High Court refuses conviction appeal based on sheriff’s non-withdrawal of erroneous jury direction

About this case:

• Citation:
  [2023] HCJAC 44
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lady Dorrian

Counsel for appellant DM argued that the sheriff’s directions to the jury failed to achieve a baseline standard of comprehensibility and it was not possible for him to determine the reasons for his conviction. The case was referred to the court by the Scottish Criminal Cases Review in relation to certain charges relying on the doctrine of mutual corroboration for conviction.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, Lord Pentland and Lord Armstrong. Reid, advocate, appeared for the appellant and the Lord Advocate, Bain KC, for the Crown.

No possible alternative

At trial, it was a matter of agreement that the appellant and the complainer had been in a relationship during the relevant period. There was eyewitness corroboration for her evidence on 5 of the charges by two separate witnesses. The appellant gave evidence that he had at no time assaulted the complainer, and that she and the eye witnesses were lying.

In relation to the other 9 charges, the Crown sought to apply the doctrine of mutual corroboration. At the close of the Crown case, the defence made a submission of no case to answer, arguing that the doctrine of mutual corroboration could not apply because of a lack of similarity in time, character, place and circumstance among the charges. During the debate on the submission, the sheriff made numerous references to the principle identified in Howden v HMA (1994) and its possible application to the case and later directed the jury that it was applicable.

After an overnight adjournment the sheriff recalled the jury and gave the jury additional directions based on Moorov v HMA (1932). He did not withdraw the Howden direction but directed the jury that he was in error in saying the application of that doctrine could result in conviction. It was submitted for the appellant that, by leaving the erroneous direction before the jury, there was a significant impact on their ability to reach a reasoned verdict.

The Lord Advocate submitted that the jury were ultimately provided with clear and concise directions in relation to the doctrine of mutual corroboration. The Howden direction was not likely materially to have influenced the decision to convict. On the evidence, there was no possibility that the jury would have come to an alternative verdict in the absence of that direction, with both the Crown and the defence addressing the jury on the application of the Moorov doctrine.

Purely fanciful

Delivering the opinion of the court, Lady Dorrian said of the application of mutual corroboration: “It was apparent throughout the case that the doctrine of mutual corroboration arose. The sheriff seems to have recognised this at the outset in his preliminary remarks to the jury when he drew attention to this doctrine and advised that he would give directions on it in due course.”

She continued: “It is abundantly clear that the sheriff should not have directed on Howden, should not have repeated that direction, and should have withdrawn it when he gave the appropriate directions on Moorov. There was thus clearly a misdirection. The question for the court is what is the effect of that misdirection, in the context of the case as a whole, including the speeches and all the evidence.”

Addressing whether a miscarriage of justice had resulted, Lady Dorrian said: “We do not think such a conclusion can be reached in the circumstances of this case. The issues were very narrow; and whilst the Howden direction should not have been given, in the corrected directions the sheriff made it clear that Howden did not provide a basis upon which a verdict of guilt could be reached. He made it clear that Howden could apply only in cases where identification was an issue: this was not such a case and the jury could not have been confused on this matter.”

Lady Dorrian concluded: “The jury’s verdict shows that they did accept the application of the Moorov direction. There is a discernible, indeed obvious, and understandable, basis for the conviction. The prospect that had the erroneous direction not been made the jury might have returned a different verdicts is purely fanciful.”

The appeal against conviction was therefore refused.