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APPEAL COURT, HIGH COURT OF JUSTICIARY

[2024] HCJAC 30

HCA/2023/516/XC

Lord Justice General

Lord Boyd of Duncansby

Lord Beckett

OPINION OF THE COURT

delivered by LORD CARLOWAY the LORD JUSTICE GENERAL

in the

NOTE OF APPEAL AGAINST CONVICTION

CLARK THOMSON

Appellant

against

HIS MAJESTY'S ADVOCATE

Respondent

Appellant: Barr; Paterson Bell (for McCusker McElroy & Gallanagh, Paisley)

Respondent: Gill KC AD; the Crown Agent

________________________

27 June 2024

Introduction

[1]

There are two grounds of appeal. The first is whether the trial judge failed to give

appropriate directions on the appellant having an honest or reasonable belief in the

complainers' consent to sexual intercourse. The second is whether the conduct of the

Advocate depute deprived the appellant of a fair trial. There are wider issues to be

considered. These involve the scope of questioning of complainers in rape cases and the

periods of time which are taken up examining matters which are peripheral to the principal

charges which bring the case to the High Court. The requirement for an application under

section 275 of the Criminal Procedure (Scotland) Act 1995 also features.

The Charges

[2]

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 charges (1), (6), (8) and (10). It remains important to understand what these charges were,

in order to analyse the scope of the testimony which was adduced over a period of seven

days. They were, first (1) a breach of the peace on various occasions from 2001 to 2006

involving shouting and swearing at GS, referring to her in derogatory terms, uttering threats

of violence to her, destroying her property, punching her dog, forcing her out into a

common area of a block of flats in her underwear, preventing her from having access to her

infant son, and threatening both to kill her dog and to set fire to her flat. The second (6) was

a contravention of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010

(statutory breach of the peace) on various occasions in 2011 involving shouting and

swearing at JH, removing her car keys, refusing to allow her to leave his property,

threatening to keep her dog and discarding her possessions. The third (8) was a breach of

section 39 of the 2010 Act, involving similar conduct towards CG in 2015. The fourth (10)

was a contravention of section 1 of the Domestic Abuse (Scotland) Act 2018 in 2020 and 2021

involving FY. This libelled similar behaviour and included showing her an illustration of

the appellant being hanged by FY, insisting that she keep the bathroom door open when she

was in the bath, destroying her possessions and plying her with unwanted gifts. There were

also two episodes mentioned in a docket attached to the indictment and libelling incidents

which occurred in Egypt and Turkey. In short, these were a series of charges involving

domestic abuse of one type or another against four different women over two decades.

[3]

After the Crown case had closed, the appellant pled guilty to one charge (9) of simple

assault by pushing CG onto a bed in 2015. Otherwise, he went to trial. On 21 July 2023 he

was unanimously found guilty of the remaining charges as follows:

"(2)

on various occasions between ... 2001 and ... 2006 ... at ... Paisley you did

assault [GS] ..., and did, on some occasions whilst she was pregnant, push her onto a

bed, seize her by the body and hold her out of a window, seize her by the throat and

compress same thereby restricting her breathing, threaten to pour boiling water over

her, throw drinks over her head and body and spit on her face, all to her injury and

to the danger of her life;

(3)

on an occasion ... 2002 at... Paisley you ... did assault [GS] and did whilst she

was holding a baby, repeatedly headbutt her causing her to fall to the ground, to her

severe injury, permanent disfigurement and permanent impairment;

(4)

on an occasion between ... 2001 and ... 2006, ... at...Paisley you ... did

indecently assault [GS] and did suck her breast and examine her vagina;

(5)

on various occasions between ... 2001 and ... 2006, at Paisley ... you did

assault [GS] and did penetrate her vagina with your penis and you did rape her;

(7)

on various occasions [in] 2011 ...at ... Paisley... you ... did assault [JH]

Paisley and did penetrate her vagina with your penis and you did thus rape her:

CONTRARY to Section 1 of the Sexual Offences (Scotland) Act 2009; and

(11)

on various occasions between ... 2020 and ... 2021, at ...Johnstone you ... did

assault [FY] and did penetrate her vagina with your penis and you did thus rape her:

CONTRARY to Section 1 of the Sexual Offences (Scotland) Act 2009."

