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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Watt, Re Lord Advocate's Reference [2002] ScotHC 35 (22 March 2002) URL: http://www.bailii.org/scot/cases/ScotHC/2002/35.html Cite as: 2002 SCCR 435, [2002] ScotHC 35, 2002 GWD 12-360, 2002 SLT 466

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Watt, Re Lord Advocate's Reference [2002] ScotHC 35 (22 March 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Marnoch Lady Cosgrove Lord Nimmo Smith Lord Wheatley Lord Menzies Lord McCluskey	163/01 OPINION OF THE LORD JUSTICE GENERAL in LORD ADVOCATE'S REFERENCE No. 1 of 2001 by HER MAJESTY'S ADVOCATE in terms of Section 123 of the Criminal Procedure (Scotland) Act 1995 Referring for THE OPINION OF THE HIGH COURT Points of law arising in relation to a charge upon which, on trial in the High Court at Aberdeen there was acquitted EDWARD RICHARD WATT _______

 

 

Appellant: The Lord Advocate; Crown Agent

Respondent: Moynihan, Q.C, Moggach; Le Fevre Litigation

22 March 2002

1. This reference by the Lord Advocate arises out of the acquittal of the former accused on a charge of rape at the end of the Crown case when the trial judge upheld a submission that there was no case to answer. In upholding that submission the trial judge proceeded on the basis that it was essential for a conviction of rape that the complainer was subjected to some degree of force or the threat of force, and that the fact that the sexual intercourse took place without her consent was insufficient for a conviction.
2. In presenting his submissions to this court the Lord Advocate made it clear that he was not seeking a finding that the trial judge had come to the wrong decision on the evidence in the case for the Crown. He invited the court to review the law relating to the crime of rape, and to hold that the actus reus consisted of sexual intercourse by a man with a woman who at the time of the intercourse did not consent to it. He went on to submit that the necessary mens rea was that the man knew that the woman was not consenting or was reckless as to whether she consented or not. These submissions, as I understood them, were based in part on opinions delivered by members of the Court in the case of William Fraser (1847) Arkley 280 and in part on the way in which the common law relating to rape should take account of changes in the position of women in the conditions of the present day. I should add at this point that nothing in this opinion should be treated as critical of the decision which was taken by the trial judge.
3. In the first place it is necessary to ascertain the true state of the law in the past, and whether any of the authorities should be re-considered.
4. The starting point in the history of the law of rape must be the exposition by Baron Hume in his Commentaries on the Law of Scotland respecting Crimes. I will refer for convenience to Bell's edition of 1844. However, the same text appeared in the editions of 1797, 1819 and 1829, all of which were edited by the original author. Having distinguished the crime of rape from that of abduction, Hume states at I.302:

"The knowledge of the woman's person must be against her will, and by force. So that though she be carried off by violence at first, and even detained in some measure in a state of confinement and distress; yet, if in the end, being weakened in mind, and shaken with continual solicitation and importunity, she submit to the embraces of her companion without any use of threats or violence at the time, or recently before; this is not a rape, but a crime of a different though perhaps a still more base and flagitious description. The resistance must, therefore, be continued to the last; so that it is by main force only and terror that the violation is accomplished...

This doctrine must, however, always be understood in a reasonable, and not a captious sense. It is evidently no consent, to do away with the guilt of rape, if the woman only discontinue her resistance out of fear of death, as when a pistol is clapped to her head, or a dagger to her breast; or if she be threatened with destruction, and so beaten and abused, as to alarm her for her life. There is plainly the same reason to hold this for a rape, as to hold it for a robbery, when, on the like demand, a person submits to have his money taken out of his pocket, or even with his own hands delivers it. Or what if the woman faint in the struggle, through terror and fatigue, and is carnally known in this state; or if from natural infirmity she is unable to oppose otherwise than by entreaties, and cries for assistance? In either case the deed is accomplished by violence, since all the resistance is made that nature will allow. This is exemplified in the case of James Mackie, who was condemned to die 'for the shameful deflouring, forcing and abusing of Margaret Coltran in Wester Wamphray, a poor cripple lame lass of sixteen years old, lying bedfast in her father's house, and unable to make any resistance,' he having entered the house on a Sunday, when she was there alone."

Statements of the law to a similar effect may be found in other writers, including Alison on the Principles of the Criminal Law of Scotland (1832) at page 209.

5. There is no doubt that, since the time of Hume, cases have been decided, and juries have been directed, in accordance with his statement of the law. However, the cases in which there has been a critical examination of this subject are few. Exceptions are the cases of William Fraser, to which I have already referred, and Charles Sweenie (1858) 3 Irv. 109. Since the opinions delivered by the majority of the members of the court in Sweenie were regarded thereafter as authoritative, I will turn first to that case, leaving over the case of Fraser, on which the Lord Advocate founded, to a later part of this opinion.
6. It may be noted that Sweenie was decided by the votes of five Lords Commissioners of Jusiticiary. The Lord Justice-General (McNeill) delivered an opinion but had no vote since, according to the then constitution of the Court, the presiding judge had no vote where, as in that case, the other members of the Court were not equally divided (see the observations of Lord Neaves in Stewart (1866) 5 Irv. 310 at pages 311 and 315). Lord Justice Clerk Hope, by whom the case had been certified for the opinion of the High Court, had died before the decision. His successor, Lord Justice Clerk Inglis, had not yet assumed office.
7. In Sweenie it was alleged that the accused had had sexual intercourse with a sleeping woman. He was charged under two heads. The first of these was rape. The second was "the wickedly and feloniously having carnal knowledge of a woman when asleep, and without her consent, by a man not her husband". The court held by a majority (Lords Ardmillan, Cowan, Deas and Neaves) that, while the alleged conduct was a serious form of indecent assault, there was not a relevant charge of rape, owing to the absence of the use of force. Accordingly they rejected the view that indecent assault which involved penetration was rape. Thereafter the case of sexual intercourse with a sleeping woman was treated as a form of indecent assault known as clandestine injury.
8. It is plain from the opinions by the members of the court in Sweenie that they regarded the case as a difficult one, and were evidently reluctant to extend what was still a capital crime according to the law, although in practice it had ceased to be visited with a capital sentence.
9. The views of the majority as to the law of rape may be gathered from the following passages. At page 137 Lord Ardmillan said:

"I am of opinion that force - actual or constructive - is an essential element in the crime of rape; that any mode of overpowering the will, without actual personal violence, such as the use of threats, or drugs, is force in the estimation of the law, - and that any degree of force is sufficient in law to constitute the crime of rape, if it is sufficient in fact to overcome the opposing will of the woman; but it must be force employed to overcome the will, and I do not concur in the proposition maintained by the prosecutor, that the mere bodily contact necessarily implied in the act of connection, is sufficient force to satisfy the legal definition. There is, I think, no authority for such a proposition, and on principle it does not commend itself to my mind."

At page 143 Lord Cowan said:

"Now, it is of the essence of the crime of rape, that carnal knowledge of the woman's person should be had, forcibly, and without her consent, in other words, by the adverse will of the woman to the act being overcome by force on the part of the ravisher. It is this that constitutes the crime, according to all the authorities, and nothing short of it will support the charge."

At pages 146-147 Lord Deas said:

"It appears to me that, according to all practice and authority, the libelling of force or concussion, applied either to the person or the will, is necessary, as a general rule, to the relevancy of the charge of rape; and that the cases where this is dispensed with are exceptional."

At page 153 Lord Neaves referred to "the plain simple fact inferring the crime of rape, - that the woman was ravished against her utmost resistance".

10. At this point it is convenient to examine the elements contained in these statements of the law.
11. As regards the use of "force", it is clear that it was differentiated from any force which was involved in the achievement of penetration. On the other hand, the amount of force which was required was seen as dependent on the ability of the woman to resist. It is also clear that "force" was given an extended meaning. It was not confined to direct physical attack, but could consist of threats, at least threats of physical attack. Thus in Sweenie Lord Cowan at page 144 gave an instance of a case

"where, through fear and dread, by threats of death, the woman has been thrown into a state of prostration, - or as when, through such threats, or through actual personal violence at the first meeting of the parties, she had been thrown into a swoon - and then her person ravished".

12. The use of "force" appeared to embrace any means by which the accused overcame the resistance of the woman or rendered her in such a state that she was unable to resist. This included cases in which the victim had been stupefied by the accused in order to enable him to have sexual intercourse with her (see the passage from the opinion of Lord Ardmillan which I have already quoted). In Sweenie Lord Deas at page 148 related cases of drugging to the use of "force" in these words:

"Drugging to the extent of insensibility, is even less remote from direct personal violence, than presenting a pistol to the forehead, or a dagger to the breast, for such drugging overpowers the will by means of physical appliances to the body (no matter whether to the stomach, internally, or by chloroform, or the like, externally), just as much as if the insensibility had been produced by a blow."

There was, however, an artificiality in this use of the word "force". While no doubt the drug had a physical effect upon the woman's consciousness, it may well be that its consumption was not forced upon her and that she willingly ingested it, unaware of what she was doing. In that situation the force which followed would be no more than that involved in achieving penetration in the case of a woman who was not consenting.

13. I turn then to consider the application of the requirement that intercourse had to be "against the woman's will". This clearly meant an "opposing" or "adverse" will (Lord Ardmillan and Lord Cowan in Sweenie at pages 137 and 143). As I have noted, Hume states at I.302: "The resistance must, therefore, be continued to the last". Likewise in Sweenie Lord Neaves spoke at page 153 of "her utmost resistance". Although he dissented from the decision of the court in that case, the Lord Justice General (McNeill) stated at page 156:

"The law does not desiderate more force than is necessary to overcome the power of resistance, which may be greater or less according to the condition of the sufferer, who may be a robust active woman, cool, and self-possessed, or may be the poor cripple lass referred to by Baron Hume. On the other hand, the law does not desiderate more resistance on the part of the woman than her physical condition, whatever it may be, enables her to make."

