A NEW sexual offences law in Scotland has been thrown into disarray after an asylum seeker jailed in a landmark legal case for raping a student had his conviction overturned on appeal.

Rogers Mutebi was given a five-year jail sentence at the High Court in Edinburgh in August last year under a 2009 act which defines consent and allows one party to remove it at any stage.

The court had previously heard the 24-year-old woman was drunk when she left a Glasgow nightclub with Mr Mutebi and went back to his flat. They had sex but she withdrew consent during intercourse.

But appeal judges ruled there was not enough evidence to counter the claim Mr Mutebi had "a reasonable belief" that the woman was a willing partner.

The ruling came after solicitor advocate Ann Ogg said the judge had been wrong to reject an attempt by Mr Mutebi's defence team to get the case thrown out for lack of evidence.

She said no force had been used on the woman and her distress the following morning could not be used to back a claim Mr Mutebi knew, when he was having sex, that she was not willing.

The case was prosecuted under the new Sexual Offences (Scotland) Act 2009. Mr Mutebi was convicted under the provision that if a victim removes consent during sexual intercourse, and the accused continues, it is rape.

Sandy Brindley, national co-ordinator of Rape Crisis Scotland, said: "It is disappointing. Scotland's law was very progressive in the respect of recognising a woman can withdraw consent at any time. There is limited value in having the legislation without practice and it seems it is going to be hard to prove.

"It is a step back to where we were under the legislation, which was that force is not required [to prove rape]. We should not go back to having to rely on notions of force to prove that the man knew she was not consenting."

The legislation widened the definition of rape to include sex when incapable of giving consent through being asleep, unconscious or when someone is too drunk.

Advocate depute Gillian Wade, then head of the Crown Office national sex crimes unit, had said after the original verdict: "I want there to be no doubt in anybody's mind that this act constitutes rape. No means no."

Court of Criminal Appeal judges Lord Eassie, sitting with Lords Brailsford and Philip, will release a full written explanation of their decision at a later date.

The woman told the jury she could not remember how the sex started in her flat but then she "snapped to" with Mr Mutebi on top of her. He ignored her pleas to stop and she was unable to push him off. The trial heard she was eventually able to wriggle away from Mr Mutebi, of Riddrie, Glasgow.

Defending, Ms Ogg said during the appeal hearing that the theft of money and a mobile phone from the flat could not be used to support the allegation that Mr Mutebi was a rapist.

Mr Mutebi also faced being sent back to Uganda. He came to the UK in 2006 on a student visa but stayed on after it expired, claiming to be an asylum seeker and immigration authorities were now able to catch up with him.

Mr Mutebi was also sentenced to a concurrent 12 months in prison for the thefts, which he did not appeal, but that has effectively been served.

A Crown Office spokesman said it noted the decision which was based on the absence of corroboration. He added: "It would therefore be wrong to speculate on any impact this might have on other cases. We would encourage victims to come forward."

He said the new legislation is working well, with many convictions.

It is disappointing. There is limited value in having the legislation without practice and it seems it is going to be hard to prove