''Jamieson v HM Advocate'' is a notable

legal case A legal case is in a general sense a dispute between opposing parties which may be resolved by a court, or by some equivalent legal process. A legal case is typically based on either civil or criminal law. In most legal cases there are one or mor ...

which established a

precedent A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...

Scotland Scotland (, ) is a country that is part of the United Kingdom. Covering the northern third of the island of Great Britain, mainland Scotland has a border with England to the southeast and is otherwise surrounded by the Atlantic Ocean to the ...

which held that a man does not commit

rape Rape is a type of sexual assault usually involving sexual intercourse or other forms of sexual penetration carried out against a person without their consent. The act may be carried out by physical force, coercion, abuse of authority, or ag ...

where he honestly, albeit unreasonably, believes his victim is consenting. This was a

criminal case Criminal law is the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people inclusive of one's self. Most criminal law i ...

decided by the

High Court of Justiciary The High Court of Justiciary is the supreme criminal court in Scotland. The High Court is both a trial court and a court of appeal. As a trial court, the High Court sits on circuit at Parliament House or in the adjacent former Sheriff Cou ...

sitting as the Court of Criminal Appeal. The appeal case was heard before a panel of three

judges A judge is an official who presides over a court. Judge or Judges may also refer to: Roles *Judge, an alternative name for an adjudicator in a competition in theatre, music, sport, etc. *Judge, an alternative name/aviator call sign for a membe ...

with the

Lord Justice-General Lord is an appellation for a person or deity who has authority, control, or power over others, acting as a master, chief, or ruler. The appellation can also denote certain persons who hold a title of the peerage in the United Kingdom, or are ...

( Lord Hope) as president, with Lord Allanbridge and Lord Cowie. The case is reported at 1994 SLT 537. The decision relies upon the point that in

Scots Law Scots law () is the legal system of Scotland. It is a hybrid or mixed legal system containing civil law and common law elements, that traces its roots to a number of different historical sources. Together with English law and Northern Ireland l ...

, a criminal act consists of two elements, the factual act done and the ''

mens rea In criminal law, (; Law Latin for "guilty mind") is the mental element of a person's intention to commit a crime; or knowledge that one's action (or lack of action) would cause a crime to be committed. It is considered a necessary element ...

'' or intention of the perpetrator in carrying out that action. The crime of rape consisted, at that time, of a man having vaginal sexual intercourse with a woman without her consent, with the crime of rape being defined at

common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...

. Therefore, it was held that the ''mens rea'' element is that the man either believes the woman is not consenting or is "reckless or indifferent to the matter of consent". Accordingly, it was held that if the man genuinely believes the woman is consenting, he is not committing the specific crime of rape. This was established law per the cited cases of Sweeney v. X 1982 S.C.C.R. 509 and Meek v. H.M. Advocate 1983 S.L.T. 280. In Jamieson the specific point was whether this belief requires to be based on objectively reasonable grounds, or if it was sufficient that the alleged perpetrator genuinely held this belief even although another person in the same circumstances might not have the same belief. The decision was that honest belief is all that is required, although an absence of reasonable grounds to hold such a belief would affect whether a jury would accept if as a matter of fact he did genuinely believe this. This precedent is unlikely to be considered as still 'good law' as the

Sexual Offences (Scotland) Act 2009 The Sexual Offences (Scotland) Act 2009 (asp 9) is an Act of the Scottish Parliament. It creates a code of sexual offences that is said to be intended to reform that area of the law. The corresponding legislation in England and Wales is the Sexu ...

(which provided the first statutory definition of rape and of consent) states at S.1 (1)(b) that person 'A' commits rape upon 'B'"''(b)without any reasonable belief that B consents''".

References

{{Reflist 1994 in Scotland High Court of Justiciary cases 1994 in British law 1994 in case law Rape in Scotland Women's rights in Scotland