Glass v HM Advocate (2025): Implied Admissions, Jury Common-Sense, and the Limits of Mandatory Directions

Introduction

The Scottish High Court of Justiciary, sitting as a three-judge Appeal Court, has handed down a decision of practical importance for trial judges and practitioners alike. In Glass v HM Advocate ([2025] HCJAC 31) the Court refused an appeal against conviction brought by Darren Glass, who had been found guilty of multiple sexual offences, including rape of a 15-year-old (complainer T). The appellant argued that the trial judge had misdirected the jury by failing to tell them they must first be satisfied that Mr Glass heard the accusation of rape before they could treat his subsequent silence as an implied admission. The Appeal Court rejected that contention, holding that a specific “hearing” direction is unnecessary where the issue is obvious and the evidence shows the matter was in dispute before the jury.

While at first glance the ruling may seem case-specific, it crystallises an important procedural and evidential point: trial judges are not required to deliver microscopic directions on self-evident matters that ordinary jurors can and will apply through common-sense experience.

Summary of the Judgment

The appellant had been convicted on five charges, most seriously the rape of T (Charge 1). Sentenced to eight years’ imprisonment, he challenged only the conviction, not the sentence.
The sole ground of appeal focussed on the use the jury were invited to make of a 7 June 2022 telephone call between the complainer’s mother (L) and the appellant. L said she screamed down the phone, accusing him of raping her daughter; he allegedly did not deny it.
The defence submission was that the jury should have been expressly told they must be sure Mr Glass heard the allegation before treating his non-denial as incriminatory. The absence of such a direction was alleged to be a misdirection causing injustice.
The Appeal Court (Lord Justice Clerk, Lord Matthews delivering the opinion, and Lord Armstrong) held:
- Juries can be credited with ordinary common-sense; they do not require a direction spelling out that silence can only be significant if the words were actually heard.
- The evidence and trial judge’s summation had already framed the key factual alternatives: (i) an accusation was made and heard, or (ii) no such accusation was made or heard amidst shouting.
- Given that the defence case was put squarely to the jury and the judge directed them accordingly, there was no misdirection and therefore no miscarriage of justice.
The appeal was accordingly refused.

Analysis

Precedents Cited

The Court’s opinion briefly referenced several earlier authorities, signalling the development of the law on implied admissions and appellate intervention:

CR v HM Advocate [2022] HCJAC 25; 2022 JC 235
LC v HM Advocate [2022] HCJAC 47
Buchan v HM Advocate 1995 SLT 1057
Wilson v HM Advocate [2017] HCJAC 52; 2017 SCL 783
Campbell v HM Advocate [2020] HCJAC 47; 2022 JC 243

Two lines of authority are particularly influential:

Implied Admissions & Silence
In CR and LC the Appeal Court explored when silence can operate as evidence of guilt, focussing on whether the comment made to the accused amounted to a genuine accusation. In Glass, by contrast, the existence of an outright accusation of rape was accepted; the argument centred on the mechanics of auditory perception – whether the accused heard it – rather than its accusatory character. The Court impliedly extended the principle affirming that once a proper accusation is before the jury, no further micro-directions are needed about auditory reception.
Misdirection Threshold
Buchan, Wilson and Campbell underscore that an appellate court only quashes a conviction where (i) there is a misdirection and (ii) that misdirection resulted in a miscarriage of justice. The Court in the present case held both limbs were absent: no misdirection occurred, and in any event the other corroborative evidence was ample.

Legal Reasoning

The Court’s reasoning unfolded in three steps:

“Glimpse of the Obvious” Doctrine
Lord Matthews stressed that telling jurors they must assume the accused heard words before attaching significance to his silence would merely give them a glimpse of the obvious. Jury instructions need not recite every logical step that an ordinary person can infer unaided. Requiring elaborate directions on self-evident propositions risks burdening trials with unnecessary complexity.
Evidence Tailoring
Directions must be tethered to live issues in the evidence, not hypothetical possibilities. Notably, Mr Glass never said he was unable to hear; his stance was that no rape allegation was in fact made, or that shouting prevented him from getting a word in. The judge’s actual instruction – allowing the jury to reject implied admission if they accepted the defence version – perfectly mirrored that evidential dispute.
No Material Prejudice
Even assuming arguendo the direction was desirable, the Court considered whether the alleged omission mattered. Given the multiple other sources of corroboration (DNA paternity evidence, age disparity indicating improbability of consent, mutual corroboration with other charges), any error would have been harmless. This bolstered the conclusion that there was no miscarriage of justice.

Impact of the Decision

The decision sets a pragmatic precedent with several foreseeable effects:

Streamlined Jury Charges: Trial judges can feel confident omitting ultra-fine directions where the matter is patently obvious to a lay jury, thereby shortening summings-up and reducing the risk of juror confusion.
Defence Strategy: Defence counsel alleging misdirection must now grapple with a higher threshold. Unless the direction concerns a non-obvious legal rule, appellate courts are unlikely to intervene.
Sexual Offence Prosecutions: The ruling confirms that silence in the face of a specific allegation can be potent corroboration even outside formal police interview settings, provided the accusatory context is clear.
Development of Scots Evidence Law: By leaning on juror common-sense, the Court implicitly recognises that certain evidential issues require no bespoke judicial exposition. Over-instruction can itself sow confusion; concision is not merely desirable but sometimes mandated by justice.

Complex Concepts Simplified

Implied Admission: When an accused person, confronted with a direct allegation, stays silent or reacts evasively, that silence may be treated as a form of admission that the accusation is true.
Misdirection: An error in the judge’s legal directions to the jury. Not every misdirection quashes a verdict; it must cause a miscarriage of justice.
Adminicle: A piece of circumstantial evidence which, when combined with others, helps to prove a fact (e.g., DNA paternity test acting as an adminicle corroborating rape).
Mutual Corroboration (Moorov Doctrine): Separate offences of a similar character may corroborate each other if sufficiently linked in time, character, and circumstance, allowing conviction on both despite each having only one direct witness.
Libel (in Scottish indictments): The formal statement of charges; nothing to do with defamation.

Conclusion

Glass v HM Advocate cements an important evidential and procedural principle: trial judges are under no obligation to break down every self-evident inference for jurors, particularly where the defence case squarely raises the factual alternative. The Court’s endorsement of juror common-sense aligns with the broader trend towards concise, issue-focused jury directions. For practitioners, the case is a reminder that appellate success on grounds of misdirection now requires demonstrating not only that a direction was theoretically desirable but that its absence created a real risk of injustice in the context of the whole evidence.

In sum, the decision both clarifies and confines the scope of mandatory judicial guidance on implied admissions, marking a modest yet meaningful development in Scots criminal evidence law.