14. These passages plainly imply that the crime was defined at that time by reference to whether the victim resisted to the extent that would be expected of her. In this connection the court was referred to the directions which Lord Stewart gave to the jury in Barbour v. H.M. Advocate 1982 S.C.C.R. 195. At pages 197-198 he said:

"Now, the crime of rape consists in the carnal knowledge of a woman against her will, her resistance having been overcome. There must be penetration of the body of the woman, that is the vagina, by the private member of the assailant. The important matter is not the amount of resistance put up but whether the woman remained an unwilling party throughout. The significance of resistance is only as evidence of unwillingness."

These directions suggest a shift from treating resistance as a substantive requirement of the law of rape to it being a matter of evidence relevant to unwillingness. While that may be, it was still evidently the case, as the Lord Advocate submitted, that evidence of resistance would be expected unless there was an adequate explanation for its absence. I do not accept the submission of Mr. Moynihan that the matter of resistance was or became only a subsidiary matter.

15. In Stallard v. H.M. Advocate 1989 S.C.C.R. 248 the Lord Justice General (Emslie) in delivering the opinion of the court observed at page 253 that "rape has always been essentially a crime of violence and indeed no more than an aggravated assault". In the light of what I have already examined, it is clear that the aggravation was not seen as consisting of the act of sexual intercourse or the bodily contact which that act involved. It consisted in the "violence" employed to overcome the opposing or adverse will of the woman or at any rate to render it ineffective. If rape were defined by reference to the absence of the woman's consent the act of sexual intercourse would itself become the aggravation in what otherwise would be an indecent assault.
16. I now return to the case of Sweenie. The decision meant that for a man to have sexual intercourse with a woman who was sleeping, and hence without her consent, was not rape but was a form of indecent assault. The same was held to apply to a woman who had been drugged, not by the accused, but by herself or by a third party. Thus in H.M. Advocate v. Grainger and Rae 1932 J.C. 40 it was held by Lord Anderson that an allegation that the accused ravished a woman "while she was in a state of insensibility or unconsciousness from the effects of intoxicating liquor" did not set forth a relevant charge of rape. At page 41 he remarked:

"Just as a sleeping woman is temporarily in a state of unconsciousness wherein she is incapable of exercising her will power, so here it seems to me that the woman was in the same temporary condition of unconsciousness by reason of intoxication."

Likewise in Sweeney and Another v. X. 1982 SCCR 509, in which a conviction of indecent assault involving sexual intercourse was sustained, the court at page 523 described the criminality of such conduct in these terms:

"There is no doubt that, in the law of Scotland, to take advantage in this way of a drunken woman, whose intoxication is solely due to her own voluntary actions, and who is, as a consequence, in no condition to refuse or resist, constitutes the crime of indecent assault."

17. It may be noted that Hume did not deal with the case in which a man took advantage of a woman who had been stupefied by drink or drugs which were not administered by him. In his directions to the jury in H.M. Advocate v. Logan 1936 J.C. 100 at page 102 the Lord Justice Clerk (Aitchison) observed that they might think that the distinction between rape and indecent assault, in the case of a woman who had been made insensible through taking drink, was "a very odd distinction, but it is there on the authorities". He went on to remark that there might have been a reason for the decision in Sweenie because in 1858 rape was not only one of the pleas of the Crown but was also a capital offence. He added: "That may explain the decision, and, in any event, it is binding on me".
18. It can be seen, however, that two members of the majority in Sweenie expressed certain reservations. At pages 148-149 Lord Deas said:

"Cases where the man finds the woman already drugged to insensibility, either by her own act, or the instrumentality of another, without concert on his part, or finds the woman in a faint, would certainly be cases having less in them than the cases just suggested, of the element of force or compulsion used to overpower the person or the will, and upon such cases, I reserve my opinion until they shall actually occur."

At page 153 Lord Neaves expressed the view that if a medical man "abstained from using the proper remedies in the case of a female patient in a state of syncope, and thus took advantage of her position, that would be a strong case for extending the law".

19. However, more powerful than these statements were passages in the opinions of the minority. At pages 140-142 Lord Ivory said:

"If a man finds a woman in such a condition that she can neither consent nor dissent - if he finds an utterly unconscious person, is he without her consent to violate her person? Is this not really a case of force? There is an absence of any active consent, enough to certiorate the person that he is doing an act of violence, and looking to this, and to the doctrine laid down by Lord Cockburn [referring to his opinion in Fraser], I think there is enough to bring the present case up to that of rape. The steps at which I arrive at this conclusion, are those noticed by Lord Cockburn, of a child and a lunatic, where there is absence of power either to consent or to dissent. Consent may indeed be de facto or de jure, but we can scarcely found in such a matter on distinctions so nice as these.

All the dicta of law writers are clear and decided that the use of stupifying drugs or spirits, in order to obtain possession of the woman's person, raises the crime to the category of rape. But if a person finds a woman thus stupified by the act of another, is he to be held less guilty if he takes advantage of her helpless state to violate her? Take the case of a woman who is taken by a man to a place, it may be, otherwise respectable, he plies her with liquor, and thus obtains possession of her person; he is guilty of rape, - the law undoubtedly so holds him. But, if having satisfied his lust, he leaves the woman where he found her, and the waiter comes in and takes advantage of her situation, is his crime less or different, although he has not been a party to what has gone before? He does not literally, perhaps, use force to the woman's person or will, but I cannot draw a distinction on such narrow grounds as these. Then, as to the case of fainting, although not produced by the ravisher, or the case of a woman lying dead in syncope, the answer will be, that this is still a crime, and punishable, though not as rape, but is it not in sense and substance rape? If a medical man is attending a female who is liable to syncope, and during one of his visits, takes possession of her person, I think this is no other than a case of rape. Then take the case of intoxication. A woman is unconscious from intoxication, she is, in popular language, 'dead drunk'. If this degraded being shall be found on the streets, is wheeled to the Police-office, and the policeman, in this instance, as degraded as herself, takes advantage of her helplessness to violate her, it may be said here to be mere absence of consent, but I cannot view the crime as other than rape. All the evil consequences to the woman are the same, the danger of impregnation - the loss of status, - the taint to her family. I think it would dangerous laxity to hold this to be anything less than rape."

At page 157 the Lord Justice General added on the same theme:

"Is it necessary to the crime of rape, that the inability shall have been brought about by an act of the accused, with the design of availing himself of it? It is not so, if the sufferer be a pupil, or of an insane person. I think it is not so in the case of a man who takes advantage of the state of insensibility to which a woman has been reduced by his act and contrivance, although in producing the insensibility, he may not have harboured that design, or may even have intended something different, as would be the case of a medical man, who should take advantage of the inability to resist produced by opium or chloroform, which he had administered for a different purpose to his patient. Such forcible invasion of the woman's person is an assault, - the connection is without her consent, and, I think, that the forcibly invading a woman's person, and having carnal knowledge of her without her consent, through the instrumentality of assault, is nothing less than rape. I think the law would be the same, although the state of insensibility was not at all caused by any act of the accused, but had been knowingly and wickedly taken advantage of by him, such as some of the cases put in illustration by Lord Ivory, the case, for instance, of a woman abused in a state of syncope, or in a state of insensibility from intoxication. In all these cases, the knowledge of the woman's person has been had without her consent, which, as regards the will of the sufferer, is all that the law desiderates when the mind and its faculties are in abeyance, and it has been accomplished by means of assault, which necessarily implies violence, and all the violence that was necessary for the accomplishment of the criminal purpose in the circumstances, and therefore all the violence that the law desiderates in rape."

20. The illustrations discussed in these passages from the opinions in Sweenie were by no means far fetched. Their significance lay in the fact that they put to the test the proposition that force was a general requirement. I find the reasoning of Lord Ivory particularly compelling. There seems to me to be something fundamentally unsatisfactory in the application of a general rule which looks at only those who are adult and who, had it not been for the conduct of the man, would have had an unimpaired ability to withhold consent and to resist his advances. The distinction which is drawn in Sweenie between the woman who has, and the woman who has not, been drugged by the man with a view to taking advantage of her, raises the question: What is more important, the fact that sexual intercourse took place without the consent of the woman, or the means by which this was brought about? Further, if the amount of "force" required to overcome the opposing will of the woman depends on her ability to resist, why does it cease to be a case of rape when the need for such force and her ability to resist have diminished to a vanishing point?
21. It is also of some importance to compare such cases with ones which involved females who were not adult. Hume I.303 states:

"The quality of forcible knowledge, as now explained, is to be understood as applicable only in the case of adult persons. In that of infants, and females under the years of puberty, there is only a constructive force, or force in the estimation of law; and it is holden so in the law upon this reasonable ground, that because of her simplicity, and her defect, as well of appetite as intelligence and discretion, the female, at those years, is incapable of a due consent to this act, and cannot, in any proper sense, be said to have a will in the matter; so that the deed may justly be said to be done without her will, even where she makes no resistance. On that account, and as the wickedness is even greater in this depraved abuse of an ignorant child; so the appellation of the crime and the pains of law have always been the same, as in the case of force employed against a woman of mature age and discretion."

Alison at page 213 states:

"In charges of rape, the quality of violence is only required in females above the age of twelve years; below that age it is held that consent cannot be given, and that the connexion must have been involuntary."

