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Cite as: [2021] HCJAC 11, 2021 GWD 7-96, [2021] ScotHC HCJAC_11

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APPEAL COURT, HIGH COURT OF JUSTICIARY

[2021] HCJAC 11

HCA/2020/64/XC

Lord Justice General

Lord Menzies

Lord Turnbull

OPINION OF THE COURT

delivered by LORD TURNBULL

APPEAL AGAINST CONVICTION

Appellant

against

HER MAJESTY'S ADVOCATE

Respondent

Appellant: Findlater; Paterson Bell Solicitors (for Duncan McConnell, Solicitors, Dundee)

Respondent: G Jessop (sol adv) AD; the Crown Agent

21 January 2021

[1]

In this appeal the appellant challenges his conviction on the basis that the jury

returned verdicts which no reasonable jury, properly directed, could have returned.

Separately, he contends that the trial judge misdirected the jury in relation to the docket

attached to the indictment which he faced, resulting in a miscarriage of justice.

The indictment

[2]

The appellant and his co-accused SM faced an indictment which alleged a number of

charges of both a physical and sexual nature perpetrated against two young and vulnerable

teenage girls. The events were said to have taken place at addresses in Cupar and Dundee

between December 2002 and March 2006. The appellant was in a relationship throughout

that period with the complainer JB and his co-accused was in a relationship with the

complainer DS throughout much of that time.

[3]

The appellant and SM were charged, whilst acting together, with assaulting each of

the complainers on different occasions. Each was also separately charged with assaulting

the respective complainer with whom he was in a relationship. They faced separate charges

of indecently assaulting each of the two complainers, whilst acting together, and they each

faced a charge of individually raping the complainer DS. In addition, both faced charges of

raping each of the two complainers, on various occasions, by compelling them to engage in

sexual intercourse with both males at the same time.

[4]

During the course of the trial various charges were withdrawn against the co-

accused and he was acquitted no case to answer by the trial judge of the remaining charges

which he faced. Certain charges were also withdrawn against the appellant, with the result

that the jury were left to consider four charges against him, two of which resulted in

convictions. The charges of which the appellant was convicted were as follows:

"(004) on various occasions between 6 February 2003 and 31 March 2006, both dates

inclusive, at (addresses in Cupar and Dundee) you SB and SM did indecently assault

and rape JB, ... and did compel her to engage in sexual intercourse with both of you

at the same time and you SM did penetrate her anus with your penis and you SB did

penetrate her vagina with your penis and you SB and SM did thus indecently assault

and rape her;

(007) on various occasions between 14 January 2003 and 31 December 2004, both

dates inclusive, at (addresses in Cupar) you SB and SM did indecently assault and

rape DS, ... and did compel her to engage in sexual intercourse with both of you at

the same time and you SB did penetrate her anus with your penis and you SM did

penetrate her vagina with your penis and you SB and SM did thus indecently assault

and rape her all to her injury;"

In due course, the appellant was sentenced to a cumulo period of six years imprisonment in

respect of the two charges.

[5]

Attached to the indictment which the appellant and his co-accused faced was a

docket which gave notice that the Crown intended to lead evidence that the appellant had

sexual intercourse with JB on various occasions at an address in Cupar when she was aged

15 years old; that on one occasion at the same address in Cupar the co-accused had sexual

intercourse with DS when she was 15 years old; that on various occasions between 2006 and

2017 at addresses in County Durham and Bournemouth the appellant demanded that JB

have sexual intercourse with him and assaulted her in a variety of different ways; that on

various occasions between the same dates and at the same locations the appellant forced JB

to have sexual intercourse with SM without her consent and made video recordings of the

activity on some of those occasions; that on various occasions between the same dates and at

the same addresses the co-accused SM had sexual intercourse with JB without her consent;

and that on one occasion in October 2016 at an address in Bournemouth the appellant

demanded that JB have sexual intercourse with him and attempted to have intercourse with

her without her consent.

The evidence

[6]

The Crown case against the appellant depended upon the evidence given by the two

complainers. DS was led as the first witness.