Only charges (5), (7) and (11) required proceedings in the High Court. On 3 October 2023

the trial judge sentenced the appellant to 7 years in cumulo on these charges with a further

2 years concurrent on charges (2) and (3), and an admonition on charge (9).

The Evidence

[4]

One notable feature of the trial, in respect of the sexual offences, was the absence of

any application from either the Crown or the appellant under section 275 of the 1995 Act.

Given the prohibition in section 274, the assumption must have been that the appellant did

not intend to lead any evidence or to pose any questions which showed or tended to show

that the complainers: were not of good character; had engaged in sexual behaviour which

did not form part of the libel; or engaged in non-sexual behaviour, outwith the libel, as

might found an inference of consent to sexual behaviour or a lack of credibility or reliability.

[5]

Another feature was the existence of two (later three) special defences of consent,

each of which initially referred to the appellant having a reasonable belief that the

complainer was consenting. At a Preliminary Hearing on 4 October 2022, the appellant,

under some prompting from the PH judge, intimated that the references to reasonable belief

could be taken out. This was then done. The assumption then was that reasonable belief

would not be an issue at trial.

The evidence of GS

[6]

The examination of the first complainer, GS, began with a series of questions about

how the relationship between GS and the appellant commenced and developed. It may well

be that the Advocate depute had difficulty controlling the complainer, since her answers

often strayed into unnecessary minutiae. Much of what was adduced was at best peripheral

to the libel and at worst strayed far from it, perhaps because, at the time (pre DASA 2018),

what the complainer described was reprehensible rather than criminal.

[7]

Once the specific facts libelled in charge (3), notably head-butting the complainer,

had been dealt with, the first mention of a sexual offence, charge (4) occurs well into the first

day of GS's testimony, just before the court adjourned overnight. The next day, a video,

which had been secretly recorded by the appellant some time in 2004, was played. In this,

the appellant accused the complainer, using foul language, of wanting to have intercourse

with, amongst others, a housing officer. The complainer described the appellant as very

controlling and referred to episodes of violence, not all of which were libelled. These

included spitting on her face and pouring tea over her head.

[8]

Evidence of the sexual offences resumed on the second day. The Advocate depute

asked if the appellant had had intercourse with the complainer when she "didn't want that

to happen". She said that this had occurred "Multiple times". She described being kicked

out of bed by the appellant. It was very cold. She was crying as he would not let her back

into the bed. She was lying on the floor. This episode was not followed through. The

complainer was then asked about other occasions when the appellant wanted to have

intercourse with her. She said that she never wanted him touching her. She:

"played along (inaudible) because I obviously didn't want to upset his feelings,

because ... I'd probably get kicked out of bed. So, (inaudible) I did say no, but it still

would happen. I would (inaudible) shorts on to me and pulled them aside and he'd

just ...do the deed... and that would be it."

[9]

The infant son of the complainer and the appellant was present during these

episodes. The complainer continued:

"I would say I was tired... I was too feart to say ... like properly say no, and

although I said no and said I'm tired, it would still go ahead, and I would allow it to

go ahead because I didn't want to be kicked out the bed or (inaudible) I would have

my son in arms, so I didn't want any... fights... to arise, so I allowed it to happen."

This was expanded upon as follows:

"He wouldn't listen. He would just go ahead".

On being asked why she had allowed this to happen, she said:

"I was scared. ... if I didn't go along with him, I knew I'd either be kicked out the

bed, or there would be some sort of argument, and ... my son was still there in the

bed with me, or in the cot at the bottom of the bed, and I didn't want my kid to hear

... me getting upset or him being angry because he raised his voice."

The complainer said that she would "go stiff" and:

"just allow him to let it happen... There was no intimacy. There was no kissing...

He'd do what he had to do, then turn round and go to sleep".