22. Similar explanations of the treatment of females below the age of 12 years are given in the opinion of the majority in Sweenie. Thus at page 137 Lord Ardmillan said:

"In the case of a child, and perhaps also in some peculiar cases of insanity, or imbecility, the law holds such persons to have no will in the matter of connection; and the act in such case, though not actually forcible, is forcible 'in the estimation of law'. This is the opinion of Baron Hume. Accordingly, the element of force as applied to the overpowering of will, is introduced by long settled legal presumption in every case of connection with a child. It is a presumption which cannot be redargued; no proof of consent can set it aside; and the act of connection with a child is, in consequence of that presumption, uniformly and necessarily the crime of rape, not in respect of any lowering or modifying of the requisites of the crime, but in respect of that legal presumption, which gathers from the infancy of the victim the element of force essential to the definition of the crime."

23. The same reasoning was applied to persons suffering from such a mental abnormality as to be regarded as incapable of giving a valid consent. Thus sexual intercourse with females under the age of 12 or those who suffered from such mental abnormality was deemed, in the words of Hume, to have been brought about by "constructive force, or force in the estimation of law". It may also be noted that in Fraser Lord Medwyn (at pages 303-304) treated the case in which an adult woman of sound mind had been stupefied by the accused in order to enable him to have sexual intercourse as an example of "constructive force".
24. I now turn to the case of Fraser. In that case it was alleged that the accused had sexual intercourse with a married woman by pretending to be her husband. He was charged under two headings. The first was that of rape. The second was "the fraudulently and deceitfully obtaining access to and having carnal knowledge of a married woman, by pretending to be her husband, or otherwise conducting himself, and behaving towards her so as to deceive her into the belief that he was her husband". The members of the court, which comprised seven judges, were agreed that the latter charge constituted a serious crime, being a species of fraud. However, they held by a majority (composed of Lords Medwyn, Cockburn and Wood, along with the Lord Justice General (Boyle)) that the circumstances did not constitute a relevant charge of rape. The majority gave differing reasons for that conclusion. Lord Medwyn was of the opinion that the case went beyond the scope of what should be regarded as "constructive force", observing that the sexual intercourse in that case was not against, or even without, the will of the woman, but was with it (page 304). The Lord Justice General observed that there was nothing like the administration of drugs, but merely the deception of a woman who was not asleep. Had she been asleep "that would have been entirely a different case" (page 314). Lord Cockburn rested his conclusion on the view that want of consent on the part of the woman was not implied by her yielding from misrepresentation (page 309). Somewhat surprisingly, Lord Wood expressed his agreement with the opinions of both Lord Medwyn and Lord Cockburn.
25. The opinion of Lord Cockburn is of particular interest in his analysis of the significance of lack of consent. At page 308 he said:

"Now, I can gather nothing from our books, except that the crime of rape consists in having intercourse without the woman's consent. It is sometimes said that it must not only be without her consent, but forcibly. But this is plainly said loosely; merely because where consent is withheld, force is generally resorted to. It is not meant that there must be positive physical force, as a substantive element; but only that constructive force which is implied in the absence of consent. It is in the absence of consent that the essence of the crime consists. Force is only the evidence, and the consequence, of the want of consent, but is not necessary for the constitution of the crime. Hence, the crime is unquestionably committed whenever consent is impossible, though there may be no force; as in the cases of intercourse with children, or lunatics, or with women in intoxication, or in faints, though these may not have been produced by the ravisher. An insane woman, instead of requiring force, may actually concur; but because she cannot consent, the connexion is rape."

26. The approach taken by the minority of the members of the court in Fraser is also instructive. At page 298 the Lord Justice Clerk (Hope) said:

"The whole reasoning of the pannel, in my apprehension, is founded on some older definitions and notions of the crime of raptus, which seem to have been chiefly in view at a former period of the law, and is founded on the great error of looking to the actual violence to the woman's body, and to the physical act of connection, not to the essential matter of her will, of her consent, or her knowledge."

At page 302 Lord Mackenzie said:

"It is said that there must be violence and assault, but it appears to me, from the nature of the thing, that there must be violence, unless there has been consent...The act here was done certainly without resistance, but it was rape if it was done without consent."

At page 303 Lord Moncrieff, concurring with the Lord Justice Clerk and Lord Mackenzie, said:

"In general, I am of opinion that the crime of rape consists, not in force or violence, but in having carnal knowledge of a woman without her consent, and against her will".

27. Thus it may be seen that at least four members of the court, namely Lord Cockburn and the three judges from whose opinions I have last quoted, supported the view that the essence of rape was that the man had sexual intercourse with the woman without her consent. If that view had been applied in the case of Sweenie, it would have led to the opposite result. What divided the four judges to whom I have referred was the question - which to my mind is a difficult question - whether the fact that the woman had been deceived by the accused meant that she did not truly consent to sexual intercourse with him. I would add that adoption of the formulation given by Lord Cockburn would have gone a long way to achieving a common and consistent approach to the definition of rape.
28. I have not so far examined the question of mens rea. In Hume there is no reference to the intention or knowledge of the accused. In Meek and Others v. H.M. Advocate 1982 S.C.C.R.613 the court was referred to the discussion of mens rea in the English law of rape in R. v. Morgan [1976] A.C. 172. At page 618 the Lord Justice General (Emslie) in delivering the opinion of the court made the following observations:

"We have no difficulty in accepting that an essential element in the crime of rape is the absence of an honest belief that the woman is consenting. The criminal intent is, after all, to force intercourse upon a woman against her will and the answer to the certified question given by the majority of their Lordships in Morgan is one which readily accords with the law of Scotland. The absence of reasonable grounds for such an alleged belief will, however, have a considerable bearing upon whether any jury will accept that such an 'honest belief' was held."

In Jamieson v. H.M. Advocate 1994 JC 88 the court approved these observations. The Lord Justice General (Hope), delivering the opinion of the court, stated at page 92:

"The crime of rape consists in the carnal knowledge of a woman forcibly and against her will. Thus the mens rea of this crime includes the intention to have intercourse with the woman without her consent. The absence of belief that she was consenting is an essential element in it. If a man has intercourse with a woman in the belief that she is consenting to this, he cannot be guilty of rape. Now, the question whether the man believed that the woman consented is a question of fact. It is a question which the jury must decide, if it is raised, on the evidence. The grounds for his belief will be important and if he has reasonable grounds for it, the jury may find it easier to accept that he did honestly believe that the woman consented. But it will be open to the jury to accept his evidence on this point even if he cannot give grounds for it which they consider to be reasonable, and if they accept his evidence they must acquit him. This is because the question is whether he genuinely or honestly believed that the woman was consenting to intercourse. It will not do if he acted without thinking or was indifferent as to whether or not he had her consent. The man must have genuinely formed the belief that she was consenting to his having intercourse with her. But this need not be a belief that the jury regards as reasonable, so long as they are satisfied that his belief was genuinely held by him at the time."