The complainer DS

[7]

In summary, the evidence given by this witness was that she had been friends with

JB since school. She had learning difficulties at school and attended a special needs section of

a college. She began a relationship with the co-accused SM when she was 15 years old and

he was around three or four years older. He was originally from England and had moved to

live in a bedsit flat in Cupar. His friend the appellant, whom he knew from England, moved

to stay with him in that flat. On moving to Cupar the appellant commenced a relationship

with her friend JB.

[8]

DS regularly visited the flat in Cupar and had consensual sexual intercourse with SM

there. She explained that SM told her that he and the appellant were in a gang and that they

undertook jobs which involved watching and harming people. The appellant was present

when these things were said and agreed with what SM had said. The things which SM said

made her confused and scared. At the time she thought what she had been told was true

and there were occasions on which she was told that there were certain things which she

would have to do on behalf of the gang.

[9]

DS explained that she regularly visited the flat with JB and that they would drink

alcohol whilst there. She gave evidence of various things which happened. She described

an occasion when all four played a game called "Spin the Bottle" which resulted in the girls

being told that they would require to give oral sex to one or other of the males. During the

course of describing this conduct she explained that the appellant became aggressive

towards JB. He shouted at her and dragged her out of the room by her hair. After they

returned DS was required to give oral sex to the appellant and JB was required to do the

same to SM. She explained that she did so because she was scared and that she could tell JB

was unhappy about having to do so as well.

[10]

DS went on to explain that, beginning when she was 16 years old, she was required

on a number of occasions to have "threesomes" in which she had to have sexual intercourse

with each of the two accused at the same time. This conduct began in the bedsit flat at

Cupar and continued after the appellant and the co-accused moved into a larger flat at a

different address in Cupar. Her evidence was that she did not wish to engage in these

"threesomes" but agreed to do so because she was scared of what would happen if she did

not. SM had told her that there would be consequences if she failed to participate. Her

family would be hurt and they would be shot.

[11]

On the first occasion of this conduct the appellant penetrated her anus and she told

him to stop because it was painful but he refused to do so. On subsequent occasions she

told the appellant and the co-accused that she did not want to participate in this group

activity but SM told her she required to do so. On one occasion he explained that it was in

order to allow other people to watch through cameras which had been fitted into the flat.

On one occasion, after she refused to participate, the co-accused pinned her to the floor and

behaved violently towards her during the course of which he turned to the appellant and

said "show her the gun". In response SB had stood up and placed his hands under his

jumper giving the impression that he had something there. DS explained that all of this

conduct frightened her and she participated on the various occasions that she did because

she was scared of them and she was frightened of the threats that her family would get hurt.

[12]

She also gave evidence about other conduct, including being required to have sexual

intercourse with the appellant on his own and being required to engage in oral sex with him

on the instruction of SM. She complied with these demands because of her fear of what

would happen to her and her family if she did not. She explained that around the middle of

2005 she told her mother who informed the police and statements were taken. She stopped

seeing both SM and the appellant at that stage. Her relationship with the co-accused had

lasted for around two years. Subsequently, in around 2017, she was revisited by the police

who asked her whether she knew about conduct between the appellant, the co-accused and

JB.

[13]

On behalf of the appellant, the lines of cross-examination explored with DS were to

the effect that she had fabricated parts of her testimony about sexual activity, that whilst the

two males did have sexual intercourse with her at the same time that occurred with her

consent, that she had made up the account of gang membership and that she was jealous of

SM's involvement with a subsequent girlfriend. In addition, she was examined about

accounts which she had given to police officers which were apparently inconsistent with her

evidence and it was suggested to her that her explanations for participating in sexual

conduct against her will were inherently improbable.

The complainer JB

[14]

Like DS, this witness described herself as having a mild learning disability and she

received learning support throughout her schooling. She met the appellant when she was

14 years old and he was 18. She had known SM for a number of years before that. She

commenced a relationship with the appellant which continued from when she was aged 14

until she was around 29 years old.