The complainer would go along with "it" because she was "absolutely petrified of him". All

of this happened two or three times per month. The appellant never asked if he could have

intercourse with the complainer. She would allow it to happen because she was terrified of

waking the infant, or her daughter, who was in the next room. She did not do anything to

encourage him to have intercourse. She would say:

"No, I'm tired; I'm tired tonight. Please, no the night", but it would still continue. If

that's what he wanted, it happened...".

The examination in chief diverted into an incident involving the appellant tearing up a dress

which the complainer had bought for a wedding, to which he was not invited, and

threatening to do some of the things libelled in charge (1), including killing her dog and

setting fire to her flat.

[10]

Cross examination began with somewhat cryptic references to an incident which the

complainer said she was not allowed to talk about, after which bail conditions had been

imposed on the appellant. The appellant had pled guilty to something and had been put on

probation. This seems to have been an assault involving the complainer being hit with a

baby bottle, sustaining a black eye. The cross appears to have been aimed at establishing

that, after this incident, the appellant and complainer had "resumed" their relationship,

although the complainer said that she had not wanted this. The appellant kept coming into

her house despite her protestations.

[11]

It was put to the complainer that it was she who had been the jealous one; asking

whether the appellant had had his hair cut by a female or a male hairdresser and then

checking to see whether that were so. She was asked whether, given the deterioration of the

relationship, she could have terminated her pregnancy or used the morning after pill. It was

put to her that she would argue with the appellant "for any reason or none". The reverse of

the complainer's account was presented; for example that it had been she who had asked

him if he had had intercourse with various women and had accused him of "cheating" on

her repeatedly. It was the complainer who had destroyed the appellant's shirts. She was

accused of throwing a knife at the appellant. She was asked questions about: breastfeeding

her infant son; being unhappy about the amount of housework that the appellant was doing;

and the appellant having to obtain a court order to secure contact with their son. The cross

proceeded to deal with the appellant's plea of self-defence to the head-butting. It covered an

allegation that the complainer had threatened to cut off the appellant's penis

[12]

So far as the sexual offences were concerned, the complainer was asked whether she

had told the court about incidents during which she "allowed" the appellant to have

intercourse with her although she did not want this. This was not followed through. There

was no questioning designed to elicit that the appellant might have believed that the

complainer was consenting to intercourse, even although she was not doing so.

The evidence of JH

[13]

The evidence of JH was taken on commission before a different judge. Questions

about the commencement and development of the relationship followed. The appellant's

controlling and paranoid nature was described. Much time was spent exploring where the

appellant and complainer lived, their daily activities and their financial arrangements. The

Egyptian docket incident, which involved the appellant retaining the complainer's passport,

disconnecting a hotel room phone and seizing her around the neck, was covered in some

detail.

[14]

Evidence about the sexual offences started well into the complainer's testimony. She

said that there were times when she did not want to have intercourse and the appellant did;

in which case she:

"would probably just do it because I thought I would just get a few days out of the

way, that would be it for a few days and just take the pressure off".

The complainer referred to the appellant wanting to have intercourse with her as a form of

apology, "make-up" or re-assurance after arguments. She:

"would probably just submit and just go along with it... I would maybe like switch

off for a wee bit, and just kinda let things happen".

On the other hand, there were times when the complainer would say that she did not want

to have intercourse and had said "no, I don't want to" but he would say:

"let's do it quickly, just quick. No no it's fine I don't want to... oh come on I won't

be long and there was a time that he kinda just persevered and I had my underwear

on and he did pull my pants to the side and just did go in and I just lay there".

The complainer explained that this was when she had said that she did not want to have

intercourse. Although "no" meant that she did not want to have intercourse, that is not

what it meant to the appellant. The appellant would have known that the complainer meant

"no".

[15]

In cross examination the complainer accepted that she had continued in a

relationship with the appellant for three weeks after the Egyptian episode. There were

questions about whether the complainer asked to be a joint tenant with the appellant, about

the degree of each person's interest in what the other person was doing and in the

arrangements made for the appellant's son. The cross continued by examining why the

appellant frequently asked the complainer to pick him up in her car. The complainer was

asked about how alcohol affected her and whether she had been drunk on the occasion in

Egypt. She accepted that she had not reported any of the appellant's behaviour to the police

until they visited her three years before the trial.