29. It may be noted that the implication of the court's decision in Jamieson was to distinguish between the man who failed to think about, or was indifferent as to, whether the woman was consenting (which might be described as subjective recklessness); and the man who honestly or genuinely believed that the woman was consenting but had failed to realise that she was not consenting when there was an obvious risk that this was the case. The latter might be described as objective recklessness. This distinction was not examined in the course of the discussion in the present reference.
30. The court was invited to consider the formulation of the requirements for the crime of rape which apply in the law of England and other countries in the British Commonwealth. I have not found this exercise to be useful or reliable. In this context the historical roots and concepts of another system cannot be assumed to be similar to those of the law of Scotland. Furthermore, the position in many other countries has been largely superseded by legislation. Accordingly I consider that it is best to consider the present issue against the background of the historical development of the law of Scotland.
31. In the light of what I have examined above I make the following observations. First, while it was repeatedly stated there was a need for the "opposing" or "adverse" will of the woman to be forcibly overcome by the man, as if this was a rule, it is plain that certain types of case which did not satisfy that requirement were treated as rape, and no doubt rightly so. Thus, in the case of a woman who was under the age of 12 or who suffered from a certain degree of mental abnormality, there was a presumption of "constructive force". However, in these cases the "force" was no more than a fiction. What these cases shared with others in which neither of these features were present was that there was an absence of a valid consent. Secondly, as I have already noted, the concept of "force" was artificially extended to cases in which the accused had used no actual force but had used some means of putting the woman in a state in which she was incapable of resisting. Thirdly, it is reasonably plain that the amount of force, on the one hand, and the amount of resistance, on the other, which were required to bring a case up to being one of rape were seen as depending on the situation of the woman. Yet in Sweenie where the woman's ability to resist, let alone to consent, was non-existent, the court declined to regard the case as one of rape, on the ground that there had been no force. It is clear that in taking this decision the court was influenced by a reluctance to extend the scope of a capital crime. It is plain that if the court had regarded the case as one of rape it would have taken a different view of the essentials of a case of rape. Fourthly, it is, in my view, of some importance that in Jamieson v H. M. Advocate the court defined the mens rea of rape by reference to the accused's belief that the woman consented. [31] These considerations strongly suggest to me that Sweenie was wrongly decided, and that it is not correct to regard the use of "force" to overcome the woman's "opposing" or "adverse" will as a rule of the common law of rape. It is to be noted that Hume did not address the case of the woman who had been rendered incapable of resisting when this had not been done by the man with a view to obtaining sexual intercourse with her. Further, as I have already mentioned, there was no treatment of the mens rea in the crime of rape. It appears that he was more concerned with describing the kind of evidence which was regarded as providing proof of the crime in certain situations. He did not set out the kind of analysis which later decisions showed to be necessary if there was to be a definition of the crime which held good in all situations.
32. It is, of course, necessary to take into account the practical implications of correcting the statement of the law of rape after so many years. For the former accused Mr. Moynihan emphasised that the court was being asked to re-consider what had long been accepted and followed. This would have an effect upon the scope of the crime of rape. Thus, by way of illustration, he pointed out that the accused, whose convictions of indecent assault were upheld in Sweeney and Another v. X., should have been convicted of rape. It would also mean that there had been no need to define clandestine injury to women as a type of criminal conduct. Its distinctiveness was now recognised in section 274(2)(c) of the Criminal Procedure (Scotland) Act 1995. The treatment of criminal conduct as clandestine injury rather than as rape should not be regarded as devaluing its seriousness. According to the circumstances it could in fact be more grave. If there was a concern about the adequacy of sentence for such a case, this could be the subject of an appeal by the Lord Advocate. Mr. Moynihan also pointed out that, if the proposed re-definition were adopted, it would not be rape where a female under 12 years consented to sexual intercourse, unless, that is, the law was to create a fiction that she had not in fact consented.
33. Mr. Moynihan also drew attention to the extent to which, after the cases of Fraser and Sweenie, provision had been made by statute for various offences where it was perceived that the common law had not provided adequate protection. In particular he drew attention to section 7(3) of the Criminal Law (Consolidation)(Scotland) Act 1995 which provides: "A man who induces a married woman to permit him to have sexual intercourse with her by impersonating her husband shall be deemed to be guilty of rape." This provision was the modern version of what had originally been introduced by section 4 of the Criminal Law Amendment Act 1885. Mr. Moynihan submitted that this showed that the decision in Fraser had been overtaken by legislation, and that no reliance could be placed on what had been said by Lord Cockburn in that case . Mr. Moynihan also referred to section 5(1) of the 1995 Act (also derived from section 4 of the 1885 Act) which made provision for the offence of unlawful sexual intercourse with girls under 13. Provision had also been made for the protection of mentally handicapped persons, currently under section 104 of the Mental Health (Scotland) Act 1984.
34. Mr. Moynihan also submitted that the present case was not a suitable one in which to review the law of rape, since the Crown had failed to seek the alternative of a conviction of indecent assault in reliance on section 14 of the Criminal Law (Consolidation)(Scotland) Act 1995, or at any rate in regard to the other conduct alleged against the accused i.e. other than sexual intercourse. He also emphasised that there could be difficult questions of corroboration. There was an existing question as to whether evidence of distress could corroborate evidence from the complainer that the accused had used force against her at the earlier stage when the intercourse between them had taken place. This had, unfortunately, been conceded in the case of Fox v. H.M. Advocate 1998 J.C. 94. Moreover, it was to be noted that in some of the opinions which were delivered in Fox it was remarked that independent evidence could fail to have corroborative effect since it was of an essentially ambiguous nature. Mr. Moynihan submitted that it could not be taken that distress some time after the event could provide corroboration of the accused's knowledge that the complainer was not a consenting party at the time when sexual intercourse between them took place.
35. I do not find these arguments to be persuasive. It is necessary to keep in perspective the effect of a correction of the statement of the law upon the scope of the application of the law of rape. It would not involve rendering unlawful what is at present lawful. As I have already stated, rape would continue to be treated as an aggravated assault, with the aggravation constituted by the sexual intercourse having taken place without the consent of the woman. This of itself involves the criminal use of force. As Lord Mackenzie observed in Fraser at page 302, "there must be violence, unless there is consent". Thus a charge of rape would be expected, as at present, to libel assault. The various ways in which the accused is alleged to have used force, including that involved in the achieving penetration, would be libelled, not only as relevant to proof of the absence of consent and the accused's knowledge or recklessness, but also because of themselves they would be criminal in nature. It is likely that in a great many cases the evidence would show not merely that the sexual intercourse took place without the consent of the woman, but also that her will to oppose the accused had been overcome by him. Evidence of refusal and resistance, on the one hand, and overpowering or overcoming by the accused, on the other, would continue to be relevant, but in connection with proof of his mens rea.
36. I do not consider that the developments of statute law to which Mr. Moynihan referred affect the issue which is before this court. None of the examples show that the development of the common law would be in conflict with, or inhibited by, statute. Rather they show in the past that steps were taken in the light of the current understanding of the common law to create additional provisions for the protection of members of the public in certain categories of case. These provisions were essentially supplementary in nature. Thus the fact that it is a statutory offence for an accused to have unlawful sexual intercourse with a girl under 13 years of age has not prevented accused persons from being prosecuted for the common law crime of rape where the girl is under 12 years of age. The statutory offence of impersonation is limited to the case where the impersonation is that of a husband. Otherwise the common law applies. The question whether such a case is truly one of rape depends on the difficult question whether the woman's apparent consent to intercourse is or is not vitiated by her error as to the identity of the person with whom she has intercourse. This is not a matter which requires to be resolved in dealing with the present reference.
37. I am not impressed with the argument that the present case is not a suitable one in which to review the law of rape. The question raised in the present reference is not a new one. It was raised in the case of Fraser. The views expressed by the judges in that case were regarded as superseded by the decision in Sweenie. However, the arguments about the true nature of the crime of rape have continued, and in modern times have been renewed with greater vigour, not only in textbooks, but also in public discussion of this important subject. For these reasons I do not consider that this is an inappropriate occasion on which to review the law.
38. The sufficiency of evidence that the accused knew that the complainer was not consenting to intercourse, or at any rate was reckless as to her consenting - including corroboration of that evidence - plainly would need careful consideration. However, it does not appear to me that this provides a satisfactory ground for rejecting a correction in the statement of the law of rape. Whether that came about by way of judicial decision or by way of statutory intervention, the issue is the same. I should, however, comment on one submission made by the Lord Advocate at an advanced stage of his argument before this court. He appeared to submit that the mens rea of the accused could be inferred from the fact that intercourse had taken place without the consent of the complainer. This submission does not appear to me to be well founded. It may well be the case that the evidence given by a complainer, when taken along with that of independent witnesses, is sufficient to prove both the actus reus and the mens rea without the need for any additional evidence as to the latter. However, if a complainer's evidence added up to no more than that she had not consented to the sexual intercourse, without saying or doing anything to indicate to the accused that this was her attitude, she could hardly be regarded as giving evidence of the accused's mens rea.
39. I turn finally to some wider considerations. I do so on the basis that the absence of the woman's "consent" refers to a lack of active consent, as opposed to mere submission or permission. It is clear that the statements of the law of rape on which the courts have proceeded in the past have been based on the view that in general it was not enough that the woman did not consent to sexual intercourse, and was known not to consent. It has been essential that her will to resist has been overborne by the man.
40. I agree with the submission of the Lord Advocate that it may be questioned whether this approach is in accordance with a modern view of the rights of women, their relationship to men and their place in society. The criminal law exists in order to protect commonly accepted values against socially unacceptable conduct. What does the law of rape seek to protect in the modern world? It may be said with considerable force that it should seek to protect a woman against the invasion of her privacy by sexual intercourse, that is to say where that takes place without her consent. What happens with her consent on one occasion should not determine what is acceptable on another. In the present day, in which there is considerable sexual freedom, both in and out of marriage, should the law of rape not support the principle that whether there is to be sexual intercourse should depend on whether the woman consents, wherever and whenever she pleases?
41. I am conscious that a court of law should not take upon itself what is properly the function of the legislature. However, it is well recognised that the common law should take account of contemporary attitudes and mores. As has been said before, a live system of law should be responsive to changing circumstances. Thus in Stallard v. H.M. Advocate the court held that the statement in Hume I.306 that the husband cannot be guilty of raping his wife because she rendered her person to him did not correctly represent the law in the second half of the 20th Century. That case was, of course, concerned with the removal of an exception in the law of rape, whereas the present issue is of a more fundamental kind.
42. I come now to my conclusions. I do not find it useful to answer the questions set out in the reference, but prefer to use my own words to express the substance of my response to them. For the reasons given in the earlier part of this opinion I consider that the decision in Sweenie was not correctly decided at the time when it was decided and should be overruled, and the general rule relating to the law of rape is correctly stated by reference to the woman's lack of consent. I should add that I do not consider that there is any impediment to this Court overruling Sweenie. None was suggested in the argument before this Court. Standing the composition of the Court in that case, and in particular the absence of a Lord Justice Clerk, I am not satisfied that the decision can be regarded as one of the Whole Court. Hence the question whether the decision of a Whole Court can be overruled, which was raised but not decided in Sugden v. H.M. Advocate 1934 JC 103, does not arise.
43. I have reached my conclusions in regard to the law of rape without reliance on the wider considerations to which I have referred. However, if there were concern about correcting statements of the common law which have stood for so many years, such a concern should be allayed in view of these considerations.
44. In my view this court should hold that:

(i) the general rule is that the actus reus of rape is constituted by the man having

sexual intercourse with the woman without her consent;

2. in the case of females who are under the age of 12 or who for any other reason

are incapable of giving such consent, the absence of consent should, as at present, be presumed; and

(iii) mens rea on the part of the man is present where he knows that the woman

is not consenting or at any rate is reckless as to whether she is consenting. Standing the decision in Jamieson and in the absence of discussion of this topic in the present reference, "reckless" should be understood in the subjective sense to which I have referred earlier in this opinion.

Watt, Re Lord Advocate's Reference [2002] ScotHC 35 (22 March 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Marnoch Lady Cosgrove Lord Nimmo Smith Lord Wheatley Lord Menzies Lord McCluskey	163/01 OPINION OF LORD MENZIES in LORD ADVOCATE'S REFERENCE No. 1 of 2001 by HER MAJESTY'S ADVOCATE in terms of Section 123 of the Criminal Procedure (Scotland) Act 1995 Referring for THE OPINION OF THE HIGH COURT Points of law arising in relation to a charge upon which, on trial in the High Court at Aberdeen there was acquitted EDWARD RICHARD WATT _______

 

 

Appellant: The Lord Advocate; Crown Agent

Respondent: Moynihan, Q.C, Moggach; Le Fevre Litigation

22 March 2002

I am completely in agreement with the opinion of your Lordship in the chair, and have nothing further to add.