[15]

JB explained that she and her best friend DS would visit the bedsit flat in Cupar at

the weekends and would regularly stay over. Alcohol was consumed and she described

being drunk when various sexual games were played. She described two occasions when

the appellant grabbed her by the hair and pulled her. On the first occasion she said that she

ran out of the building and hid before telephoning her sister to arrange to be collected. On

another occasion she described the appellant pulling her out of the flat by her hair and being

pulled along a path beside a river at the back of the building.

[16]

She described beginning her sexual relationship with the appellant when she was 14.

She explained that the appellant told her he was a gangster and that he used to use guns and

sold drugs. He told her that he and SM knew Paul Ferris, whom she understood to be a

Glasgow gangster. The appellant talked about this sort of thing all the time, as did SM. JB

described feeling scared because she believed them at that time. She explained that the two

men asked her and DS to undertake tasks for them which were associated with their gang,

such as taking down car registration numbers and delivering parcels to an area near to the

train station at Cupar. At the time she believed what the appellant was telling her about he

and SM being gangsters.

[17]

From when she was aged 15 years old the appellant persuaded her to have sexual

intercourse with both him and SM at the same time. She explained that this happened every

weekend and that she was pressured into doing it although she did not want to. The

appellant told her it would keep him happy if she engaged in sexual conduct with SM. She

told the appellant she did not like doing this but he kept asking and asking and she agreed

just to keep him happy. She thought that he would hit her if she did not agree to this. In

addition, she said that the appellant made threats against her father quite a lot. He told her

that he would take her father to a factory unit and cut his fingers off if she did not agree to

participate in the sexual activity. He made such threats almost every time they had an

argument about not wanting to engage in "threesomes". She eventually agreed.

[18]

JB became pregnant in 2004 while she was living with her mother in Dundee. After

her son was born, in March 2005, she continued to visit the appellant and SM but they had

moved to a different address in Cupar by this time. SM was no longer in a relationship with

DS. On occasions in this flat the witness had sexual intercourse with SM at the

encouragement of the appellant. The appellant instructed her to record the intercourse on

video camera on one occasion.

[19]

JB also gave evidence about moving to England to live with the appellant at an

address in County Durham. SM was living in the same village. She continued to engage in

sexual activity with both the appellant and SM whilst living there. She did so because the

appellant was constantly pressurising her and she agreed to participate to keep him happy

and so that he would not hit her. The appellant used to record this on a camera. After she

and the appellant moved to Bournemouth SM moved there to be with them. By this time

the appellant was behaving more violently towards her. She eventually left the appellant in

around May 2017 and returned to Dundee with her children.

[20]

The witness acknowledged that she had been spoken to by police officers in about

September 2005 in response to the complaints which had been made by DS. She told the

police that she had engaged in sexual activity with both SB and SM but that it had been

consensual. She did so because she was scared of the appellant.

[21]

JB was cross-examined by counsel for the appellant, at length and effectively, about

the differences between her evidence and the various accounts which she had given to

police officers in the course of a number of statements which had been taken from her. The

circumstances which led to her being scared of the appellant were examined. It was put to

her that she was lying about the appellant pulling her hair. It was suggested to her that the

reasons which she gave for participating in sexual activity against her will were inherently

improbable. It was suggested that she engaged in sexual activity with the two men

consensually. She agreed that she had not told police officers the appellant had threatened

to cut her father's finger off. She said she had only remembered that recently. She was

examined about her attitude towards the allegations which DS had made to the police in

2005 and she was examined about her account of violence by the appellant whilst they lived

in England. She was examined about failing to inform police officers about the appellant's

sexual and physical conduct towards her in the course of giving a statement when the

appellant had raised a court action seeking access to their children. She was examined about

why she did not tell people what the appellant had done to her after she moved back to

Dundee

[22]

JB was also she was also cross-examined about her testimony to the effect that she

was required by the appellant to have intercourse with SM in Bournemouth. In support of

the contention that this was consensual, a portion of an audio recording during which she

was having intercourse with SM was played in order to suggest to the complainer that she

could be heard encouraging him.

Defence evidence

[23]

The appellant gave evidence on his own behalf and called the former co-accused SM

as a defence witness. The appellant's evidence was that he and SM did have sexual

intercourse with JB at the same time on various occasions. The same behaviour was engaged

in with DS. Each girl had consented to this conduct.