[16]

The sexual offence allegations were dealt with well into the cross. The complainer

had said in her statement to the police that "I never didn't consent to sex with him". She

accepted that she had gone along with having intercourse to give herself a break for a couple

of days. After the first statement, she had unlocked some deep rooted memories. She had

said in a second statement that, when they had had intercourse without her consent, she did

not think that the appellant thought that he was doing anything wrong. This was a

reference to his attitude after intercourse had taken place. He was seeking re-assurance,

even although the complainer had said "no". The complainer continued:

"There was times that I would go along with it just to get, there was times I would

say no and I didn't want to".

The evidence of the appellant

[17]

The examination of the appellant started with a detailed exploration of how his

relationship with GS began and developed, how the complainer came to be pregnant and

whether the appellant's attitude to the complainer altered after the birth. The appellant gave

evidence about the complainer becoming jealous, especially in relation to the appellant's

hairdresser. He was not the jealous one in the relationship. The complainer used to throw

things at him and scratch him. She destroyed his clothes. The appellant accepted calling the

complainer "names and stuff". He denied assaulting the complainer other than pushing her

to the ground on one occasion. That had resulted in a conviction. There was an in-depth

study of the head-butting incident; the appellant admitting that he had "stuck the nut on

her", but only once, because she had attacked him with her nails. He had been carrying the

infant at the time and he was protecting him too. The appellant accepted, given the video

evidence, that he had called the complainer "vile names".

[18]

The appellant's evidence on the sexual offences involving GS is contained in about

five pages of transcription. He denied that he had intercourse with the complainer even

although she had said "no". He maintained that on no occasion did the complainer say

"no". Any intercourse was preceded by acts of intimacy. On every occasion on which

intercourse occurred, the complainer "consented". She had not just been "allowing it to

happen". She was affectionate and participating. He never kicked her out of bed nor was he

violent to her. He never gained the impression that the complainer was "just playing

along". Every occasion was consensual. She was not rigid.

[19]

The examination continued with an exploration of the commencement and

development of the relationship with JH. He described this complainer as becoming broody

and moving in with the appellant. The appellant described a happy relationship with

occasional arguments. A great deal of time was taken up going over how the appellant had

contributed positively, including financially, to the relationship. The appellant admitted

throwing the complainer's clothes out into the street at one point. The Egyptian incident

was covered, with the appellant denying that he had taken the complainer's passport or

seized the complainer by the throat.

[20]

Evidence about the sexual offences comprised about six pages of transcription. The

appellant was asked whether there were times when the complainer did not want to have

intercourse but would "go along with sex". He said that he had never had that impression.

In answer to a leading question, he agreed that on every occasion when intercourse occurred

it had been "entirely consensual". The complainer had not said "no". She had, as it was put

in another leading question, "willingly and consensually" gone along with the sexual

activity. He was never aware of the complainer "switching off and letting things happen".

That, he said, never happened. He had never said "Let's just do it quick".

[21]

In cross-examination, the Advocate depute initially tried to establish what was not in

dispute. He started with the following question:

"So, can we agree... that from what we have been told by the four complainers... at

times you can be an angry person".

The appellant agreed, but he disagreed, in answer to a similar question, that he could be an

aggressive person. He then accepted that he could sometimes be aggressive. He agreed that

the evidence pointed to him being a jealous person, "A wee bit". It was then put to him that

he was a jealous person, to which he replied "Sometimes", "No always". The trial judge

then stopped this line.

[22]

The appellant denied that he could, at times, be intimidating. He accepted that he

could be paranoid. He accepted that he had used the words "slut", "slag" and "cow". He

denied that the evidence from GS and FY supported him being an "angry, aggressive,

jealous, paranoid, abusive person". He admitted pleading guilty to an assault on GS,

although he could not recall the details. The head-butting incident was explored. The

Advocate depute then put to the appellant that:

"You're an angry, aggressive, jealous, paranoid, abusive man".

