Common Law Dockets: When an Erroneous Section 288BA Direction is De Minimis and Does Not Cause a Miscarriage of Justice

1. Introduction

In Appeal against Conviction by RS against His Majesty's Advocate [2026] HCJAC 19 (High Court of Justiciary Appeal Court), the appellant challenged convictions arising from allegations by two complainers (A and B) of prolonged abusive and sexual offending. The Crown case proceeded largely on Moorov-type mutual corroboration across charges and complainers.

The sole ground of appeal permitted concerned the trial judge’s jury directions about a “docket” attached to the indictment. The docket was expressly narrated as being “in terms of the common law” and referred to prior conduct towards complainer A (unwanted contact by telephone/text) which the appellant appeared already to have been convicted of.

The legal issue was narrow but important in practice: where a judge mistakenly directs the jury using the statutory model for section 288BA of the Criminal Procedure (Scotland) Act 1995 (sexual-offence-connected dockets), even though the docket is not within that statutory regime, does that misdirection amount to a miscarriage of justice?

2. Summary of the Judgment

  • The Appeal Court held the trial judge’s docket direction was erroneous, because the docket was common law, not a section 288BA docket.
  • However, the Court held the error was immaterial on the facts and did not create a miscarriage of justice.
  • The appeal was therefore refused.
  • The Court issued practical guidance: charges should be bespoke; Jury Manual templates may require adaptation; and it may assist if a sample direction for common law dockets is developed.

3. Analysis

3.1 Precedents Cited

Nelson v HM Advocate 1994 JC 94

Nelson supplied the foundational statement explaining why dockets exist at common law: the Crown may lead relevant evidence that may also suggest other criminality, unless fair notice requires the other matter to be charged or expressly referenced. The Appeal Court relied on the passage at p 104C–D (Lord Justice General (Hope)) to underline that common law dockets can legitimately include conduct that may look like “bad character” material, provided notice is given.

In this appeal, Nelson mattered because it anchored the correct legal characterisation of the docket: it was not a statutory “sexual docket” mechanism but a common law notice device.

Sim v HM Advocate [2016] HCJAC 48, 2016 JC 174

Sim was cited for the familiar appellate approach: directions are assessed in context and “as a whole” rather than by isolating a single passage. The Court applied that methodology to ask whether the erroneous reference to sexual-offence docket rules had any realistic effect on the jury’s reasoning, given the overall charge and the trial evidence.

Doherty v HM Advocate [2014] HCJAC 94, 2014 SCL 758; MacDougall v HM Advocate [2021] HCJAC 32

These authorities were invoked to support the proposition that not every misdirection leads to a miscarriage; the appellate court must evaluate materiality and practical impact. The present decision follows that line: an error can be acknowledged, yet treated as non-determinative where it adds nothing of consequence to the evidential picture the jury necessarily accepted.

McGartland v HM Advocate [2015] HCJAC 23

Cited in the Court’s postscript, McGartland underlines the need for a bespoke charge. The Court used this to criticise over-reliance on standard templates where the factual/legal setting differs—here, a statutory script was used for a non-statutory docket.

HM Advocate v Moynihan [2018] HCJAC 43, 2019 SCCR 61

Moynihan was referenced to acknowledge that Jury Manual sample directions for statutory dockets can be perfectly adequate where the statute applies. The key point in this case is the limitation: such directions may require adjustment—and may be unsuitable—for common law dockets.

3.2 Legal Reasoning

(a) The legal misstep: treating a common law docket as a section 288BA docket

The docket was explicitly stated to be “in terms of the common law”. Both parties agreed it did not fall within section 288BA, which permits dockets only for acts or omissions “connected with a sexual offence” in the statutory sense (specifiable by reference to a sexual offence and relating to the same event or a series of events including the charged offence).

The trial judge nonetheless directed the jury using the statutory framework (including the proposition that “the alleged criminal act must be connected with a sexual offence”). The Appeal Court held that this was wrong and therefore a misdirection.