The submissions on appeal

Appellant

The first ground of appeal

[24]

In the note of appeal, and in the arguments presented in support of it, it was

accepted that each complainer had given evidence which, taken at its highest, constituted

evidence of having been raped by the appellant whilst acting along with the co-accused. It

was accepted that the evidence given in support of each of charges 4 and 7 was capable of

being corroborated through the application of the doctrine of mutual corroboration. Put

short, the argument was that no reasonable jury could have found the evidence given by JB

to be credible or reliable.

[25]

In support of this argument the note of appeal and the written submissions drew

attention to various aspects of the evidence given by JB. It was suggested that in cross-

examination she had agreed to the proposition that she felt threatened or pressured into

having unwanted sexual intercourse with the appellant and SM on the basis of nothing more

than two occasions of her hair being pulled. Attention was drawn to the inconsistencies

between what she had told police officers in 2005 and 2017 and her testimony in court.

Attention was drawn to the passage of cross-examination in which a selection of text

messages were examined which had been exchanged between the complainer and the

appellant shortly after their relationship had ended. It was pointed out that although the

complainer was complaining about aspects of the appellant's behaviour in these text

messages, she did not accuse him of physical or sexual violence. The audio recording of the

complainer apparently encouraging SM to have intercourse with her was referred to.

Individual passages of the complainer's testimony were drawn attention to in support of the

contention that her account contradicted the suggestion of a lengthy period of non-

consensual sexual activity. Reliance was placed on a passage in re-examination where the

complainer appeared to explain that she only became uncomfortable about sex with the

appellant shortly before leaving him in England to return to Dundee, a point around

13 years after the last date on the libel.

[26]

In oral submissions it was argued that the central issue in the case was consent.

Examination of the transcript of the complainer's evidence demonstrated that she was able

on occasions to indicate a lack of consent and that this was acted upon by the appellant. It

was argued that the elements of violent conduct which the complainer referred to were

mostly episodes which occurred after she and the appellant had moved to England.

Logically, such events could not provide an explanation for participating out of fear in the

sexual conduct which predated this. Her evidence, looked at broadly and in the round, was

to the effect that she had gone along with the appellant's suggestion that sexual activity

involving all three of them would be fun and that she did not participate out of a sense of

fear or violence, but rather to keep the appellant happy. The complainer's evidence on the

central issue of consent was so confused that there was no sense in which it could have been

found credible and reliable. Her evidence was contradictory to the extent that it did not

make sense, either within itself or when taken in the context of the trial as a whole.

Although the test to be met by an appellant arguing a ground of appeal of this sort was a

high one, in the circumstances of this case that test was met.

The second ground of appeal

[27]

The docket attached to the indictment gave notice that the Crown intended to lead

evidence of the sort described at paragraph [5] above. It was observed that the bulk of the

docket referred to sexual matters occurring in a period of just over a decade or so between

2006 and 2017 when the appellant, JB and SM were all living at addresses in England.

Evidence was given in relation to the docket by JB. This comprised a substantial body of

evidence in the case which was of a prejudicial nature to the appellant. The trial judge had

said nothing at all about the docket in his charge.

[28]

The appellant submitted that the judge ought to have given the jury directions

explaining the use to which they could legitimately put the evidence led under reference to

the docket. In addition, he ought to have instructed them that the material specified in the

docket (which was enumerated into separate paragraphs) did not comprise separate

charges. Although the trial judge had made some reference to the docket in his introductory

remarks, reliance was placed on the decision of the court in the case of Lyttle v HM Advocate

2003 SCCR 713. In particular, counsel for the appellant relied on what was said by the Lord

Justice Clerk (Gill) in delivering the opinion of the court at paragraph 18. He had stated that

introductory remarks made by a judge to the jury are not part of the formal procedure of the

trial and, that where the trial judge has omitted a material direction in the course of the

charge, neither the trial judge nor the Crown can pray in aid anything that the judge may

have said in the course of those remarks.