He replied that he had made mistakes. The video was played and the appellant admitted

that it showed him as aggressive and jealous but not intimidating. He denied various

assaults, and punching the dog, but accepted that he could "lose the plot".

[23]

The sexual offences are examined over about nine pages of transcription. The

appellant at first denied that the complainers had ever said that they were tired or "Not

tonight". He then said that this did happen. Sometimes GS had said "no" but:

"...she only said `No' ... I mean she's like never said `No' when consenting to sex".

The judge intervened to clarify the position, since the appellant had said in chief that GS had

not said "No, I'm tired". The appellant explained that he was a bit confused. When GS had

said that she was tired, they did not have intercourse. He accepted that he did not like it

when GS said "no" but he had not carried on regardless. A not dissimilar pattern of cross

related to JH, with the appellant accepting that at times she had said that she did not want to

have intercourse, in which case intercourse did not occur. The Advocate depute pressed the

appellant upon this but he did not waver.

Speeches and Charge

[24]

In his address to the jury, the Advocate depute referred to the definition of rape in

section 1 of the 2009 Act and included the requirement of a lack of belief on the part of the

accused that the complainer was consenting. He continued by stating that the question of

either honest (common law) or reasonable (statutory) belief did not arise as there was no

evidence to put that in issue. The appellant's position had been that the complainers were

all active participants. When it came to the defence speech, counsel referred to the

appellant's evidence being that "he reasonably believed that [JH] was consenting" and that

was a defence to the charge. Having suggested that the evidence pointed to both GS and JH

consenting, counsel continued that:

"at the very least, and this is equally important, if not more important, at the very

least [the accused] had a genuine and reasonable belief in consenting and that the

crown has not proved any of the rape charges".

[25]

The judge intervened. He pointed out that reasonable belief had been removed from

the special defences and it was thus not thought that it would be an issue at trial. Counsel

submitted that it did not matter what was contained in the special defences. The issue had

arisen on the evidence of the complainers and the appellant. Even if the appellant had not

said that he had a reasonable belief, one reading of the complainers' testimony was that he

may have had such a belief. The Advocate depute maintained that no such issue arose. The

judge agreed.

[26]

The jury were directed that rape, at common law was committed by the deliberate

penetration of the woman without her consent. Under section 1 of the 2009 Act, it consisted

of the intentional penetration of the complainer "without the complainer's consent and

without any reasonable belief on the part of the accused that the complainer consented. In

this case... no issue of reasonable belief arises for consideration".

Submissions

Appellant

[27]

The appellant advanced two grounds of appeal. First, in relation to the convictions

for rape, the trial judge failed to give correct directions on whether the appellant may have

had a reasonable belief that the complainers consented. Secondly, the conduct of the

Advocate depute, in asking questions designed to show that the appellant was of bad

character, deprived him of a fair trial.

[28]

GS's evidence was that, although she told the appellant that she did not want to have

intercourse, she would go along with it. She did not say to the appellant directly that she

was not consenting. JH's evidence was that the appellant would have intercourse to "take

the pressure off" for a few days. There were times when she wanted intercourse with the

appellant and times when she didn't. On the latter occasions, she would switch off and let

him do what he wanted. She accepted that in a statement to the police she had stated "I

never didn't consent to sex with him." Both GS and JH testified that, when they did not

want sex, they told the appellant beforehand. In relation to FY, the conviction depended

upon mutual corroboration from GS and JH.

[29]

The appellant's position in his special defence and in evidence was that the

complainers had consented. It was accepted that he had made no reference in his special

defence to honest or reasonable belief. Where a lack of honest or reasonable belief was a live

issue, the trial judge ought to give directions on that point. The existence of an honest or

reasonable belief was an inference to be drawn from the evidence (Maqsood v HM Advocate

2019 JC 45, LJG (Carloway) at paras [16] - [17]). There was evidence from the complainers

and the appellant from which the jury could have inferred an honest or reasonable belief.

