the complainer’s lack

of consent. The resolution of this issue depends upon whether these circumstances “support

or confirm” the complainer’s account of lack of consent (Jamal v HM Advocate 2019 JC 119,

LJG (Carloway) delivering the opinion of the court, at para [20] and following Fox v HM

Advocate 1998 JC 94, LJG (Rodger) at 100, see also LJC (Cullen) at 109). This inevitably

[10] The fact that a rape complainer is the daughter or step-daughter of an accused can be

an important element in a circumstantial proof (RWP v HM Advocate 2005 SCCR 764, LJG

(Hamilton), delivering the opinion of the court, at para [18]). A significant difference in age,

as is present here, may also play a part (Wilson v HM Advocate 2017 JC 135, LJG (Carloway),

delivering the opinion of the court, at para [32]). These are factors which, depending on the

other circumstances, may demonstrate the inherent unlikelihood of consent. However, the

mere fact that a relationship was incestuous, or that there was a significant age gap, cannot

of itself corroborate a complainer’s account of a lack of consent. There must be more to it for

the incest, even combined with the age gap, to be regarded as confirming or supporting the

[11] In analysing this, it is not the likelihood of the offender’s behaviour which is under

scrutiny but that of the complainer. The starting point is that incest is a cultural taboo (see

Scottish Law Commission Memorandum (No 44): The Law of Incest in Scotland (1980)

para 1.1). Hume (Commentaries i. 446) describes the source of the law as not being societal

policy or discipline but the “native feelings of the human constitution”. Alison (Principles

562) refers to “Nature herself” inspiring “an abhorrence of the act”. In more modern times,

as described by the Finnish anthropologist Edvard Westermarck in 18911, the vast majority

of humans feel an intense aversion to the idea of having sexual relations with close family

members with whom they have grown up in a family setting, even if they are not related by

[12] Where absence of consent is to be corroborated by circumstantial evidence, the

question will be whether the circumstances are capable, in combination, of yielding an

inference which supports or confirms the complainer’s testimony. When this arises as a

question of sufficiency, the evidence relied upon by the Crown is to be taken at its highest. It

is to be interpreted in the way most favourable to the Crown (Mitchell v M Advocate

2008 SCCR 469 LJG (Hamilton), delivering the opinion of the court, at para [106]).

[12] In the complainer’s situation, not only had she been in a close family relationship

with the appellant, which was in effect one of parent and child, she had also been in that

relationship since childhood. There was a significant age gap between the appellant and the

complainer, albeit not one that would cause concern in relationships involving adults. The

complainer’s mother was in a continuing relationship with the appellant. It is the

combination of these circumstances, which permits an inference to be drawn, that provides

1 The Westermarck Effect: from The History of Human Marriage [1891]

2 Green, Stuart P., How to Criminalize Incest 11 May, 2017 (available at SSRN:

confirmation or support for the complainer’s account that sexual relations with her step-

[13] The jury must have accepted this analysis of the available corroboration. That being

so, the appeal must be refused.

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	Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> APPEAL AGAINST CONVICTION BY LW AGAINST HER MAJESTY'S ADVOCATE [2020] HCJAC 50 (06 November 2020) URL: http://www.bailii.org/scot/cases/ScotHC/2020/2020_HCJAC_50.html Cite as: 2021 SCCR 15, [2020] HCJAC 50, 2020 GWD 38-486, 2021 JC 125

Scottish High Court of Justiciary Decisons