[29]

In the circumstances of the present case the trial judge's failure to give directions in

respect of the docket constituted a material misdirection resulting in a miscarriage of justice.

Crown

The first ground of appeal

[30]

The advocate depute reminded the court that the test to be applied in an appeal

based upon this ground is an objective and a high one. This had recently been confirmed in

the Full Bench case of Al Megrahi v HM Advocate [2021] HCJAC 3 at paragraphs [53] to [56].

It was accepted that the Crown had led sufficient evidence to corroborate the evidence given

by the complainer JB and the appellant himself had confirmed that the relevant conduct

which she described did take place. The sole issue was whether the jury were entitled to

conclude beyond a reasonable doubt that the conduct occurred without the complainer's

consent.

[31]

The evidence in relation to consent had to be seen in the round, it was not

appropriate to simply view it from the perspective of the passages selected by the appellant.

There was adequate material within the complainer's evidence to permit the jury to

conclude that that she had been pressurised by the appellant and that she had participated

in the sexual behaviour described as a consequence of pressure and fear. She had given

evidence that she was subject to physical violence if she did not agree to participate. The

jury were entitled to accept her evidence that she had believed the appellant and his co-

accused when they told her that they were gang members, had guns and were involved in

the supplying of drugs.

[32]

In assessing the complainer's evidence the jury were entitled to take account of her

vulnerabilities, including her age and her limited intellectual capacity. In assessing whether

to accept JB as a credible and reliable witness the jury were also entitled to take account of

the evidence given by DS see the case of PGT v HM [2020] HCJAC 14. It was important to

remember that no criticism of the evidence given by DS was advanced in the appeal.

[33]

The advocate depute also submitted that it was not uncommon for victims to delay

or stagger reporting, or to be inconsistent in doing so. The presence of these features within

the evidence of the complainer JB did not mean that the jury could not reasonably have

accepted her testimony. There was available what had been referred to in the case of

McDonald v HM Advocate 2010 SCCR 619, as a baseline of quality within the testimony given.

The second ground of appeal

[34]

The advocate depute drew attention to the fact that whilst the trial judge did not

mention the docket in his charge, he had made it plain in his introductory remarks that the

docket only had an evidential function and that the jury would not require to return a

verdict in relation to it. He had also made it clear that separate verdicts were to be returned

on the four remaining charges. Clean copy indictments comprising only the remaining

charges were given to the jury before speeches. The Crown speech had referred only to the

evidence on the remaining charges. The jury could not have been confused by the docket or

left in any doubt as to its purpose.

[35]

The advocate depute submitted that solemn procedure had moved on significantly

since the case of Lyttle and that the decision had no application to current High Court

practice. There had been no misdirection by omission and no miscarriage of justice.

Discussion

The first ground of appeal

[36]

Section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995 provides an

appellant with the opportunity to bring under review of the High Court any alleged

miscarriage of justice based on the jury having returned a verdict which no reasonable jury,

properly directed, could have returned. The approach which the appellate court should take

in assessing an appeal of this sort was recently revisited in the Full Bench decision of the

court in the case of Al Megrahi v HM Advocate. In delivering the opinion of the court at

paragraph [53] the Lord Justice General (Carloway) explained:

"[53] There is no dispute about the test which applies to this ground of appeal. It

was recently outlined in Smith v HM Advocate 2017 JC 54 (LJG (Carloway) delivering

the opinion of the court) as follows:

`[37]

The test in relation to the unreasonableness of a jury's verdict, as

described in section 106(3)(b) of the 1995 Act, is an objective and a high one

(Geddes v HM Advocate 2015 JC 229, LJC (Carloway), paras 4 and 88). It is

only in the most exceptional circumstances that an appeal on this ground will

succeed (Harris v HM Advocate 2012 SCCR 234, Lord Bonomy, para 67). A

verdict will be quashed only if the court is satisfied that no reasonable jury

could have been satisfied beyond reasonable doubt that the appellant was

guilty (King v HM Advocate 1999 JC 226, LJG (Rodger) p 230). The

determination of fact remains the province of the jury, even if there must be a

baseline of quality (McDonald v HM Advocate, 2010 SCCR 619, Lord Carloway,

para 27).'"