The complainers' evidence was such that the appellant might have been reasonably or

honestly mistaken about their consent. He would have had no reason to believe that they

were not consenting. His own evidence that they did consent was an expression of his belief

about their state of mind.

[30]

The lack of an honest or reasonable belief was an essential element of rape

respectively at common law and in statute (Briggs v HM Advocate 2019 SCCR 323 at

para [19]; Sexual Offences (Scotland) Act 2009, s 1(1)(a) and (b)). It was incumbent upon the

Crown to prove the absence of an honest or reasonable belief where it was a live issue in

evidence, regardless of whether it was stated in a special defence or spoken to by the

accused. Thus, the trial judge ought to have given appropriate directions.

[31]

The Advocate depute's cross-examination amounted to character assassination. He

went beyond putting questions on the evidence and expressed his own opinion of the

appellant's character. No application under section 266(4)(a) of the 1995 Act to admit

evidence of bad character had been made. The Advocate depute invited the jury to

determine guilt on character as follows:

"You know the lens you should look through when you assess [the accused]. Or

maybe you might think that the angry, possessive, violent, jealous, paranoid

[accused] does respect a woman's right to say no."

[32]

The Advocate depute's conduct contravened fundamental principles of fairness (KP

v HM Advocate 2018 JC 33 at paras [16]-[31]). He had inappropriately stated his opinion that

the appellant was guilty. He had treated the appellant in a disrespectful and bullying

manner. Although no objection had been taken, this was because the Advocate depute had

initially conducted his cross-examination in an unobjectionable manner, focusing on aspects

of the appellant's character which were grounded in the evidence. Only later did he

combine these individual aspects into wider observations. By that stage objection would

have been pointless. The issue was whether the Advocate depute's conduct rendered the

trial unfair, regardless of whether objection had been taken.

[33]

The effect of the Advocate depute's conduct was to deprive the appellant of the

chance to give his best evidence. The appellant had felt overwhelmed. He had "zoned out"

and had been unable to give proper answers. During the overnight break in cross-

examination, he had felt suicidal. In offering his own personal opinion on the appellant's

character, the Advocate depute had created a risk that the jury would determine the case

other than on the evidence (Boucher v The Queen [1955] SCR 16 at 31). The Advocate

depute's conduct was so gross, so persistent, so prejudicial, and so irremediable that the

court was obliged to quash the conviction as unsafe (Randall v The Queen [2002] 1 WLR 2237

at para 28).

Respondent

[34]

The respondent invited the court to refuse the appeal. No defence of honest or

reasonable belief had been raised on the evidence. Therefore, there was no requirement to

direct the jury on it (Blyth v HM Advocate 2006 JC 64; Maqsood v HM Advocate). It was not

appropriate for the judge to do so if reasonable or honest belief did not arise (RKS v HM

Advocate 2020 JC 235).

[35]

The complainers' position was that they had said words to the effect of "not tonight"

or "no, I'm tired", but the appellant had gone ahead anyway. The appellant's position

directly contracted that of the complainers. His position was he had always desisted when

the complainers protested that they were tired. Every time they had intercourse, the

complainers had always been active and consenting participants. The appellant did not

speak to situations in which the complainers had objected, then submitted to sex leading

him to confuse passivity with consent. That was inconsistent with his evidence of active

consent by every complainer on every occasion. The trial judge, in declining to direct the

jury on honest or reasonable belief, did nothing more than what the law required him to do.

[36]

There was no breach of section 266 of the 1995 Act and no departure from good and

proper practice. Even if there had been a breach, it was waived by the appellant's failure to

object. If there was a departure, it was insufficiently serious to give rise to a miscarriage of

justice.

[37]

There was significant evidence that the appellant had acted in an angry, aggressive,

jealous, paranoid and abusive way. Some of this emanated from the appellant himself, in

the form of the video in which he recorded himself berating GS and calling her a "slag". The

Advocate depute's questioning was that the appellant had demonstrated the qualities which

the complainers had attributed to him. He had properly put to the appellant a

characterisation based on the evidence. None of this required a section 266 application.

