High Court refuses appeal against lewd and indecent practices conviction made on basis of 19-year time gap

About this case:

• Citation:
  [2022] HCJAC 39
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Matthews

Appellant JH argued that in respect of the sixth charge against him, for which he was sentenced to 18 months’ imprisonment, the trial sheriff had failed to direct the jury on special features relevant to the charge.

The appeal was heard by Lord Matthews, Lord Tyre, and Lord Boyd. Gravelle, solicitor advocate, appeared for the appellant and Goddard KC for the Crown.

Mutual corroboration

On 24 February 2022, the appellant was convicted by a jury of three charges of lewd, indecent and libidinous practices. The complainers in two of these charges, charges 4 and 5 on the indictment, were sisters aged between seven and 12 when the offences took place. The complainer in charge 6 was only five or six years old when the offence occurred.

All three complainers described the appellant lying on top of them, pressing his private parts against theirs and moving up and down. All parties were fully clothed during the commission of each offence. It was accepted that there was sufficient evidence to allow the jury to convict the appellant of all three charges on the basis on mutual corroboration.

It was contended by the appellant that, as 19 years passed between the events of charges 4 and 5 and charge 6, the sheriff ought to have directed the jury that there required to be special, compelling, or extraordinary features present before convicting of the latter charge. The lack of a specific direction on special features was a material misdirection by omission.

In support of his argument the appellant relied on the recent case of Duthie v HM Advocate (2021), in which the High Court said that “normally” the jury would only require to be directed that there required to be similarities in time, character, and circumstance in cases where there was a lengthy time gap between the events in the charges. The use of “normally”, it was contended, showed that the appeal court had in contemplation that there might well be cases where further direction was required, with the present appeal being such a case.

Seen in context

Lord Matthews, delivering the opinion of the court, began: “The appeal raises a short point. It is not a good one. The comments of the court in paragraph 28 of Duthie have to be read in the context of paragraph 27 which [states]: ‘The court examined the various dicta in which there had been reference to the necessity, in lengthy time gap-cases, of having special, compelling or extraordinary circumstances before a course of conduct persistently pursued could be inferred’.”

He continued: “The use of the word, ‘normally’ must be seen in its context. All that is being said is that the conventional directions are usually all that is needed. It recognises that there may be occasions where something more might appropriately be said, for example where there are a large number of charges with different categories of offences or the evidence is complex, although whether to go further than the standard directions in any case will be a matter for the discretion of the presiding judge.”

On what the decision in Duthie did not say, Lord Matthews said: “It does not mean, and was not intended to mean, that there will still be some cases with a lengthy time gap where a direction on special features has to be given on account of that factor. It is made explicit in Duthie that judges or sheriffs may elect to give such a direction but the words ‘it is not essential’ could not themselves be clearer.”

He concluded: “The appellant’s submissions rely on a proposition of law which is the polar opposite to that which was decided in Duthie, where the intention was to put to bed once and for all the suggestion that a direction on special features had to be given.”

The court therefore determined the appeal to be without substance, and thus refused it.