The transcript of the evidence given by the complainer JB reveals an account of domination

and sexual degradation of her by the appellant over a period of years. On the appellant's

behalf she was cross examined in detail, and at length, although in a professional and

considerate manner. That cross-examination elicited inconsistencies in her evidence and

discrepancies between the account which she gave in court and the accounts which she had

given to police officers carrying out investigations into the appellant's conduct. The

appellant's counsel highlighted what was suggested to be the inherently unlikely and

implausible explanations for continuing to participate in sexual conduct against her will

over a period of years. In all of these aspects, and more, an independent observer might well

have concluded that the cross examination was highly successful.

[37]

However, the combined experience of the court permits it to agree with the

submission of the advocate depute to the effect that it is not uncommon for victims of sexual

abuse to delay or stagger reporting, or to be inconsistent in doing so. Neither can it be said

that there is, or must be, a particular response to non-consensual sexual behaviour, such as

can permit a truthful account to be distinguished from an untruthful one. It is the function

of the jury to assess the credibility and the reliability of the particular account given to them

in light of the whole and unique circumstances of each particular case.

[38]

When assessing JB's evidence the jury were entitled to take account of the age

difference between her and the appellant and to take account of her learning disability.

They were entitled to take account of the evidence of the appellant's violent conduct

towards her, both as described by JB and by DS. At pages 41 to 44 of the transcript of JB's

evidence on 11 December 2019 there is a telling passage. In it she testified that she thought

that the appellant would hit her if she declined to acquiesce in his repeated requests to have

intercourse with both him and SM. She explained that if she failed to comply she thought

that the appellant would hurt her by grabbing her by the hair or that he would hurt her

father. At pages 42/43 she said that the appellant threatened to take her father to a factory

unit and cut his fingers off and that he made such threats all of the time in the context of the

arguments which they had about him wishing her to participate in threesomes. The passage

concluded with three important questions and answers:

Q. -

And, so, when he made these threats and you felt pressured, what did you

say about the threesomes?

A. -

I said yeah to them, just so he'd stop asking.

Q. -

How would (SB) know that you weren't wanting to have a threesome?

A. -

Because I told him before.

Q. -

How often did you tell him?

A. -

Every time he asked.

This passage of evidence was given under express reference to what took place at Cupar and

was not related to events which took place after the parties moved to England. A further

aspect of the complainer's account which was of relevance to her state of mind, and the

dominance exerted over her by the appellant, was her evidence that in the early stages of her

relationship with him he told her that he was a gangster, that he used to use guns, sell drugs

and knew Paul Ferris.

[39]

Having listened to the evidence given by JB in the round, including all that she had

said in cross-examination, the jury would have been entitled to conclude that she was to be

accepted in the essentials of what she had said about why she participated in sexual activity

with both SB and SM. They were entitled to conclude that she was credible and reliable in

testifying that she had not consented to doing so and had participated out of fear. There

was a necessary baseline of quality.

[40]

However, there is a further aspect of the jury's assessment of JB's evidence which did

not feature in the submissions for the appellant. The jury would not have considered the

evidence of JB in isolation, they would have taken it along with, and in the context of, the

other testimony at the trial. There was no attack made in the appeal on the evidence of DS.

It was not suggested that there was any reason why the jury ought not to have, if they saw

fit, accepted her evidence as compelling. The jury plainly did accept her as truthful and

reliable in respect of charge 7, but the potential value of her evidence did not end there. The

jury would have been entitled to take account of the evidence which DS gave as to the

circumstances in which she came to participate in the activity which she described. They

would have been entitled to take account of her evidence of being scared of what would

happen if she did not and of what caused her to be scared. They would have been entitled

to take account of her evidence of the things said to her about the appellant and the co-

accused being gangsters and about references being made to guns.

