Man who repeatedly abducted teenager for sexual abuse loses appeal against conviction and sentence

About this case:

• Citation:
  [2023] HCJAC 49
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Matthews

Scott Faulkner, who received a cumulo sentence of 12 years’ imprisonment in respect of six charges, argued that in respect of charge 1 the jury was misdirected as to corroboration. No appeal was made on the basis of the other five charges of which he was convicted.

The appeal was heard by Lord Carloway, Lord Matthews, and Lord Boyd of Duncansby. Jones KC appeared for the appellant and Cameron, advocate depute, for the Crown.

Evidence of activity

The evidence of the complainer disclosed a course of criminal conduct from 2012 to 2015, which began when he was aged 13 and the appellant was 22. They met at a local first aid agency, and the complainer was often reliant on the appellant to transport him to various outside events. When travelling to and from such events the appellant took the complainer to abandoned buildings and subjected him to sexual assault.

It was the Crown’s case that the appellant coercively groomed the complainer and threatened to release compromising photographs of him if he did not comply with the appellant’s instructions. As a result of the threats, and the appellant’s constant assertion that the complainer was himself “gay”, the complainer felt unable to tell his parents. On one occasion, the appellant took him to the home of another man, J, and penetrated him while in J’s company.

On multiple occasions the complainer was restrained with handcuffs, either with his hands behind his back or handcuffed to a bed. It was agreed that on 28 February 2021 a pair of handcuffs were found in the appellant’s home that had the complainer’s DNA on them as well as the appellant’s. J gave evidence of the activity that took place in his home, and said that the complainer was being encouraged by the appellant. The jury were directed that this evidence could be used to corroborate the evidence of the complainer.

Counsel for the appellant submitted that the jury had been wrongly directed on the use of J’s evidence. The direction was said to be that the jury could use the evidence of J to corroborate sexual activity with the complainer and thereafter to proceed on the basis of mutual corroboration in respect of the whole charge. However, J’s evidence, which made no reference to handcuffs or distress, was of a consensual episode and mutual corroboration could not operate.

No dispute

Lord Matthews, delivering the opinion of the court, noted: “On first principles, it can probably be said that if a particular activity can be said to be part of a course of conduct systematically pursued then the evidence of one witness about an accused engaging in it can be corroborated by another witness speaking about similar conduct on a different occasion. That may be so even though the conduct may not have all the features of criminality on each occasion.”

He continued: “However, that would not amount to the full corroboration of criminal activity which can be found using mutual corroboration, as that term is properly understood, and would only go part of the way. This would appear to be the basis on which the judge intended to charge the jury but using the language of mutual corroboration was misconceived. The question for us ultimately is whether it was a material misdirection providing the jury with an illegitimate route to their verdict.”

Analysing the judge’s directions in more detail, Lord Matthews said: “The judge’s comments explaining how the jury could analyse the evidence were not mere repetition of the Crown’s position but were directions providing a route to verdict and making it clear that the evidence of J only went to sexual activity and did not provide corroboration for lack of consent. Even when that is understood, it was a misdirection to refer earlier to his evidence using the language of mutual corroboration but it was not a material misdirection.”

He concluded: “By the time the jury were considering their verdict there was no dispute before them that sexual activity had occurred on various occasions, that having been confirmed by the appellant himself. The evidence of J was by then superfluous. The dispute was as to consent and when the Charge is read as a whole it does not suggest that his evidence was relevant to that question.”

The appeal against conviction, and with it the appeal against sentence, was therefore refused.