Watt, Re Lord Advocate's Reference [2002] ScotHC 35 (22 March 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Marnoch Lady Cosgrove Lord Nimmo Smith Lord Wheatley Lord Menzies Lord McCluskey	163/01 OPINION OF LORD McCLUSKEY in LORD ADVOCATE'S REFERENCE No. 1 of 2001 by HER MAJESTY'S ADVOCATE in terms of Section 123 of the Criminal Procedure (Scotland) Act 1995 Referring for THE OPINION OF THE HIGH COURT Points of law arising in relation to a charge upon which, on trial in the High Court at Aberdeen there was acquitted EDWARD RICHARD WATT _______

 

 

 

 

Appellant: The Lord Advocate; Crown Agent

Respondent: Moynihan, Q.C, Moggach; Le Fevre Litigation

 

22 March 2002

45. This case has taken a most unusual course; and I consider it important to take note of what has happened. At the conclusion of the Crown case, at the trial, defence counsel moved the trial judge to withdraw the case from the jury on the ground that there was no evidence that the accused had used force in order to achieve sexual intercourse with the woman named in the Indictment. In the absence of such evidence, it was submitted, the Crown case must fail, because (in the case of an adult woman of sound mind) the use of force to overcome the opposing will of the woman was an essential ingredient in the crime of Rape as defined in the law of Scotland. The Advocate-depute, on behalf of the Crown, expressly accepted that the use of force was an essential ingredient in that crime in the instant case, in which the woman was adult and of sound mind. It is thus clear there was no dispute before Lord Abernethy as to the law to be applied. The only issue that he was required to resolve was whether or not the evidence adduced by the Crown was evidence sufficient to establish that the accused had used force to overcome the will of the woman. Having concluded that the evidence led was not sufficient to establish the use of force, he did exactly what any other Scottish judge would have done on that view of the facts; he applied the undisputed law and withdrew the case from the jury. That decision led to some ill-informed public clamour, to the effect that Lord Abernethy had somehow made new law. He had done nothing of the kind. He applied the law as it had been formulated and applied in Scottish courts for centuries. He was bound to do so because his judicial duty required him to apply the law as it had been determined and applied by appeal courts whose decisions were binding upon him (and upon every other trial judge sitting with a jury in Scotland).
46. The Lord Advocate then decided to bring the case to the High Court by way of a reference under section 123 of the Criminal Procedure (Scotland) Act 1995. He did so upon a new basis, a basis never suggested to Lord Abernethy, and diametrically contradictory to the submission made by his depute on behalf of the Crown at the trial. The Lord Advocate's novel submission in this court was that the use of force was not an essential ingredient in the crime of Rape in the law of Scotland. He acknowledged that the High Court of Justiciary, in the case of Sweenie (1858), had ruled that the use of force was necessary, at least in any case in which the woman was a mature adult of sound mind. Thus it was clear that the Lord Advocate's argument could not succeed unless the case of Sweenie was overruled. A court of three, or even of five , judges could not competently overrule the decision in Sweenie , in which there had been six judges on the bench. The Lord Advocate's reference by way of a Reference under section 123 of the 1995 Act ) therefore came to be argued before a court of seven judges. I must return to this aspect of the matter later.
47. The main issue in this case is fully discussed in the Opinion of the Lord Justice General; and it is unnecessary for me to rehearse the general background to the current law on Rape in Scotland. There are, as we all recognise, two reported decisions of this Court that are of overriding importance, and I shall consider them in detail. Before I do so, however, I consider it necessary to draw attention to certain important features of our system of Common Law. They include the concept of judicial precedent. In any case before the High Court, the judges have to decide those points of law that are necessarily raised for decision by the facts of the case. They then have to apply the law, as so determined, to the case before them. The judges are not engaged in academic analysis: they are ascertaining the law to apply it in a real case which they have to decide. In the course of explaining the reasons that have led them to the conclusions reached, they may express views on related aspects of the relevant law. Such expressions of view, commonly referred to as obiter dicta, are not statements of law binding upon other judges or other courts; their value, if any, lies in their persuasiveness, in the quality of the reasoning that supports them. By contrast, any decisions by the court on the point or points of law that have had to be decided in order to reach the result in the case under consideration become authoritative: that is to say, those decisions determine, define, declare the law; and other judges in later cases have to apply the law as so determined. The applied decision is binding upon any court that has to determine the same issue; we refer to such decisions as "binding precedents". In order to apply, in later cases, the law that has been determined in any such real case, it is necessary for the judges in the later cases to look analytically at the earlier decided case in order to ascertain exactly what the relevant facts in that case were, so as to identify the precise legal rule or rules that the court had to apply, and did apply, in order to reach the decision reached: that analysis produces the ratio decidendi. In English, that means the reasoning that the judges necessarily used in order to yield the conclusion that the court reached on the point of law decided. Another way of describing the ratio decidendi is to say that it is the reasoning that expresses the principle, or rule, of law that falls to be applied in all such later cases. In that limited sense, the reasons necessary to support the actual decisions in real cases become part of the law that then has to be applied in all other cases that are indistinguishable on their essential facts. It is only in that very limited sense that judges 'make' law; they do not claim, and do not possess, the power to make law in the sense that legislators make law; what they do is to declare the law as they understand it to be, and apply it, at the time of the decision.
48. The next point that I wish to emphasise is that judges have no constitutional right to say that they do not like the law as it is, or that it has gone out of date, and that, therefore, they, the judges, will change it. (I shall consider later the maxim cessante ratione cessat ipsa lex.) One of the interesting and vital aspects of this constitutional feature of the judges' powers is that, if the judges, sitting in a court that is applying the law in a real case, decide that the law has been incorrectly determined, stated and declared in any earlier authoritative ruling of the High Court of Justiciary, then those judges do not declare that henceforth the law will be changed; what they decide and announce is that the law is, and always was what they have now determined it to be. The court overrules any previous court decision that contradicts the law as newly formulated. Once they have been overruled, the cases that were formerly treated as binding precedents lose their 'binding' character: they cease to be treated as correct formulations and applications of the law. The previous precedents are overruled not on the basis that the judges do not like them, or find the reasoning behind them unpersuasive, but on the basis that they were wrongly decided. Perhaps, to some laymen, this is not known and understood; but it is an essential feature of our constitutional and judicial system. In contrast, when Parliament decides to change, i.e. to reform, the law and to make new law, it almost invariably causes the new law to apply from a date no earlier than the date of the coming into force of the new legislation. (Parliament may decide to make a new law retrospective, but only in extreme circumstances.) I refer to this constitutional feature of the matter because it also serves to illustrate clearly that judges do not 'make' law in the ordinary meaning of that word; they simply declare what the applicable law is. It follows that judges do not start by enquiring into what the common law should be; their focus is and must be on what the common law is. If they reach the view that the law as it has been understood and applied until that time is producing unacceptable results, then they are perfectly entitled to look into the origins and history of that law to see whether or not it has its origin in some discernible mistake that has been made in the past and whether or not such a mistake is now able to be corrected by the Court. The alternative is to leave it to Parliament to decide if legislation should be enacted to reform the law. Judges are entitled to express their opinion that the established law appears to be producing unacceptable results and that it appears to be in need of change; but, unless they can find the existing law to be wrong, as a result of a discernible mistake, they must leave the possible reform of the law to the legislature. This fundamental point is stated clearly by Lord Cockburn in William Fraser at p. 307. In relation to the averment central to that case - that the accused had carnal knowledge of the married woman by pretending to be her husband - he says, "That it amounts to a great offence is certain; - so great that a court is naturally under some temptation to stretch the law, so as to reach it under its most severely punishable form. But I am jealous of this feeling. We are not entitled to create, or to aggravate, crimes by fanciful analogies or speculative expediency. We are only entitled to draw new forms of delinquency within the operation of established principles, by applying these principles according to their plain and understood meaning. The question, therefore, is, not if what be charged be as bad as rape, - or worse; but is it this exact offence, as it stands actually described in the law?". In short, judges, in deciding cases in court, have no power to reform the law. The principle that lies behind the constitutional duty of judges to apply the law as they find it, rather than as they think it should be, is that justice requires that the law should, as far as possible, be certain. This principle was well expressed by Lord Eldon in Sheddon v Goodrich 8 Ves. 497, "It is better that the law should be certain than that every judge should speculate upon improvements in it".
49. When we examine previous authorities we do so to see if they formulated the law correctly or incorrectly. We cannot do what Parliament can do, namely hear evidence, make judgments about public policy or conflicts of interest or revise the moral basis of the law in the light of changes in public attitudes or of social circumstances. We cannot even do what the Supreme Court in the United States of America can do and entertain a Brandeis brief, setting forth a factual context for settling the law. Nor can we do what the House of Lords did in Regina v. Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte [2000] 1 AC 61 and admit submissions from interested parties to see if they can shed light upon an entirely novel problem. We can do no more than determine what the law now is, and apply it to the case in hand.
50. I regret if these observations appear to lawyers and constitutionalists to be trite and elementary. But I emphasise them because such matters are sometimes misunderstood outside the courts; and it is important that laymen, whether parliamentarians or commentators, should realise the constitutional distinction between, on the one hand, ascertaining what the law truly is, in order to apply it to a case, and, on the other, engaging in a deliberate change of the law in order to reform it.
51. . As my opinion as to the result of the present Lord Advocate's Reference depends crucially upon my analysis of what the Court did in the cases, of William Fraser and Sweenie I turn first to consider them. The case of William Fraser is fully reported in (1847) Arkley 280. The submissions are there clearly summarised; they were fully researched and scholarly. The issue that the Court had to determine was whether or not the Indictment relevantly charged the crime of Rape in circumstances in which what was averred was that the alleged rapist had not used force to overcome any resistance by the woman whose bed he had entered. The wording of the Indictment made it plain that what the prosecution intended to prove was that the accused had had carnal knowledge of the woman's person, "only by your having imposed upon and deceived her ... into the belief that you were ...her husband." The judges did not doubt for one instant that what the Crown were offering to prove was a wicked and serious crime; but they concluded by a majority that it was not correct to call that crime 'Rape'. The distinction between the crime of Rape, as known in the law of Scotland, and any other crime - however similar in character and wickedness - was of vital importance in 1847, because Rape was then a capital crime, one of the four 'pleas of the Crown': It could be indicted only in the High Court. In law though by then not in practice, it carried the death penalty. So the question that the court had to decide was no mere academic, lawyers' question about choosing the correct legal name (nomen juris) to describe a particular kind of criminal conduct; it was, in law, a matter of life and death. And, because Rape was a "plea of the Crown", the decision affected the jurisdiction of the Sheriff Court in which rape could not be tried; but in which the court could try even very serious indecent assault cases. The judges in the case of William Fraser understood perfectly well that their task was to see if the facts alleged in the Indictment amounted to the crime of Rape as then understood in the law of Scotland. They were not conducting an enquiry into what the law should be or might be or how it might be improved. They were thus engaged in what was essentially a technical task, that of discovering exactly what the law then was, so that it might be applied fairly and properly to an unprecedented situation. The decision in William Fraser was that what was averred in the Indictment did not amount to the crime of Rape as known to and understood by the common law of Scotland. The reasoning of the judges is of course of the greatest interest; but, in analysing the case to see what its ratio decidendi is, we have to start by discovering exactly what the decision was.
52. Ascertaining the ratio decidendi of a case is a two-stage process. The first stage is to discover precisely what the decision was; the second stage is to discover what was the reasoning that was necessary to yield that decision. The decision in William Fraser - a case where the woman was adult and mentally normal - was that, because the absence of consent by the woman to intercourse was an essential element of the crime of Rape as understood in Scots law, Rape - properly understood - could not have been committed in the circumstances of that case; those circumstances, according to the Crown, being that the woman had in fact given her consent, albeit in the mistaken belief that the man who had entered her bed was her husband. The reasoning that necessarily led to that decision cannot be found by examining the opinions of the three judges who disagreed with that decision (the Lord Justice Clerk, Lord Mackenzie and Lord Moncrief). The reasoning constituting the ratio decidendi has to be found in the opinions of the four judges whose votes decided the narrow legal issue as to what, in the circumstances averred, amounted to consent. It is no doubt correct four of the judges (namely Lord Cockburn and the three who dissented) would have decided, if the point had been one that it was necessary to decide, that, in the absence of consent, proof of the use of force was unnecessary - in the case of a mentally normal adult woman. But that point did not arise for decision in William Fraser: because, whatever view the judges might have arrived at on that point, the result of the case would have been the same, namely that the charge contained in the Indictment was not a relevant charge of Rape. Accordingly, in my opinion, that case did not determine whether or not the use of force to overcome a refusal of consent by the woman was an essential ingredient in the crime of rape. So, even although the Sweenie judges expressed views on this aspect of the matter, and offered their varying interpretations of what was truly meant and embraced by the well known and universally accepted description of Rape as carnal knowledge "of the woman's person, forcibly and against her will" Hume p. 301 (emphasis added) , the Court did not have to decide authoritatively what was meant by "forcibly and" it did not have to decide that point because there was no allegation in the Indictment, , that there had been any refusal of consent by the woman. Accordingly, if the Crown were clearly not intending to prove that, in fact, she had refused consent to intercourse, the issue of the use of force to overpower her will could not and did not arise as an essential element of the case that the court had to decide. It follows that the observations of the judges on the essentiality or otherwise of the use of force to overcome a refusal of consent were, in the sense explained earlier, obiter dicta: they were mere expressions of opinion (however persuasive) on matters not arising necessarily for decision. These expressions of opinion were not part of the ratio decidendi. We cannot find the ratio in the opinions of the dissenting judges on a matter that did not arise for decision.
53. It follows that the decision in William Fraser changed nothing in relation to the issue as to whether or not the use of force was a necessary element in the crime of Rape committed upon an adult woman of sound mind. William Fraser did not alter the previously established law. It merely reaffirmed that, in the case of sexual intercourse with an adult woman of sound mind, it was essential, in order to support a charge of Rape, for the Crown to be able to allege that the woman had not given her consent to the intercourse, (to put it another way,. that refusal of consent was one of the constituent ingredients of the crime of Rape). It did not establish that refusal of consent by the woman was all that had to be proved in addition to the sexual penetration. For these reasons, it would, in my opinion, be a mistake to accept what I understood to be the Lord Advocate's submission that this court should 'restore' the law to what, it was submitted, it had been found to be in William Fraser, namely that, in the case of an adult woman, Rape could be established by proof of intercourse without consent, and nothing more. That was not what William Fraser decided. The law defining rape was the same after the decision in William Fraser as it had been before. . If the views of the dissenting judges on the issue of force had been part of the ratio in William Fraser then the court in Sweenie could not have arrived at the decision it did without overruling William Fraser. The fact that Sweenie did not overrule William Fraser demonstrates that the court in Sweenie realised that the court in William Fraser was deciding not about force but about consent.
54. In Sweenie (1858) 3 Irv. 109, the issue that the court had to decide arose out of the circumstances averred in the Indictment, namely that the accused had intercourse with a sleeping woman (the wife of another man) by entering her bed by stealth and sexually penetrating her while she slept. The case was thus quite clearly one in which the sexual penetration had taken place without the consent of the woman, but the accused had used no force to overcome any resistance by her: there was no force used other than involved in the physical act of sexual penetration. Thus the question - as to whether or not the use of force (when the woman was adult and of sound mind) was an essential ingredient in the crime known to Scots Law as 'Rape' - went to the heart of the case. The court decided that in the case of an adult woman of sound mind the crime of Rape was not committed unless the sexual penetration was accomplished by the man's using force to overcome the woman's will. The ratio decidendi of the case is expressed precisely in the opinion of Lord Ardmillan (at p. 137):