Where section 266 is breached and no objection is taken, the accused is deemed to have

waived compliance (Cordiner v HM Advocate 1993 SLT 2). Section 118(8) of the 1995 Act then

operated to bar the appellant from raising the issue on appeal.

[38]

The appellant required to demonstrate a departure from good and proper practice

which was "so gross, or so persistent, or so prejudicial, or so irremediable" as to deprive him

of a fair trial (KP v HM Advocate, at para [20] citing Randall at para 28). He had not done so.

Counsel's explanation for his lack of objection did not bear scrutiny. He could have moved

to desert but, in the exercise of his professional judgement, chose not to. The trial judge

reported his view was there was no impropriety in the Advocate depute's cross or his

speech. The views of the trial judge were to be afforded considerable weight (Fraser v HM

Advocate 2014 JC 115).

Decision

[39]

The rules of evidence are designed, in part, to keep the scope of the inquiry in a

criminal trial within reasonable bounds. One rule is that, as a generality, the scope is

confined to facts which are relevant to proof of the guilt of the accused on the charges

libelled (CJM v HM Advocate 2013 SCCR 215, LJC (Carloway) at para [28]). The primary

inquiry is about what the accused did, although the acts of the complainer may be relevant

to that. It has also been made abundantly clear that, even if evidence is relevant, in sexual

offence cases, it must still overcome the statutory hurdles in sections 274 and 275 of the

Criminal Procedure (Scotland) Act 1995.

[40]

In this trial, it is of some concern that the inquiry consisted of a general exploration of

the commencement and development of the relationships between the appellant and the

complainers without much regard to either their relevancy to the charges or the statutory

provisions. It might be argued that all that was occurring was that both parties were setting

the scene prior to examining the charges which brought the case to the High Court; ie the

rapes in charges (5), (7) and (11). This might have some substance, but for the sheer volume

of material which was adduced from the complainers and the appellant and the

comparatively small amount of testimony, certainly no more than about a tenth of the total,

which concerned the serious charges. Many difficulties might have been avoided if parties

had carefully considered the evidence which they intended to adduce and adopted the

practice in the Preliminary Hearings Bench Book (at para 9.11.1). Any section 275

application should have been presented prior to the Preliminary Hearing. Questions of

admissibility at common law and in terms of sections 274 and 275 would have been resolved

before the trial. If the court granted a section 275 application, it would have been able to

control the inferences which the jury might be invited to draw from any evidence adduced

under it (s 275(6) and 8)).

[41]

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 accused them of a variety of misbehaviours, including acts

of violence, jealousy and vandalism, in the absence of any section 275 application. 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.

[42]

Although it can be difficult to anticipate the line of questioning to be adopted, trial

judges should be alert to irrelevant questioning (Macdonald v HM Advocate 2020 JC 244, LJG

(Carloway), delivering the Opinion of the Court, at paras [33], [37] and [47]). Where an

indictment features sexual offences, section 274 places a duty on the court whereby it "shall

not admit, or allow questioning designed to elicit, evidence which shows or tends to show"

the matters specified in subsections 1(a), (b), (c) and (d). The same duty applies when

evidence is taken on commission (s 271I(5). If the time of the High Court is not to be taken

up exploring events which, if anything, might find their way into a summary complaint, it

will remain important for parties to confine themselves to the libel. They must comply with

section 274 unless a section 275 application has been allowed. Ultimately, the Crown

withdrew the libel on the breach of the peace and domestic abuse charges. It was

presumably not contended that these charges had any substantial corroborative value

relative to the rape charges. If the purpose was to demonstrate a similarity in the

circumstances in which the rapes occurred, it may have been legitimate to support the

existence of such a similarity, thereby indicating that those crimes were committed in

pursuit of a single course of criminal conduct systematically pursued. If it was only to

explain the abusive nature of the appellant's general behaviour, that might, at least in some

situations, be taken as an illegitimate attempt to prove the charges based on an accused's

general character and not upon evidence of what he was charged with. That is not what

occurred here.

