A man convicted of raping a prostitute has had his conviction queshed on the grounds that the trial judge failed to uphold a prior submission of no case to answer.

The case turned on the question of whether consent had been obtained for full intercourse, which could not be corroborated. It was not in dispute that a sexual act had been negotiated and performed.

"We have concluded that there was no evidence capable of giving rise to the inference of mens rea on the part of the appellant, coming from a source other than the complainer," Lord Osborne said in his judgement..

"The evidence given concerning the practices and prices in the market for sexual services in the area in question demonstrated, first, a range of prices for particular services and, second, flexibility in practices adopted by prostitutes. In particular, while more often than not payment would be sought and made in advance of the service being rendered, that was not universal practice. The use of a condom, while generally adopted, was not universal practice. 

" While at a relatively early point in his police interview the appellant indicated the rates which he usually paid, he spoke subsequently of having agreed lower prices for oral sex and full sexual intercourse, which, in our view, would justify the drawing of an inference that the appellant did not, or could not, regard those lower prices as other than a feature of the fluidity of the market indicated in the evidence of the two prostitutes. 

"In the light of this, we are unable to conclude that there is evidence, apart from that of the complainer, which is capable of corroborating her evidence, from which the inference of mens rea may be drawn. In these circumstances, the submission of no case to answer should have been sustained. Since a decision to repel such a submission, where it should have been sustained, amounts to a miscarriage of justice, we conclude that the conviction of the appellant must be quashed. The appeal is allowed."

Scotland has one of the lowest rape conviction rates in the developed world, at only 3.9%, down from 20% in 1977.

 In Latvia the conviction rate is 66%, in Hungary it is 54%, and in Poland it is 45%.