[41]

All of this testimony was available to the jury in deciding whether to treat JB as a

credible and reliable witness as well. In the case of T(P) v HM advocate [2020] HCJAC 14 the

court referred to what had been said by Lord Bridge of Harwich in delivering the judgment

of the Privy Council in the case of Attorney-General of Hong Kong v Wong Muk Ping [1987] AC

501 at page 510:

"It is a commonplace of judicial experience that a witness who makes a poor

impression in the witness box may be found at the end of the day, when his evidence

is considered in the light of all the other evidence bearing upon the issue, to have

been both truthful and accurate. Conversely, the evidence of a witness who at first

seemed impressive and reliable may at the end of the day have to be rejected. Such

experience suggests that it is dangerous to assess the credibility of the evidence given

by any witness in isolation from other evidence in the case which is capable of

throwing light on its reliability; it would ... be surprising if the law requiring juries

to be warned of the danger of convicting on the uncorroborated evidence of a

witness ... should have developed to the point where ... the jury must be directed to

make such an assessment of credibility in isolation."

Having drawn attention to this dictum, in giving the opinion of the court in T(P), at

paragraph 21, the Lord Justice General (Carloway) said:

"... once evidence is deemed admissible, it is available for the jury's consideration at

large in the manner which the jury deem appropriate. It is simply not practicable,

nor does it accord with common sense, to direct a jury that, although they, as well as

the trial judge, may, in the modern era, require to determine whether a complainer's

testimony is formally corroborated by that of another, they cannot take the existence

of that other's testimony in determining whether the first complainer's account is

credible and/or reliable. It defies reason to suggest that the existence of a second

complainer, with an account of the same nature as is required to establish mutual

corroboration, can play no part at all in assessing the credibility of the first

complainer and vice versa."

It can therefore be seen that there were aspects of JB's evidence which the jury could have

accepted and which would have demonstrated the appellant's guilt on the charge to which

she spoke. Those aspects of her evidence were sufficiently coherent to allow the jury to

accept that she did not consent to the conduct participated in, despite all of the points made

in cross-examination. Separately, there was other evidence, in the form of the testimony

given by DS, which was of behaviour directed against her of a similar nature to that

described by JB, and which had the same effect upon her as that described by JB. Since the

jury accepted DS as credible and reliable they were entitled to weigh their conclusions about

her evidence in their assessment of what to make of the account given by JB.

[42]

In all of these circumstances the court rejects the contention that that no reasonable

jury could have been satisfied beyond reasonable doubt that the appellant was guilty on the

evidence as given by JB. The criticisms of her testimony are not sufficient to demonstrate

that this case falls into the category of the most exceptional circumstances necessary for an

appeal on this basis to succeed. The first ground of appeal must therefore be refused.

The second ground of appeal

[43]

In his report to this court, the trial judge explains that in his introductory remarks, at

the commencement of the trial, he gave information to the jury about the docket. He

explained to them that the individual elements of the docket were not charges. He

explained the charges which the appellant and his co-accused faced were those which he

drew attention to in explaining the content of the indictment. He told the jury that they

would not be required to return verdicts on any aspect of the docket but only on the charges.

He informed them that the purpose of the docket was to give notice that, in the course of the

trial, the Crown might lead evidence bearing on the matters set out in the docket.

[44]

By the stage of the judge's charge the jury had been provided with a clean copy of

the indictment containing only the four remaining charges. The docket was not attached to

it and the trial judge explained in the course of his charge that they were only concerned

with these four remaining charges.

[45]

Counsel for the appellant recognised that what the trial judge had said about the

docket was accurate and could not be faulted. His submission, based squarely on the

decision in the case of Lyttle v HM Advocate, was that the only relevant legal directions

which the jury received were those given in the course of the charge. It was therefore not

legitimate to consider the weight of an argument based on misdirection by omission by

taking account of what had been said in the introductory remarks.

[46]

That submission raises the question of whether the case of Lyttle continues to

represent an accurate statement of the legal position, or whether solemn trial procedure has

changed and developed to the extent that the decision no longer has application in the

context of current practice.

[47]

The trial in the case of Lyttle took place in the High Court in 2002. Significant

changes have certainly been introduced to solemn procedure, both in the High Court and in

Sheriff Court, since then. Two matters of particular importance fall to be taken account of.

