Introduction

The case of APPEAL AGAINST CONVICTION BY AW and HB ([2022] HCJAC 16) adjudicated by the Scottish High Court of Justiciary on January 28, 2021, centers around challenging the convictions of two appellants, AW and HB, for rape. The convictions arose from a single incident at HB's flat in Edinburgh, where the complainant alleged non-consensual sexual intercourse by both appellants. The primary issues scrutinized in this appeal pertain to the trial judge's directions to the jury concerning consent, reasonable belief, and the necessity of corroborative evidence, all of which the appellants argue were inadequately addressed, leading to a miscarriage of justice.

Summary of the Judgment

The High Court found in favor of the appellants, overturning their rape convictions on the grounds of significant deficiencies in the trial judge's instructions to the jury. The court identified that the trial judge failed to properly guide the jury on critical legal aspects, such as the differentiation between various types of corroborative evidence, the legal standards for consent and reasonable belief, and the appropriate handling of hearsay evidence like text and voicemail messages. Additionally, the court highlighted improper section 275 applications that allowed inadmissible evidence to be considered, further undermining the integrity of the original convictions.

Analysis

Precedents Cited

The judgment extensively referenced several key precedents that influenced the court's decision:

• DS v HMA [2011] HCJAC 125: Highlighted the necessity for comprehensive jury directions to prevent confusion and ensure a reasoned verdict.
• MacDonald v HMA 2020 JC 244: Emphasized the trial judge's obligation to correct any misdirections arising from defense counsel's improper arguments.
• Graham v HM Advocate 2017 SCCR 497: Addressed the misdirection regarding the requirement for corroboration of reasonable belief in consent.
• CH v HMA [2016] HCJAC 4: Stressed that jury charges must enable an informed observer to understand the basis for the verdict, ensuring compliance with the European Convention on Human Rights.
• Goldie v HMA 2020 JC 164: Affirmed that jury verdicts are part of a broader framework, including counsel speeches and judicial directions, which together must provide a clear basis for conviction.

Legal Reasoning

The court's legal reasoning centered on the inadequacy of the trial judge's instructions, which failed to:

• Differentiate between types of corroborative evidence, such as distress de recenti, medical evidence, and hearsay statements.
• Provide clear guidance on evaluating the credibility and reliability of the complainant, especially in light of contradictory evidence like misleading text messages.
• Address the legal standards for reasonable belief in consent, erroneously framing it as requiring corroboration.
• Handle improper section 275 applications that admitted irrelevant and prejudicial evidence, thereby intruding into the complainant's personal life without legal justification.

The judgment elucidated that these oversights prevented the jury from adequately assessing whether the Crown had met its burden of proving the case beyond a reasonable doubt, particularly concerning consent and the necessity of corroboration.

Impact

This judgment has profound implications for future rape convictions in Scotland:

• Jury Directions: Courts must ensure that jury instructions comprehensively cover the legal standards for consent, reasonable belief, and the role of corroborative evidence, tailored to the specifics of each case.
• Section 275 Applications: Judicial scrutiny of section 275 applications will likely become more stringent, preventing the admission of irrelevant or prejudicial evidence that could compromise the fairness of the trial.
• Defense Counsel Conduct: Defense lawyers will need to exercise greater caution in presenting special defenses, ensuring that they do not inadvertently mislead the jury or imply unsupported claims of consent.
• Compliance with ECHR: The decision reinforces the necessity for trial processes to align with the European Convention on Human Rights, particularly Article 6, which guarantees the right to a fair trial.

Complex Concepts Simplified

Section 275 of the Criminal Procedure (Scotland) Act 1995

This section allows the defense to present evidence that may support the accused's case, such as prior sexual activity with the complainant. However, the application of this section must be meticulously scrutinized to ensure relevance and admissibility.

Res Gestae

A Latin term meaning "things done," res gestae refers to statements or actions that are part of the event in question and are so closely connected that they are considered spontaneous and relevant to understanding the incident.

Corroboration

In Scottish law, corroboration requires that the jury find independent evidence supporting a crucial element of the prosecution's case, beyond merely agreeing with the complainant's testimony.

Reasonable Belief in Consent

This legal standard assesses whether the accused had an objective, reasonable belief that the complainant consented to the sexual activity. It's not sufficient for the belief to be merely honest or subjective; it must be justifiable based on the evidence presented.

Hearsay Evidence

Hearsay involves statements made outside the courtroom that are presented to prove the truth of the matter asserted. Generally, such evidence is inadmissible unless it falls under specific exceptions, as it can be unreliable.

Special Defence

A special defence is a particular legal argument raised by the defense, such as consent or duress, which, if proven, can negate the criminal liability of the accused. It requires specific evidence and cannot alter the burden of proof on the prosecution.

Conclusion

The judgment in APPEAL AGAINST CONVICTION BY AW and HB ([2022] HCJAC 16) serves as a critical reminder of the paramount importance of precise and comprehensive jury directions in criminal trials, especially in sensitive cases involving allegations of sexual violence. By overturning the convictions due to procedural deficiencies, the High Court underscores the judiciary's commitment to upholding fairness and justice, ensuring that convictions are firmly grounded in both the letter and spirit of the law. This decision not only rectifies the specific injustices faced by the appellants but also sets a robust precedent that will guide future trials, reinforcing the standards required to safeguard the rights of all parties involved.