Paisley man loses appeal against charges of indecent assault and rape against four former partners

About this case:

• Citation:
  [2024] HCJAC 30
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Carloway

Clark Thomson argued that the trial judge had failed to give appropriate directions on his having an honest and reasonable belief that the complainers had consented to sexual intercourse, and that the conduct of the advocate depute went beyond asking questions based on the evidence. He was unanimously found guilty of six charges and pled guilty to a further charge of simple assault.

The appeal was heard by the Lord Justice General, Lord Carloway, together with Lord Boyd of Duncansby and Lord Beckett. Barr, advocate, appeared for the appellant and Gill KC, advocate depute, for the Crown.

Angry, aggressive, jealous, paranoid

On 12 July 2023 the appellant went on trial at the High Court in Paisley on eleven charges, involving former domestic partners. In due course, the Crown withdrew the libel in four of the charges, which involved threats of violence towards four complainers. Notably, no application was made by either party under section 275 of the Criminal Procedure (Scotland) Act 1995 to lead evidence concerning the complainers’ character or sexual behaviour.

During the trial, the appellant’s position was that the complainers were all active participants in the sexual activity, with three special defences of consent lodged. Each initially referred to the appellant having a reasonable belief that the complainer was consenting, but he later intimated to the preliminary hearing judge that the references to reasonable belief could be taken out. This was then done, under the assumption that it would not be an issue at trial.

After the appellant gave evidence, the AD’s cross-examination began with him asking the complainer if, based on what the four complainers had said, at times he could be an angry person. He later put it to the appellant that he was “an angry, aggressive, jealous, paranoid, abusive man”, to which the appellant responded that he had made mistakes.

In the defence speech to the jury, counsel referred to the appellant’s evidence being that he reasonably believed that complainer JH was consenting. The trial judge intervened, pointing out that the issue had been removed from the special defences, to which counsel replied that the issue had arisen on the evidence of the complainers. The judge rejected this submission and directed the jury that reasonable belief did not require to be considered.

Counsel for the appellant submitted that the trial judge had failed to give correct directions on the issue of reasonable belief. Additionally, the advocate depute had deprived him of a fair trial by asking questions designed to show that he was of bad character. The AD’s cross-examination amounted to character assassination and went beyond putting questions on the evidence. The effect of this conduct was that he had “zoned out” and been unable to give proper answers, creating a risk that the jury would determine the case other than on the evidence.

Relative free for all

Delivering the opinion of the court, Lord Carloway said of the evidence adduced: “The advocate depute engaged in a whole scale inquiry into the relationships in general. There was no objection from the appellant, other than on a couple of occasions. The appellant, in cross and when he came to testify, not only attempted to refute the complainers’ accounts of violence or other forms of abuse towards them, but also engaged in an attack on the complainers.”

He continued: “The result was a relative free for all, boundless examination of the relationships with only occasional, or perhaps coincidental, connection between the evidence being adduced and the libel.”

Resolving the first ground of appeal, Lord Carloway said: “Reasonable belief was removed from the defences. The only special defences which remained were of consent. Belief was out of the equation unless and until the court permitted it to be re-introduced for whatever reason. If the appellant wished to found on it in his speech, he ought to have raised the issue before the Advocate depute’s speech and sought permission to amend the special defences by including reference to it.”

Entitled to ask

Turning to the second ground of appeal, Lord Carloway noted: “The criticisms of the Advocate depute are misplaced. The context in which he addressed the jury was one in which, as already observed, not only had he adduced a considerable amount of evidence about the appellant’s abusive conduct towards his partners over a period of two decades, but also the appellant had put a variety of allegations of jealous and violent conduct by the complainers towards the appellant. In that uncontrolled environment, the Advocate depute was entitled to ask questions about the appellant’s general abusive conduct to his partners.”

He concluded: “The appellant did not object to either the questions asked during cross-examination or to the manner in which they were asked. Where, as here, an accused has legal representation, he cannot complain on appeal about evidence given to which he has not taken timeous objection. In reality, the appellant did not waver in his rejection of the majority of Advocate depute’s suggestion, and it is difficult to see what substance the appellant’s complaints might have.”

The appeal against conviction was therefore refused on both grounds.