High Court finds trial judge wrong to redirect jury after initial incompetent verdict in sexual offences trial

About this case:

• Citation:
  [2023] HCJAC 48
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lady Dorrian

Following the redirection, appellant SS was convicted of two charges of lewd, indecent and libidinous practices and another of sexual assault. It was argued that by giving further directions, the trial judge had wrongly influenced some of the jurors into changing their vote on charges in which they initially returned a not proven verdict.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, together with Lord Malcolm and Lord Pentland. D Adams, advocate, appeared for the appellant and Goddard KC, advocate depute, for the Crown.

Rejected the evidence

The indictment that went to the jury consisted of four charges. Charge 1 related to lewd, indecent and libidinous practices towards K, an 8-year-old girl. Charge 2 was indecent assault of a 15-year-old girl, L. Charges 4 and 5 related to similar offences against a male, D, when he was aged between 11 and 13 for charge 4 and between 14 and 21 for charge 5. These charges relied upon the doctrine of mutual corroboration for proof.

Following deliberations, the jury purported to return a majority verdict of not proven for charge 1, a unanimous verdict of not proven for charge 2, but guilty verdicts for the charges involving D. Such a verdict was incompetent, as charges 4 and 5 involved the evidence of the same complainer. In the circumstances, counsel for the appellant submitted that the trial judge should acquit the appellant of the remaining charges.

Having taken some time to consider the matter, the trial judge took a decision, based on obiter remarks in Whyte v HM Advocate (2000), to give the jury further directions, and repeated directions given earlier on the Moorov doctrine. In its new verdict, the jury found the appellant guilty of charge 1 by majority verdict, subject to a substitution of “various occasions” for “occasion”, in addition to charges 4 and 5.

Counsel for the appellant submitted that the jury’s oral verdict indicated that they had rejected the evidence of complainers K and L. There was no apparent concern among the jurors when this verdict was delivered, as opposed to a situation where the jury misunderstood how to state their verdicts in such a way as to accurately state their intention. By taking the course that she did, the trial judge wrongly influenced the jury, leading to a redistribution of votes that caused a miscarriage of justice.

Must be acquittal

Lady Dorrian, delivering the opinion of the court, began by observing: “Our system of jury trial hinges on a strong presumption that jurors follow the directions given to them. The present case is an example of the problems which can arise when it is manifestly clear that they have not done so.”

She explained further: “This case was one which depended for proof entirely on the doctrine of mutual corroboration. The verdicts initially delivered by the jury were not consistent with the correct application of that doctrine, which would necessarily have resulted either in conviction in respect of at least two complainers, or an acquittal across the board. Parties were agreed that in the circumstances which arose it was incumbent on the trial judge to take action: the dispute was as to the nature of that action.”

Asking why the jury had changed their votes, Lady Dorrian said: “We are not persuaded by the Advocate depute’s submission that the obvious explanation for the changed result is that in the first instance the jury had not properly applied the Moorov directions whereas the second time it can be inferred that they did so.”

She continued: “The necessary implication of the verdict initially reported by the jury was that they had considered the complainer on charges 4 and 5 to be credible and reliable, but had not been able to reach such a conclusion regarding the other complainers. A correct application of the doctrine of mutual corroboration to that factual finding must inevitably be an acquittal.”

Lady Dorrian concluded: “The verdict was not, as the Advocate depute submitted, ‘ambiguous’; the legal effect of the verdict which the jury indicated was clear, as in Kerr v HM Advocate (1992), and the verdict should simply have been recorded as an acquittal.”

The court was therefore satisfied that a miscarriage of justice had taken place, and allowed the appeal.