Full bench to review jury directions on video evidence

Three judges of the High Court of Justiciary Appeal Court observed that the law was in a “state of uncertainty” and that now would be an “appropriate time” to reconsider the matter given the “significant increase” in the use of video evidence in court since the last reported case in 2000.

The issue arose in appeal against conviction by Justinas Gubinas and Nerijus Radavicius, who were found guilty of rape following a trial during which the jury was shown evidence of the sexual assaults, which had been recorded on mobile phones.

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Brodie and Lord Malcolm, heard that appellants were charged, along with two other co-accused, with the rape and sexual assault of the complainer RD.

RD had been in the same nightclub as the accused, and had left in a car with them, thinking she was going to a party in Fraserburgh.

In fact she was taken to a farmhouse outside the town where the assaults were alleged to have taken place.

In the course of her evidence, RD accepted that the video footage taken from the phones might appear to depict consensual sexual activity, but that in fact it showed her in a state of intoxication such that she was deprived of the ability to consent.

She said that she was already intoxicated when she left the club, was force-fed more alcohol at the house, and coerced to participate in the acts in question.

The appellants and one of their co-accused were found guilty of rape, including anal rape of the complainer, but they appealed against their convictions.

The grounds of appeal for the first appellant are that: (1) the trial judge erred in repelling a submission of no case to answer, insufficient evidence having been led by the Crown to rebut the appellant’s special defence of consent; (2) the trial judge misdirected the jury with regard to the video evidence, specifically that he failed to direct the jury that the video evidence should be considered through the testimony of witnesses; and (3) there was no evidential basis to convict the appellant of the anal rape of the complainer and that the jury’s verdict in this regard was unreasonable.

For the second appellant the grounds are essentially those advanced as grounds 2 and 3 for the first appellant.

The court having raised the matter, both appellants were subsequently given permission to advance a further ground of appeal, namely that the trial judge had misdirected the jury on the use which could be made of statements to the police made by the appellants.

The complaints regarding sufficiency, the jury’s “unreasonable verdict” and the alleged “misdirection” on statements to police were all refused, but the issue of whether the jury is entitled to form their own views as to what the video evidence depicted was referred to a larger court to consider, after it was argued that it was “difficult to find clear and succinct guidance” in the three main reported cases on the subject - Donnelly v HM Advocate; Gray v HM Advocate; and Steele v HM Advocate.

The appeal judges noted that there were two passages of importance in the opinion of the court in Steele, delivered by the Lord Justice General (Hope).

Delivering the opinion of the court, the Lord Justice Clerk said: “The first of these passages begins with the general statement that in practice questions of principle are likely to be overshadowed by what is practicable in a given case. It then addresses questions of identification, of specific individuals or a locus, rather than the general appearance of what is on the video. It suggests that when a question of such identification is in issue, a jury would not be entitled to reach their own conclusions, and the matter must be mediated through the evidence of witnesses. This was confirmed in Donnelly and Gray.

“The second passage from Steele suggests, initially, at least, that in other cases the jury are at liberty to decide what is shown in a video and make up their own minds what is shown, unless the interpretation of it requires special expertise to explain what was going on. In the present case, there was no expertise required to understand what was going on in the video, and the only issue was whether what it showed was inconsistent with the complainer’s evidence that she had not consented, and on the basis of the second passage from Steele the jury would properly be able themselves to consider the video and determine that issue themselves.

“The matter is, perhaps, made slightly more complicated by virtue of the fact that having made the remarks in the second passage we have quoted, the court in Steele nevertheless went on to say that, in the circumstances of the case, where ‘so much of what was seen on the tape was disputed’, it was not satisfied that it had been a misdirection to tell the jury that they could not make up their own minds but had to be guided by the witnesses.”

Lady Dorrian added: “The most recent of the cases was reported in 2000. Even since that time there has been a significant increase in the use of video evidence in court. We consider that it is undesirable that the law in this area should be in a state of uncertainty. We consider that this would be an opportune time for the matter to be reviewed by a larger court, and on this ground of appeal alone, we will put the case out for a hearing before a bench of five judges.”