"....I have arrived at the conclusion, that the facts here alleged do not amount to the crime of rape. I am of opinion that force - actual or constructive - is an essential element in the crime of rape; that any mode of overpowering the will, without actual personal violence, such as the use of threats, or drugs, is force in the estimation of the law, - and that any degree of force is sufficient in law to constitute the crime of rape, if it is sufficient in fact to overcome the opposing will of the woman; but it must be force employed to overcome the will, and I do not concur in the proposition maintained by the prosecutor, that the mere bodily contact necessarily implied in the act of connection, is sufficient force to satisfy the legal definition."

55. The words used by Lord Ardmillan, "in the estimation of the law" were used earlier by Hume. The related term "constructive force" is employed repeatedly by the judges in dealing with cases concerning non-consensual sexual intercourse with females who, for whatever reason, cannot properly be described as both adult and of sound mind (for ease of reference, I shall refer to them as 'vulnerable females'). Thus we find the judges and legal writers of the 18^th and 19^th centuries discussing what the law as to Rape was in relation to a man's having sexual intercourse with a very young female child or with a woman whose mental age is that of a very young child. In such cases the judges were well aware that it would be utterly obnoxious to enable the man to say, "She consented"; or " I did not overcome her will". So the common law had adopted a familiar legal device: it created a non-rebuttable presumption that such a female could not "consent" to sexual intercourse. So, in such a case, the issue of consent in fact could not arise: the fact that any such female had agreed to have intercourse was entirely irrelevant: the legal rule was that, regardless of the facts, such a person could neither give nor even withhold 'consent' in law: actual consent had nothing to do with it. So there was no room, in such cases, for the element of overcoming the victim's will forcibly or otherwise: in such a case, no question could arise as to what the victim's will was at the time of the sexual intercourse. It would, I believe, have been possible for the judges and institutional writers to conclude that there were two distinct types of Rape, one where the victim was an adult woman of sound mind, and the other where she was not; and to create two case-specific definitions, one involving proof that the will had been overcome and the other not involving such proof. Instead, what they did was to adhere to the definition given by Hume, including the ingredient of forcibly overcoming the will, but then to sidestep the problem of 'forcibly overcoming' the vulnerable female's will by introducing, in such cases, the legal fiction (to use the technical legal term) of 'constructive' force, that is to say that the law would conclusively 'estimate' - i.e. presume - that force had been used, even although it had not been used, or at least could not be shown to have been used. The result was that, although one definition came to be employed to cover all cases falling within the nomen juris Rape, the giving or the withholding of consent ceased to be an issue in cases involving vulnerable females; and the crime of having sexual intercourse with such persons was held to be rape, even although one of the most basic elements of Rape - as defined for adult women of sound mind -, that of consent withheld, was not present. It is not the absence of force that makes the difference in the case of vulnerable females: it is the absence of the need to prove that consent was withheld. The other cases considered by the judges and institutional writers, involving adult women penetrated while insensible through intoxication, could then be judged on the basis that, in order to establish rape, the prosecutor had to show that the actions of the man designedly and in fact overcame the woman's will by rendering her insensible. What is interesting is that the judges and writers who discussed these matters in the 18^th and 19^th centuries did not abandon the notion of forcibly overcoming the woman's will; they sidestepped it for the special cases of highly vulnerable females by deciding that the presence or absence of consent - in point of fact - was immaterial.
56. It is also worthy of note that even the dissenting Commissioner in Sweenie, Lord Ivory, actually agreed that force was necessary in the case of an adult woman of sound mind. At page 139, he acknowledged that, "...the definitions of this crime given in our law books all require that the connection with the woman shall be accomplished by force." It is in that context that he said, "In a case like the present of a woman asleep, therefore unconscious and unable to express her dissent, I confess that the soundest definition of the crime of rape, seems to me to be that given by Lord Cockburn, in the case of Fraser , that the crime of rape consists in having intercourse without the woman's consent." When he turned to the case of the adult woman, able to express her will, he said, at page 140, "...and it would indeed appear that the doctrine as to force being necessary, which has been founded on the looser and more popular dicta contained in our law writers, are all applicable to the case of a grown person, and to one able physically to show a renitent will." Even the Lord Justice General (M'Neill), in his dissent, said - but only in relation to cases in which the woman was not able, for whatever reason, to express her will - " In all these cases, the knowledge of the woman's person has been had without her consent, which, as regards the will of the sufferer, is all that the law desiderates when the mind and its faculties are in abeyance." In his Opinion in the present case, the Lord Justice General refers to a 'general rule'. I think that the ideal of a general rule, one that covers all cases, is impossible to achieve. The rule that the crime is Rape if the sexual intercourse is "without her consent" does not cover the cases of children and women of seriously impaired mental capacity who in fact give their consent. Even in the case of the sleeping woman, whose consent is not sought or given, would it be rape if she -had she been asked - would have given her consent, the man in question being her much loved husband? Such a case is no more fanciful than many of those considered by the judges in Fraser and Sweenie. These are merely examples of cases that would not fit any such "general rule".
57. I do not find it necessary to demonstrate by copious quotation what is manifest and is not in dispute, namely that for centuries Scottish judges have invariably directed juries on the basis of the definition of rape as formulated by Hume.. The same definition has been used again and again in the appeal court. I may mention one recent, typical example: In Jamieson v H.M. Advocate 1994 SCCR 181, at p. 186, LJG Hope said, "The crime of rape consists in the carnal knowledge of a woman forcibly and against her will." We have all directed juries in the same words.
58. It is also clear from the opinions of the judges, and from the reports of the legal arguments, in the cases of William Fraser and Sweenie that it was the invariable practice of the Lord Advocate when charging a man with the rape of an adult woman of sound mind to aver that her contrary will was overcome by the use of force. Forty-four different persons have held the office of Lord Advocate since the case of Sweenie; and I am not aware that any has ever, in the case of an adult woman of sound mind, brought an indictment that did not aver that force was used by the man to effect the sexual penetration. The present case is no exception. The Indictment in the present case included assertions that the accused "did assault" the woman, and, in accordance with the correct, established and necessary practice, it went on to specify the modus of the assault, by alleging that the accused did "seize her by the arms", "hold her down on a bed" and "compel her to sit astride you, attempt to compel her to insert your private member into her private parts...". I have never known a case in which some such averments of the use of force did not appear. So if the Lord Advocate is right in submitting that the use of force to overcome the woman's will is not a necessary ingredient of Rape, and never was after William Fraser, then it follows not only that the institutional writers were wrong, as well as the High Court in the case of Sweenie, all the judges who, for over 140 years, have invariably directed juries in accordance with the definition contained in Hume, and also all the appeal courts that, over the same period, have quoted and founded upon the definition of Rape in the course of deciding appeals, but that all his predecessors as Lord Advocate wrongly chose to undertake an unnecessary and superfluous burden of alleging and proving the use of force. Moreover, successive Lord Advocates must be regarded as having failed numerous Rape victims, by declining to prosecute their assailants simply because there was no evidence of the use of force. I see no need to be driven to such a conclusion on the basis of a new analysis of the case of William Fraser, an analysis not advanced in this court in the last 140 years.
59. I emphasise that my view relates to the law as it is, not the law as it should be. Parliament has legislated repeatedly since the mid 19^th century on aspects of the law relating to Rape but has not yet chosen to change the definition; for brevity, I refer to the statutory provisions mentioned in the Lord Justice General's Opinion. The Scottish Parliament has on several occasions amended Scots criminal law without yet dealing with Rape. Parliament may choose to reconsider the matter and in doing so will be able to take account of the disadvantages as well as the advantages of effecting a change such as the Westminster Parliament has enacted for England and Wales.
60. I acknowledge that Judges in Scotland have always been entitled to use fresh and more contemporary language to formulate the law when directing juries. And, over time, that practice may result in some slowly evolving modification of the law itself. As an example, I draw attention to what T.B. Smith, in his A Short Commentary on the Law of Scotland (1962), wrote of the use of force, "The woman's resistance must continue until she is overcome by force or fear, unconsciousness or exhaustion." Although many older texts can be found to support the way that T.B. Smith expressed the evidential burden upon the prosecutor, no judge would now direct a jury in these terms. It would now be left to the jury to decide if it were established that the woman's opposing will had been overcome. That is possibly why, in the latest edition of Sir Gerald Gordon's Criminal Law, what is said is: "In the ordinary case of forcible rape it must be shown that the woman's resistance was overcome by violence and that she did not consent to the intercourse. In practice this usually means that the Crown must show that the accused used violence of a kind which the "reasonable woman" would not have been able to resist....The degree of violence required, however, is a question of fact in each case". Though I seriously doubt if juries would be directed to consider the test of what the response of the "reasonable woman" might be, I think it is clear that juries would be left to decide what, in the particular circumstances proved in evidence, amounted to sufficient resistance to leave the man in no doubt that he was forcing himself upon the woman against her will. Accordingly, my view of the constitutional role of the judge does not deny to the judges the function of expressing and applying the law in the light of circumstances, and indeed in the light of changes in the use of language. But that is entirely different from changing, and indeed reversing, the law after it has been settled for centuries.
61. Before we decide that we and all our predecessors have been getting the definition of rape wrong for over two hundred years, and proceed to formulate a new definition of a very old crime, we should remember a crime does not have to be given the name 'Rape' to merit the severest punishment. Merely changing the names of crimes is not going to make any significant difference to the protection of the public. What is important is that judges should not start altering the established criminal law on the basis there may have been a change in the public attitude to a particular, and well-defined, crime.
