High Court quashes two rape convictions after finding trial judge’s directions insufficient

Lady Dorrian

About this case:

• Citation:
  [2022] HCJAC 16
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lady Dorrian

The appellants, AW and HB, argued that the trial judge had failed to direct the jury on a number of key issues in the trial, including details on how specific pieces of evidence could and could not be used to corroborate each other.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, sitting with Lord Turnbull and Lord Pentland. K Johnston, solicitor advocate, and L Glancy, advocate, appeared for the appellants and A Edwards QC for the Crown.

Material misdirections

Prior to the incidents described in the charges, the appellants and the complainer had spent time together in a city centre nightclub. The three returned to the second appellant’s flat, at which time the complainer was intoxicated. Both appellants lodged special defences of consent, which were not withdrawn, although no evidence was lodged in support of them.

As evidence of the complainer’s lack of consent, the Crown relied on the extreme distress exhibited by the complainer in a phone call to her boyfriend the following morning and his evidence about the content of voicemails left for him, including one where the complainer sounded in distress while male voices were laughing in the background. It was a matter of agreement that the complainer had lied about the content of text messages sent to her boyfriend at around the same time, and she had no recollection of leaving the voicemails.

In his charge to the jury, the trial judge gave basic directions on corroboration, but made no reference to the issue of distress or its evidential significance, nor to the medical evidence that was also provided. He also did not direct the jury as to the use to which the text messages or voicemail messages could be put and gave no directions on hearsay.

Counsel for both appellants advanced similar arguments maintaining that a miscarriage of justice had resulted due to the judge’s failure to direct the jury on a number of essential matters. It was imperative to provide guidance on the available sources of corroboration and identify evidence which was incapable of providing it. Having not done so, the judge’s directions constituted material misdirections by omission.

Superficial and formulaic

Delivering the opinion of the court, Lady Dorrian began: “The directions which were required were directions on law, not directions on fact. All that was required was to explain to the jury the legitimate use to which these various pieces of evidence could be put, what they did with them thereafter would be a matter entirely for them and a direction on law cannot be said to risk seeming to exert any undue influence on the jury. On the contrary, it was an essential part of giving the jury the tools they needed to do their job.”

She continued: “In DM v HMA (2017) the court clearly considered that directions must ‘be sufficient to alert the jury as to how they should go about their decision making in every case. Effective jury directions must engage with the specifics of the particular trial and the particular issues that arise for decision’. The directions given in this case significantly failed to meet this test. They were superficial and to a large extent formulaic. They failed to explain the legal significance of crucial aspects of the evidence.”

Noting that counsel for the first appellant had presented on the basis that there was a positive case for the special defence of consent, Lady Dorrian observed: “The trial judge should have clarified and corrected the position in his charge. He should have been alerted to the issue by the speech of the advocate depute which twice referred to the fact that there was no evidence of consent, and that there could be no basis for a reasonable belief in consent; and to the tenor of the speech by counsel for the second appellant, but he did nothing to correct the speech for the first appellant. He should have done so.”

She concluded: “It does not assist the Crown that these directions were favourable to the appellants. Whilst the impression given by a misdirection may be tempered in its consequences by directions elsewhere which correct that impression, or provide a bare sufficiency of information to prevent a miscarriage of justice resulting, there can in general be no ‘balancing’ of favourable versus unfavourable misdirections.”

The appeals against conviction were therefore allowed.