Man’s rape convictions quashed following trial judge’s misdirection of jury

Lord Eassie, sitting with Lady Smith and Lady Clark of Calton ruled that Alan Clark, 40, suffered a miscarriage of justice.

At the High Court in Glasgow in 2014, Mr Clark was convicted after trial of the rape of two of his former partners – convictions which turned on the application of the Moorov doctrine and hence on the complainers’ evidence being credible and reliable.

A central issue at trial was the credibility of one complainer, LMcP, whose testimony and police statement – made hours after the alleged rape – were inconsistent. In the police statement she made no allegation of sexual assault. She also gave her doctor an inconsistent account of how she came by an earlier injury.

The appellant’s challenge turned on the directions given by the trial judge, Lord Carloway, on the issue of evidence of a prior statement by a witness – in particular direction given relating to prior statements of LMcP.

Counsel for the appellant stated the trial judge’s instruction to the jury was not an entirely correct statement of law as it suggested it is admissible to bolster a witness’ evidence with evidence of a prior extra judicial consistent statement or statements.

And, while there are exceptions, none of the complainer’s hearsay statements were de recenti or formed part of the res gestae.

After examining further directions of the trial judge, the court came to the view there was “force” in the criticisms that the trial judge’s direction to the jury was inherently contradictory. He introduced matters that were not entirely relevant to the jury’s task “and deflected the jury from a proper consideration of the assessment of the reliability and credibility of the complainer’s testimony in light of her prior inconsistent position.”

His instruction would have led the jury to discount the significance of LMcP’s police statement when determining her credibility and reliability as regards the allegation of sexual offending and rape. His use of the phrase “prose narrative” would further suggest unreliability.

Delivering the opinion of the court Lord Eassie said: “We have come to the view that there is substance in these criticisms advanced by counsel for the appellant and that his submission that, collectively, they constitute a material misdirection of the jury is well founded.”

The court was not convinced by the advocate depute’s submission that the unusual jury directions did not result in a miscarriage of justice. Lord Eassie said that while such a view held an “initial attraction”, on the basis of the directions cited, the judges were “ultimately not persuaded”.

The judge added: “It is to be noted that the trial judge did not put matters to the jury on the basis that there was a clear acceptance by the complainer, LMcP, that in her contemporaneous complaint to the police she had not suggested to the police that she had been raped and so the precise terms of the statement did not really matter. The focus is rather on the report - the statement to the police - which inevitably must draw the jury back to the directions given by the trial judge earlier in his charge about the statement and his directions on the limitations on the value of the statement.”

He went on to cite the elision of the inconsistency between the complainer’s prior account and her testimony in the trial judge’s instruction to the jury. The “fundamental point” was missing.

Lord Eassie said: “We would add that, while of course it is correct that the statement does not make any suggestion of rape, in her cross-examination the complainer did suggest that, as a prelude to an account not pursued, she had mentioned to the police that there had been some sexual activity and that the police had missed things out. When the police officer who noted the statement gave evidence, that particular point arising from the evidence of LMcP was taken up with the officer. She testified to the effect that if that sexual activity had been mentioned by the complainer in the course of the interview it would have been noted in the statement. Accordingly the matter was not as clear cut as the advocate depute sought to submit to us.

“In these circumstances we have come to the conclusion that the jury were misdirected on a matter which was central to the position of the defence at trial and that we are unable to say that no miscarriage of justice may have occurred.”