[43]

The first ground of appeal is not well founded. There was evidence from both GS

and JH that, although there were occasions when they did not object to having intercourse,

there were others upon which they had said that they had told the appellant that they did

not want to have intercourse, but the appellant carried on regardless. That is rape, both at

common law and under section 1 of the 2009 Act. The evidence of the appellant was in

sharp contrast to that of the complainers. He said that on each occasion when they had

intercourse, the complainers were affectionate and participating or words to that effect. In

that state of evidential conflict, the jury had to decide which, if either, version of events to

accept as part of the exercise of determining whether they were satisfied beyond reasonable

doubt of the appellant's guilt on each charge.

[44]

The matter was explained in Maqsood v HM Advocate 2019 JC 45 as follows (LJG

(Carloway), delivering the Opinion of the Court, at para [17]):

"... although a judge ought to continue to direct a jury that the definition of rape

includes an absence of reasonable belief, no further direction on reasonable belief is

required unless that is a live issue at trial. That issue will be live only in a limited

number of situations in which, on the evidence, although the jury might find that the

complainer did not consent, the circumstances were such that a reasonable person

could nevertheless think that she was consenting. That does not normally arise, for

example, where an accused describes a situation in which the complainer is clearly

consenting and there is no room for a misunderstanding."

A reasonable person would not think that a woman who says "No", "Not tonight" and "I'm

tired" was instead consenting to intercourse. On this basis, the trial judge was correct to

direct the jury that no issue of honest or reasonable belief arose. Insofar as the appellant

denied that instances of rape described by the complainers occurred at all, again no issue of

honest or reasonable belief arose (Briggs v HM Advocate 2019 SCCR 323, Lord Glennie,

delivering the Opinion of the Court, at para [19]).

[45]

There is a second, procedural, basis upon which this ground would be bound to fail.

The issue of honest or reasonable belief was raised at the Preliminary Hearing in the context

of the contents of the then special defences of consent. 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. A special defence is designed to give the Crown notice of the

nature of the defence. The Crown are entitled to rely on what the special defence says, or

does not say, in presenting their case to the jury. In the absence of an averment of belief, the

Crown are entitled to approach the case, including their address to the jury, on that basis.

They cannot be expected to anticipate that honest or reasonable belief will emerge after they

have concluded their address and are functus officio. It was not appropriate for defence

counsel to introduce the concept, without notice, into the defence speech. It was not

appropriate to introduce a defence for which there was no evidential base. If a complainer

says she did not consent and the accused say she did, it is not for defence counsel to invent a

middle, speculative ground.

[46]

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. That was not an attack on the appellant's general

character beyond what had been libelled in the breach of the peace and domestic abuse

charges. In putting the allegations to the appellant, the Advocate depute did not overstep

the lines of propriety.

[47]

Once again, not only is there a substantive reason for rejecting the appellant's

contentions on this ground, there is a procedural one too. 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 (1995 Act, s 118(8)). 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.

[48]

The appellant contends that the Advocate depute's conduct breached the prohibition

on questions designed to demonstrate that the appellant was of bad character in

section 266(4) of the 1995 Act. There are several problems with this. The lack of timeous

objection is once again fatal to this argument (Cordiner v HM Advocate 1993 SLT 2, LJC (Ross)

at 5). Secondly, the appellant had, as already described, impugned the character of the

complainers by claiming that it was them who had attacked the appellant physically,

damaged his possessions and acted in a jealous and paranoid manner (see 1995 Act,

s 266(4)(b)).

[49]

It is of considerable note that the trial judge has reported that he did not observe any

conduct on the part of the Advocate depute which strayed across the lines of propriety.

Having read the cross-examination of the appellant, the court agrees. There is nothing in the

Advocate depute's speech which might be taken to be an expression of a personal opinion

on credibility, as distinct from a submission on the evidence. The appellant's contention that

he had been overwhelmed and "zoned out" during cross is mere assertion. It is not borne

out by the trial judge's observations, and there is certainly nothing that could remotely be

described as oppressive conduct. The appeal on this ground is also refused.