62. In deference to the debate in and out of court, I should mention some other matters. I do not think that the case of Stallard v HM Advocate provides significant support for the idea that the court is entitled to change the settled law in order to take account of changes in public attitudes. It is noteworthy that the court in Stallard comprised only three judges. That is the clearest indication that the court did not suppose that it was correcting an error in the content of the law. On the contrary, the Lord Justice General there (Lord Emslie) recognised clearly that, although Hume and other institutional writers had stated that a husband could not be guilty of the crime of Rape committed by himself upon his lawful wife, there had never been any judicial decision affirming that that was correct: there was no binding precedent. The Opinion of the Court therefore includes the passage, "This is the first opportunity which the court in Scotland has had to consider whether Hume's statement of the law was sound when it was written and whether it is sound today...In our opinion, the soundness of Hume's view, and its application in the late twentieth century, depends entirely upon the reason which is said to justify it....There is no doubt that if it was the law of Scotland that a husband is not amenable to a charge of raping his wife, the rule rests solely upon the sentence in Hume which was simply adopted and repeated in different language by the later commentators and writers on the criminal law.". The reasoning was that, although a wife's acceptance of her husband's right to have sexual intercourse with her at any time of his choosing might have been seen to be a "normal incident of marriage" in Hume's time, it was certainly not so by 1989. The Lord Justice General added significantly that , "If...Hume meant that by marriage a wife consented to intercourse against her will and obtained by force, we take leave to doubt whether this was ever contemplated by the common law...." This observation was made in the context of the definition of Rape at page 251, "Rape in our law is the carnal knowledge of a woman's person, forcibly and against her will...." The acceptance, as essential in defining Rape, of the element of forcibly overcoming the will thus went to the heart of the decision in Stallard. Because it had never been any part of the common law of Scotland that a woman, by marrying, consented to the use by her husband of force in order to have intercourse with her, it followed that if he used force to overcome her will, the husband was guilty of raping her, whatever legal fiction might or might not apply in relation to a married woman's consent to intercourse with her husband. The strength of that Opinion lies in the fact that no court had ever affirmed that the view of Hume and others as to an implied and irrevocable consent was correct and formed part of the law. Indeed, as the Lord Justice General pointed out, ...this is the first time the Crown has sought to charge a cohabiting husband with the rape of his spouse." So, in my opinion, Stallard provides no authority for the view that judges are entitled to reform the law.
63. The case of Brennan v H.M. Advocate 1977 JC 38 mentioned in discussion provides an example of the court's restatement of the law in circumstances in which it is recognised that on an earlier, and comparatively recent, occasion a court has misunderstood the law and applied it incorrectly. The error was made by a single judge in Campbell v H.M. Advocate 1921 J.C. 1. In that case, a trial judge, sitting with a jury, instructed the jury in a manner that was not in accordance with the law of Scotland. As the Lord Justice General (Lord Emslie) said in Brennan, the trial judge was "directing the jury without having had the advantage of a full debate or further examination of the relevant Scots authorities on the place of self-induced intoxication in our law...." At that date, 1921, the law was settled and clear: in Brennan the opinion of the court stated (p. 44), "We have no doubt that the law as stated by Hume is, and has always been, the law of Scotland and neither our researches nor those of the learned Solicitor-General and senior counsel for the appellant have revealed that the accuracy of Hume's statement has ever been called in question. On the contrary, it has constantly been accepted and applied....". The Opinion of the Court pointed out that, in the case of Kennedy v H.M. Advocate 1944 J.C. 171, the directions by the trial judge in Campbell had been approved, but only after it had been, "agreed by both prosecution and defence for the purposes of the argument that the law with regard to the effects of drunkenness upon criminal responsibility was accurately set out in Campbell." (cf. p. 50 in Brennan.) Because of this agreement and concession, there was no reference at all to, or examination of, the differences and distinctions between the elements which constitute the crime of murder in the criminal law of Scotland, and those which according to Beard v D.P.P. [1920[ A.C. 479 constituted that crime in England." (p. 50 in Brennan). There was thus a demonstrable error in Kennedy, and the reason for that error (erroneous agreement and concession) was manifest. In these circumstances, it was clearly the right and duty of the court in Brennan to correct the error and to overrule the decision in Kennedy, on the express basis that: "We have no doubt that the law was therein incorrectly stated, and that what was said in Beard's case as to the effect of self-induced intoxication in relation to a charge of murder, does not and never did represent the law of Scotland." (p.51).
64. In the recent case of Galbraith v H.M. Advocate 2001 SLT 953 a court of 5 judges overruled two cases, Connelly v HM Advocate, 1990 JC 349; 1991 SLT 397, and Williamson v HM Advocate, 1994 JC 149; 1994 SLT 1000, on the basis, which was submitted by the defence and conceded by the Crown, and also established to the satisfaction of the Court itself, that the Court in those cases had misapplied the law as it had always been understood and applied in Scotland.
65. There is thus, in my opinion, a long and consistent history of intervention by the High Court, when the opportunity arose, to correct an error that had entered the law in circumstances in which the established law had previously been clear, well understood and repeatedly applied. That is not the situation that we face in this appeal. The definition of Rape as a crime which, in the case of an adult female of sound mind, has as one of its essential components the forcible overcoming of the woman's will by the man, is a definition that goes back to and well beyond the first edition of Hume in 1797. I need not add to the Lord Justice General's citation on this point, except to refer to the Information for the panel in William Fraser where references to the same effect are given to the definition in Regiam Majestatem, and in Burnet, Hume and Alison as well as old English texts. . The law in this regard was not changed by the decision in Fraser, for reasons that I have sought to explain. It was authoritatively stated and applied in Sweenie in 1858 and since then it has been consistently applied in the way defined by Hume and declared in Sweenie. If the time has come to review the law with a view to reforming it, let it be reviewed by the legislature, with such assistance (for example, from the Scottish Law Commission, and from the judiciary among others) as is thought appropriate; and let it be reformed on the basis of the kind of study that we cannot undertake. But let us not exceed our constitutional role by reforming the law simply because we think that it is out of date; and especially so after more than 140 years. There is, in my opinion, all the difference in the world between what was done in cases like Brennan, Stallard, and Galbraith - namely, correcting recent and demonstrable aberrations - and deliberately changing the law as it has been understood and applied for centuries. There is also an important distinction between, on the one hand, adjusting and thus altering lawyers' law in the light of experience in its application in real life cases and, on the other, rewriting the definition of an important and notorious common law crime that has been known and understood in our law for centuries. The precise definition and naming of common law crimes is of great importance, not only because the well understood names, like "rape", "theft", "assault" and "clandestine injury", have frequently been used by the legislature in the sense that the courts have understood and used them, but also because the named, and defined, crimes sometimes attract crime-specific penalties and procedures. If we change the meaning and definition of a known crime, known by its nomen juris, the change is retrospective and could give rise to great difficulties in the interpretation and application of statutes which have employed any such nomen juris in its legally understood sense. As the Lord Justice General said in Brennan, in what is an exactly parallel context, "We ask ourselves first of all the fundamental question: What is insanity, according to the law of Scotland, for the purpose of a special defence of insanity at the time? The question has nothing to do with any popular meaning of the word "insanity", nor indeed is it a question to be resolved upon any medical opinion for the time being. It is, on the contrary, a question which has been resolved by the law itself as matter of legal policy in order to set, in the public interest, acceptable limits upon the circumstances in which any person may be able to relieve himself of criminal responsibility." In my opinion, our approach must be exactly the same. We have no constitutional right or authority to adopt a different approach. .
66. I have not thought it necessary to enter into discussion of questions of evidence, inference, onus and mens rea. They, of course, are highly relevant in real cases that come before the court for decision; and I share Lord Marnoch's concerns and views on these matters. Wholly false and malicious allegations of rape are not unknown in these courts and the law is there to protect the innocent as well as to bring the guilty to justice. The removal of the need to aver and prove force is likely to make it easier to bring charges of rape; there would be advantages in that, but there may be disadvantages in the administration of justice. However, these matters do not appear to me to be decisive in relation to determining whether or not the use or the threat of force is an essential element in the definition of Rape under Scots law.
67. In dealing with these matters I have not referred in detail to the maxim cessante ratione cessat ipsa lex. This maxim expresses the idea that a rule of law that has lost its underlying rationale because of changes in social or other circumstances is no longer a valid rule of law and does not require to be applied (cf. The Laws of Scotland, Stair Memorial Encyclopaedia, Volume 22, paragraphs 353 et seq.) I did not understand the Lord Advocate to submit that that maxim could be applied here; and indeed it was not mentioned at all in argument. That is no doubt because it could have no application in relation to the definition of the crime of Rape, a crime with which the courts have had to deal on a daily basis for centuries against a background of constantly changing circumstances. If the underlying social circumstances have changed in such a way that the law as understood applied for centuries in hundreds of cases has effectively been overtaken by events and ought to be reformed, then that is a matter for Parliament, not for judges. As the author of the Encyclopaedia article puts in, in paragraph 354, (summarising the views of Professor Maher),"....there have been changes in the social background to most decisions in the law reports. The difficulty is that judges are not suitably placed to assess the essentially political question whether the particular changes in the background to a rule justify not following that rule." That encapsulates my view, although the point was not argued in the present Reference.. For these reasons, I have to disagree with the argument presented in paragraph[13], [14] and [15] of Lady Cosgrove's Opinion that the law should be 're-visited' - by the Court - because attitudes to women have changed since 1858. Of course we all recognise that the position of women in social, political, economic and legal terms has altered fundamentally since the 18^th century, by which time the definition of Rape had been settled; and there can be few who do not welcome the changes and marvel that society took so long to make them. But to acknowledge and salute the changes is one thing; for judges to embark on law reform is another. To overrule Sweenie would be to change and to reform the law; and we cannot disguise that fact by using the term 're-visit' or the metaphor of 'shedding dead wood'. The 'wood' of the existing law of Rape may well be gnarled and ugly; but it is certainly not 'dead'.
68. There is one other matter that arises. We were not addressed on it; but, in my view, it is pars judicis to take note of it, because it is a question of competency. Sweenie was , in my opinion, a decision of the Whole Court. In 1858 and until 1887 the Lords Commissioners of Justiciary were the Lord Justice General, the Lord Justice Clerk and five Lords Commissioners of Justiciary. The Lord Justice Clerk (Lord Hope) died before Sweenie was decided and his successor did not take his seat until the following month. The five other Lords Commissioners of Justiciary and the Lord Justice General took part in the decision. (It came before them because the Lord Justice Clerk, just before his death, had certified the case to the High Court). The Lord Justice General acknowledged that that case was being heard before "a full Bench". He cast no vote because, until the Criminal Appeal (Scotland) Act 1926 and the Criminal Procedure (Scotland) Act 1975 the judge presiding in the High Court did not cast a vote unless the other judges were evenly divided. That situation would arise, for example, if the five Commissioners and the Lord Justice Clerk divided 3:3 in a court in which the Lord Justice General presided. This is clear from Jas. Stewart, 1868, 5 Irv. 310, Ross v. Johnston, 1 White 171, and Isabella Cobb or Fairweather, 1836, 1 Swinton 354. It is thus clear that, in Sweenie, all the judges competent to sit took part in the case. In my opinion the Sweenie decision was therefore a decision of the Whole Court. The fact that one of the seven judges competent to sit had died, and the vacancy had not been filled, makes no difference. For there can be a sitting of the Whole Court even although some judges are missing, as happened in Sugden v. H.M. Advocate 1934 JC 103, in which the Lord Justice General did not sit; and also in Kirkwood v. H.M. Advocate 1939 JC 36, a Whole Court case in which the Lord Justice Clerk did not sit. In Sugden v. H.M. Advocate, the case of Macgregor (1773) M. 11, 146 was referred to as a "Whole Court case"; six judges, the five Commissioners and the Lord Justice Clerk, sat in that case. Similarly, Isabella Cobb or Fairweather, in which a majority decision, 3:2, was reached is treated as a decision of the Whole Court; see Jas Stewart (supra). In the latter case, Lord Neaves, at p. 315, speaking of Cobb said,