(b) Why the misdirection did not matter on these facts

The Court’s miscarriage analysis was practical and evidence-led:

  1. No corroborative uplift for complainer A: the docket evidence was spoken to by complainer A. It therefore could not operate as corroboration for her own allegations. The Court stated it “could not have been used as corroboration” for any charge relating to complainer A.
  2. No material addition in relation to complainer B: while the docket might be seen as “another source” supporting a pattern of abusive conduct, it added “no material sense” to the evidence, particularly given charge (004) (course of conduct) and the broader accepted narrative of serious abusive and sexual offending.
  3. Overwhelming acceptance of the gravamen: the jury must have accepted the core evidence of both complainers across serious allegations. Against that, any incremental effect from the docket was characterised as de minimis.
  4. Forensic reality at trial: the docket was “hardly referred to in the speeches”, reinforcing that it was not central to the jury’s decision-making.

The Court accepted that the statutory reference could have been “confusing” and could theoretically have led the jury to treat docket evidence as adding to what could be used on sexual charges. But it concluded it was “inconceivable” that any such weight could have flipped a verdict from acquittal to conviction in a case of this kind. The misdirection was therefore not a miscarriage of justice.

3.3 Impact

(a) Clear appellate signal: error ≠ miscarriage

The decision reinforces an established appellate theme in Scotland: identifying a misdirection is only the beginning; the decisive question is whether it was material in the context of the whole trial and evidence. Where the contested direction relates to peripheral material, the Court may treat it as de minimis.

(b) Practical warning about dockets and “template directions”

The postscript is likely to have day-to-day influence:

  • Indictment literacy: the Court emphasised that a basic perusal of the indictment would have shown the docket was common law.
  • Bespoke directions: a statutory template should not be used where the statutory conditions are absent.
  • Future guidance tools: the Court suggested the Jury Manual Committee consider producing a sample direction for common law dockets given their increasing prevalence.

(c) Interaction with Moorov cases

Although Moorov is not analysed doctrinally here, the decision is significant for multi-complainer prosecutions where mutual corroboration and “pattern” reasoning are live. It demonstrates that appellate courts will scrutinise whether a direction has actually altered the evidential calculus in a Moorov-type case, rather than assuming prejudice from the mere presence of an error.

4. Complex Concepts Simplified

Docket (in an indictment)
A notice appended to the indictment identifying additional conduct the Crown may lead evidence about. It is not itself a charge and the jury does not return a verdict on it.
Section 288BA docket
A statutory form of docket limited to acts/omissions connected to a charged sexual offence in a defined way (linked by reference to a sexual offence and part of the same event or series of events).
Common law docket
A non-statutory notice mechanism grounded in fair notice principles (as discussed in Nelson v HM Advocate 1994 JC 94), sometimes used where evidence may incidentally suggest other wrongdoing or “bad character”.
Misdirection
An incorrect statement of law (or legally misleading instruction) by the trial judge to the jury.
Miscarriage of justice
The threshold for allowing an appeal: not every error qualifies; the appeal court asks whether the error was material such that the conviction is unsafe.
De minimis
So minor or immaterial that it could not realistically have affected the outcome.
Moorov
A Scottish doctrine allowing mutual corroboration where there is a course of similar offending closely connected in character, time and circumstances, sometimes across complainers.

5. Conclusion

[2026] HCJAC 19 draws a sharp practical line between statutory sexual-offence dockets under section 288BA and common law dockets. Using the wrong template direction is a mispredirection, but the appeal will only succeed if the error is material.

On the facts, the docket evidence added nothing of consequence to the jury’s task, could not corroborate complainer A’s own allegations, and was peripheral at trial. The misdirection was therefore de minimis and no miscarriage occurred. The Court’s postscript is an “object lesson”: read the papers, identify the true legal basis of any docket, and deliver a bespoke charge rather than defaulting to statutory scripts.