Royal Blind School sex offender loses appeal against conviction over Crown reference to previous convictions

David Penman claimed that the trial judge’s decision to allow the Crown to introduce evidence that he had previous convictions, which followed a statement made by the appellant that he had “never been in court” previously, resulted in a “miscarriage of justice”.

However, the High Court of Justiciary Appeal Court upheld the trial judge’s decision.

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Menzies and Lord Turnbull, heard that the appellant was sentenced to an Order for Lifelong Restriction with a punishment part of four years after being unanimously convicted in March 2018 of 11 sexual offences carried out between 1987 and 1991, against six girls and two boys aged between 12 and 15 when he was between 12 and 16.

But he appealed against his conviction over a decision of the trial judge to grant a Crown motion under section 266(4) & (5) of the Criminal Procedure (Scotland) Act 1995 allowing evidence that the appellant had previous convictions to be placed before the jury.

The court was told that at the trial each charge was spoken to by the relevant complainer and there was direct corroborative evidence in relation to four of the charges. 

The Crown relied upon the doctrine of mutual corroboration for a sufficiency of the evidence on the other charges of which the appellant was convicted. 

The appellant gave evidence denying his guilt, claiming that the complainers were lying, and a special defence of alibi was relied upon in respect of some of the charges.

During cross-examination the advocate depute put the following proposition to the appellant: “That’s a lot of witnesses to come to court and give evidence that’s not true?” 

In response the appellant stated: “I’ve never been in court so I don’t know in terms of size whether that would be a normal number of witnesses. Nine is quite high in number, yeah.”

Outwith the presence of the jury, the advocate depute submitted that the statement “I’ve never been in court ” could only be taken to be a statement of the appellant’s good character. There had been no need for him to volunteer this information. 

The statement, which he had volunteered, was, in fact, false, since the appellant had previously been convicted of offences of a sexual nature, to which he had pled guilty in 1993, 2000, and 2009. 

The advocate depute wished to correct the false impression of the appellant’s character implied by the statement, and to lead evidence that he had been convicted on these dates. 

Recognising that the fundamental consideration was one of fairness, the trial judge allowed him to do so, repelling an objection on behalf of the appellant on the basis that if the statement allowed to stand unchallenged by the Crown “it would leave the jury with a seriously false impression”.

The advocate depute subsequently put the general terms of the previous convictions to the appellant in cross examination, but the specific details were not disclosed, and the appellant admitted that he had previously been in court and had pleaded guilty to offences in 1993, 2000 and 2009. 

But on appeal it was submitted that the trial judge erred in concluding that the statement constituted evidence of the appellant’s own good character. 

The appellant’s explanation for making the statement, given later in his evidence was that he had never been to trial before, which is what he meant to say.

It was argued that the credibility and reliability of the appellant was very much a material issue at trial and the repeated reference to the appellant’s evidence regarding his convictions could only prejudice the jury’s views on this matter, and has resulted in a miscarriage of justice.

Refusing the appeal, the judges held that the trial judge was “correct” to interpret it as evidence of the appellant’s own good character and that in allowing the Crown motion he had exercised his discretion correctly.

Delivering the opinion of the court, the Lord Justice Clerk said: “The first question which arises is whether evidence given by the appellant constituted ‘evidence of his own good character’…The comment which prompted the motion was not simply a passing or casual remark. 

“In the present case the statement was entirely unqualified, specific in its terms and untrue: I have never been in court before. In our view the trial judge was correct to interpret it as evidence of the appellant’s own good character.”

Lady Dorrian added: “Proceeding on the basis that the evidence was such as to constitute evidence of the appellant’s own good character, the second question to address is whether the trial judge should have exercised his discretion to allow the fact that he had prior convictions to be placed before the court.

“In determining whether the discretion had been properly exercised, it is necessary to take note of the limited extent to which the convictions were referred to. 

“They were referred to for the purpose only of showing that the statement, on oath, ‘I have never been in court’ was a lie. 

“The advocate depute was restrained in the way in which he proceeded, limiting himself to establishing that a lie had been told. 

“The exercise showed that the appellant had lied on this matter, and the use made of the evidence by the advocate depute, and the directions as to the use to which the jury could put it, were restricted entirely to issues of credibility and reliability.

“The details of the convictions were not referred to…We are in no doubt that it would have been highly prejudicial to the appellant in the present case to have the jury informed of the detail of his convictions, and the restraint displayed by the advocate depute was entirely appropriate.”

“In any event,” she concluded, “even had we been critical of the judge’s decision to grant the Crown motion, we would have found it impossible to say that the result had been a miscarriage of justice. We have already referred to the limited use to which the conviction was put, and the clear directions that the issue went only to credibility. 

“There was evidence against the appellant from eight different complainers, and in four of the charges there was direct corroboration. 

“The jury returned a discriminating verdict, acquitting him of charge 15 (one of the charges with direct corroboration) and significantly amending the terms of the libel in another, suggesting that the issue in question had not taken on an undue significance in the jury’s deliberations.“