Appeal against conviction dismissed as judges criticise counsel over ‘unfounded’ allegations

The Appeal Court of the High Court of Justiciary also expressed “grave concern” that the appeal was presented on such a “fanciful” basis.

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Menzies and Lord Turnbull, heard that the appellant “KW” appeared on an indictment which alleged that while aged between 12 and 15 he sexually abused three other young males and supplied them with cannabis and other stimulants, but the charge in relation to one of the complainers, “JG”, was withdrawn at the end of the Crown case.

Speeches to jury

JG had given evidence of three instances of sexual behaviour between himself and the appellant when they were children, but had great difficulty in remembering detail.

He did however repeatedly state that the first incident (of three) occurred when he was 11 or 12-ish.

The appellant is eight-and-a-half months older than JG so would have been approaching 12 or 13 at the time.

JG was cross-examined in respect of police statements which were alleged to be inconsistent with his evidence in court, and the Crown ultimately withdrew the charge.

In his speech to the jury, the advocate depute made no reference to JG, nor any of the evidence he gave about sexual matters.

And on the issue of “mutual corroboration” the AD said to the jury that the doctrine could be applied as between the evidence of the two remaining complainers and made no suggestion that JG’s evidence could be used in this way.

At the outset of his speech, defence counsel said that he wished to adopt a large part of what the advocate depute had said. Apart from the obvious fact of seeking an acquittal, he did not take issue with anything which the advocate depute had said.

He did point out to the jury that the evidence of JG could not be used for mutual corroboration in respect of the charges remaining before the jury, but the advocate depute had not suggested otherwise and counsel did not assert that he had done

Judge ‘misdirected’ jury

However, the grounds of appeal maintained that the advocate depute in his speech specifically told the jury that the evidence of JR remained available to the jury in considering the application of the Moorov doctrine; that this was contradicted during the defence speech; and that the trial judge in his charge did not correct the point made by the depute.

It was also asserted in the grounds of appeal that the reason that the charge in relation to JG was dropped was that his evidence related to conduct occurring before the appellant reached the age of 12.

Further, it was maintained that a compatibility issue arose, on the basis that it was contrary to Article 6 for the Crown to continue to maintain that the appellant was factually guilty of a charge which had been withdrawn.

In the sift decision the Appeal Court asked the Crown whether it would be willing to disclose the advocate depute’s reasons for withdrawing the charge, and the explanation was that JG did not speak with sufficient clarity about the items in the libel, his evidence being “extremely vague”.

The grounds of appeal made several assertions of fact and in the case and argument it was stated that the advocate depute’s speech contained a “blatant and material… misstatement on an issue which had a critical bearing on the jury’s operation of the Moorov doctrine”.

It was also stated that defence counsel “specifically put this prosecutorial misstatement in issue in his speech to the jury”, but the judges observed that there was “absolutely no foundation” in fact for any of these assertions.

Appellant’s claims ‘unfounded’

Lady Dorrian said: “It is a matter of grave concern to the court that such statements should have been made. In our view, it was abundantly clear that the advocate depute did not suggest to the jury that the evidence of JG was available to corroborate the evidence of the remaining complainers, and it is a complete misrepresentation of his speech as a whole to suggest otherwise. It is equally clear that his evidence remained available to the jury in respect of any other relevant issue arising in the trial. Defence counsel in his speech did not ‘directly contradict anything said by the advocate depute. There was no ‘inconsistency’ for the trial judge to resolve.”

In his case and argument defence counsel also made reference to the trial judge’s report, with the assertion that the judge had “failed entirely to recognise or grapple with the clear contradiction between the Crown and defence speech”, with the words “the trial judge is hardly behaving professionally - seemingly ignoring this thorny issue altogether - as if it might go away”.

It was also said that the trial judge’s observation that the defence made no reference to any improper remarks was “classically, an attempt at deflection or projection of blame onto the defence”.

Refusing the appeal, the judges said that in presenting grounds of appeal for the consideration of the court “counsel have a responsibility not to make assertions of fact which cannot be supported or justified”.

Delivering the opinion of the court, the Lord Justice Clerk said: “This appeal proceeds on allegations of (a) impropriety against the advocate depute; and (b) failure of the trial judge to provide directions necessary to a fair trial. These are serious allegations to make and should not be advanced on such a fanciful basis as in the present case. That is all the more so when the criticism of the judge had been expressed in such vehement, not to say florid, terms as here.”

Lady Dorrian added: “In the present case, the whole factual basis for the appeal is unfounded, and the appeal should never have been stated in these terms in the first place. Counsel for the appellant should have known that the grounds of appeal either substantially misrepresented the factual situation, or were plainly incorrect.”