[48]

The first is the amendment brought about by section 63 of the Criminal Justice and

Licensing (Scotland) Act 2010 to introduce section 288BA of the 1995 Act. The effect of this

amendment was to introduce a statutory framework for the use by the prosecution of a

docket to inform the defence of the prosecution's intention to lead evidence in sexual offence

cases of an offence not charged. The introduction of this provision led to many cases in the

High Court being tried on the basis of indictments to which such dockets were attached. As

a consequence, the Lord Justice General issued Practice Note No. 2 of 2016 in order to give

guidance to judges on the practice to be followed in cases where such dockets featured. In

that Practice Note the guidance given included that:

"In all such cases, when the indictment is read to the jury as required by s 88(5) of the

1995 Act, the docket should also be read to the jury and a copy of the docket should

be provided to the jury.

Judges may wish to include an explanation of the purpose of the docket in their

introductory remarks to the jury."

As in the present case, judges almost invariably provided such an explanation to the jury at

the commencement of the trial.

[49]

The second matter concerns the recent introduction of some quite radical changes to

the way in which instruction is delivered to juries by judges. In discussion between the Lord

Justice General, the Lord Justice Clerk and the Jury Manual Committee of the Judicial

Institute, it was agreed that from July 2020 jurors should be provided with certain materials

in writing at the start of the trial. These are, a note setting out the duties and responsibilities

of a juror and a document setting out the general directions which apply in every case, as

well as, if appropriate, setting out specific further directions which the judge considers are

appropriate in the circumstances of the particular case.

[50]

Accordingly, at the commencement of trials jurors are now given general oral

guidance on the functions of the personnel and information about the timetabling of the

case, all of which is intended to reinforce the written note setting out juror responsibilities

which is issued to each juror on their arrival at the jury centre or court. This is then followed

by the issuing of written instructions, which the trial judge will read to the jury, concerning

the separate functions of judge and jury, the nature of evidence, how to assess witnesses,

what is meant by an inference, the duty to decide the case only on the evidence, the

presumption of innocence, the burden of proof, the standard of proof, corroboration, and

how these issues impact upon the defence. Other written directions may be given as

necessary concerning issues such as the purpose of a docket, a notice of special defence, the

law as to concert and the concept of mutual corroboration.

[51]

As counsel for the appellant acknowledged, his submission as to the effect of the

decision in Lyttle v HM Advocate would mean that a judge who followed this new procedure,

without then repeating all of the written directions in his concluding charge, would be faced

with an unanswerable claim of having misdirected the jury by omission. Such an outcome

would defeat the purpose of issuing written instructions. To require an oral repetition in the

judge's charge of all that the jury had already been told, and which had been issued to then

in writing, would impose a further burden on both the judge and the jurors for no obvious

purpose.

[52]

It is therefore clear that the import of the decision in the case of Lyttle is confined to

the practice with which it was concerned. It was concerned with the then practice of making

what were truly introductory remarks, in the sense of introducing the personnel and the

general procedure. The case was not concerned with information which was encapsulated

in writing and was introduced as legal directions which the jury had to follow.

[53]

In conducting a trial in accordance with the recently introduced procedures a judge

will no doubt think carefully about the issues and areas of law which he or she wishes to

include in the charge. The content of the charge will vary according to the length of the trial

and the issues raised. In many cases it may be sufficient to draw the attention of the jury to

their copies of what was delivered earlier and to remind them that they must follow both

those directions and what is said in the charge itself. In other cases the judge may feel it

necessary, or appropriate, to recap some of what was said or to revisit some aspects of the

earlier directions in more detail. The evidence led and the speeches of the crown and

defence will doubtless inform the extent to which anything more need be said in relation to

the written directions. In any charge, the directions as a whole must be tailored to the

circumstances of each case.

[54]

In the present case, the directions which the trial judge gave at the commencement of

the trial were adequate to convey to the jury a proper understanding of the purpose and

effect of the docket. He made it clear in the course of his charge that the jury were by that

stage only concerned with the four remaining charges. The court does not accept that the

jury may have been left with an impression that the docket referred to further charges

against the appellant. There was no misdirection. The second ground of appeal therefore

also falls to be refused.