HMA V AMIR BAKHJAM 2018

Mr Bakhjam was found guilty of rape in January 2017 and he claimed the Crown acted “oppressively” against him in his Trial and therefore appealed his conviction and sentence. The crown withdrew an allegation that he drugged the victim at the end of the Trial, however they addressed the jury on the basis that this element of the crime was still under suspicion. Mr Bakhjam appealed but had his appeal against conviction dismissed.

The Appeal court ultimately ruled that while the advocate deputy’s reference to a “continuing suspicion” was improper, no miscarriage of justice had occurred. The charge that the appellant was found guilty of libelled that he raped the complainer while she was under the influence of alcohol or drugs and unconscious or asleep and incapable of giving or consent, “having intentionally administered a substance to her for the purpose overpowering her for the purpose of engaging in sexual activity.”

The crown at the end of the Trial moved to delete those parts of the libel that concerned the accused giving her these substances but at the Jury speech they admitted “a suspicion that the accused might have given it to her”. The move to delete this was on the basis that there was no evidence that the accused had given her anything.

Advocate Claire Mitchell, argued that the judge had to ensure that the jury were clear that the accused drugging the complainer was not part of the case and she was not satisfied this was the case. The Lord Justice General said in his opinion of the Court: “In so far as that is one interpretation of the advocate deputy’s speech, there can be no doubt that it was an improper statement.

Once the libel had been withdrawn, although, as the advocate depute did say, the evidence of the drug’s presence in the complainer’s system remained relevant to the issue of the level of her functioning, no statement about any continuing suspicion could have been regarded as legitimate.”