"But it is not necessary to go into the merits of the question, beyond asking whether the point has been decided by an authoritative Court, and if it has been so decided, whether there are any distinguishing circumstances that prevent its application to the present case. As to the first point, it has been decided in the case of Cobb, in a manner that I must consider as authoritative. The supreme Court must have given this subject full deliberation. The difference of opinion which prevailed must have led to its full discussion and consideration. I cannot think its authority is shaken by its being merely the decision of a majority; because many cases have been decided, and decisions have stood when pronounced by a bare majority. The opinion of the Lord Justice-Clerk should receive no more effect than that of a private individual in Court, because he had no voice or vote unless his brethren were equally divided in opinion. But it never came to that. There were three Judges in favour of repelling the plea, and two in favour of supporting it. It stands, therefore, as the judgment of a majority of the Court of Justiciary, and therefore we must adhere to it."

I cannot improve upon that statement of the position. To this day, it has not been decided that a decision of the Whole Court can be overruled by a bench like the present, which, though it has seven members, is not the Whole Court. It has not even been decided that the Whole Court itself can overrule a long-standing decision of the Whole Court. The matter was very fully discussed in Sugden v. H.M. Advocate 1934 JC 103, but it was not authoritatively resolved. The difficulties that arise are well illustrated in paragraphs 305 et seq in the Encyclopaedia, Vol. 22, under the heading, "Precedent And The High Court of Justiciary". I am not persuaded that this Court of seven judges can competently overrule the Whole Court decision in Sweenie without introducing a new doctrine, not yet recognised in our law, that a long-standing decision of the Whole Court of the High Court of Justiciary can be overruled by a court of seven judges.