Withdrawn Charges: Standard Jury Direction Suffices Where Evidence Remains Relevant to Live Charges

1. Introduction

In Appeal against Conviction by CMD against His Majesty's Advocate [2026] HCJAC 20, the Appeal Court of the High Court of Justiciary considered the adequacy of the standard jury direction given when the Crown withdraws certain charges mid-trial but evidence relating to those charges has already been led.

The appellant was convicted of (i) threatening or abusive behaviour contrary to section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010, (ii) a course of domestic abuse contrary to section 1 of the Domestic Abuse (Scotland) Act 2018 (including a vaginal rape allegation), and (iii) a further section 38(1) charge involving a second complainer. At the close of the Crown case, the Crown withdrew (a) an anal rape charge and (b) several charges alleging breaches of bail conditions; the trial judge formally acquitted the appellant of those withdrawn charges.

The central issue on appeal was whether the trial judge erred by instructing the jury that they could still consider evidence led on the withdrawn charges “insofar as [they] consider it relevant” to the remaining charges—rather than directing the jury to ignore that evidence entirely.

2. Summary of the Judgment

The court refused the appeal. It held that:

  • Evidence led in support of withdrawn (or acquitted) charges remains available for the jury’s consideration on live charges if it is capable of being relevant to them.
  • Relevance is a common-sense question: whether the evidence has a “reasonably direct bearing” on the matter under investigation.
  • On the facts, both (i) the evidence of the alleged anal rape and accompanying threat and (ii) the evidence about alleged bail breaches were potentially relevant to the domestic abuse charge and its context, and the former was also relevant as similar-fact circumstantial evidence bearing on the later vaginal rape allegation.
  • The standard direction used in solemn trials was therefore “entirely apt and appropriate”; this was not one of the unusual cases requiring tailored directions (contrast AX v HM Advocate [2024] HCJAC 12; 2024 JC 273).
  • No Article 6 issue arose; in any event it had been raised late and not in conformity with procedural requirements.

3. Analysis

3.1 Precedents Cited

(a) Evidence from acquitted/withdrawn charges can remain usable: Mair and Fisher

The court anchored its reasoning in the established proposition that evidence led for one charge may also be relevant to another charge on the same indictment, and it does not become “incompetent or inadmissible” merely because the accused is acquitted of (or a charge is withdrawn from) the charge to which that evidence was originally directed. This approach was treated as “commonplace”:

  • HM Advocate v Mair [2013] HCJAC 89; 2014 JC 137 (also cited in the opinion as HM Advocate v Mair [2013] HCJAC 39; 2014 JC 137): evidence for one charge may have relevance to another, and the standard direction is routinely used in solemn trials.
  • Fisher v HM Advocate [2022] HCJAC 43; 2023 JC 21: evidence relating to an offence of which an accused has been acquitted does not, for that reason alone, become inadmissible in relation to other charges.

(b) “Evidential charges” and fair notice

The Crown relied on authority recognising that prosecutors may libel charges for a “purely evidential purpose” where the evidence is relevant to other live charges and where fair notice considerations arise if conduct indicative of a crime is to be explored at trial:

  • Lauchlan and O'Neill v HM Advocate (No 2) [2014] HCJAC 62, citing Griffen v HM Advocate 1940 JC 1; HM Advocate v Monson (1893) 21 R (J) 5; McIntosh v HM Advocate 1986 JC 169; Danskin v HM Advocate 2002 SLT 889; and Mair.

While the 2026 appeal did not turn on whether libelling the withdrawn charges was proper, the cited line of authority framed the wider context: withdrawal does not automatically purge the evidential record of material that can still rationally bear on the remaining issues.

(c) The modern relevance test: “reasonably direct bearing”

The court applied a general relevance test, expressed as a matter of common sense:

  • W Alexander & Sons Ltd v Dundee Corporation 1950 SC 123 (at 131): a classic formulation that relevance depends on whether evidence bears reasonably directly on the matter under inquiry.
  • Daly & Keir v HM Advocate [2025] UKSC 38; 2025 SLT 1253 (at [38]): reaffirming the “reasonably direct bearing” test, deployed here to structure the only real question—whether the withdrawn-charge evidence was capable of being relevant.

(d) Similar fact evidence

The court treated the 2015 allegation (and surrounding circumstances) as capable of amounting to similar-fact circumstantial evidence, bearing on the later sexual allegation within the domestic abuse charge:

  • Fraser v HM Advocate [2013] HCJAC 117; 2014 JC 115 (at [49]): similar fact evidence is often relevant to proof of guilt.

(e) When tailored directions are required: AX

The appellant relied on AX v HM Advocate [2024] HCJAC 12; 2024 JC 273. The court accepted that AX exemplifies an “unusual” situation where some evidence linked to withdrawn charges is relevant to a live issue while other parts are obviously not, such that jurors require more specific guidance. The court distinguished AX because, on its assessment, all the withdrawn-charge evidence here was potentially relevant to issues in the remaining charges.

3.2 Legal Reasoning

(a) The standard direction is normally sufficient

The court endorsed the conventional approach in solemn trials: after withdrawal/acquittal on some charges, jurors may still consider the evidence led on those charges to the extent they regard it as relevant to the charges they must decide. This preserves the jury’s function to evaluate relevance and weight, and avoids over-complication by the court attempting to micromanage the evidential landscape.

(b) Application to the sexual allegation evidence

The crucial move in the court’s reasoning was to characterise the 2015 evidence not as collateral propensity material, but as evidence capable of bearing directly on the live domestic abuse narrative and on the specific sexual allegation within charge 3:

  • The Crown case portrayed a sustained pattern of coercive, controlling and violent domestic abuse. A prior sexual assault within the same relationship could rationally inform that narrative and context.
  • The complainer’s evidence included a threat following the 2015 incident. The court treated the later allegation (in 2022) as capable of being seen as carrying through that threat, strengthening the inferential link.
  • The court emphasised similarity of conduct (notably, physical restraint by grabbing the arm), treating that similarity as supporting relevance and leaving its weight—including the time gap—to the jury.

On this analysis, it would have been “artificial and unrealistic” to deem the 2015 allegation irrelevant to the 2018 Act course-of-conduct charge that included a 2022 rape allegation.

(c) Application to bail-breach evidence

The court also held that evidence about contact in alleged breach of bail conditions was capable of supporting the Crown’s case that the appellant engaged in obsessive, unwanted and controlling conduct towards the complainer—conduct closely aligned with the controlling behaviours libelled in the domestic abuse charge. Again, relevance was for the jury to assess, and the standard direction properly left that judgment to them.

(d) Fair trial and Article 6

The appellant argued that permitting use of withdrawn-charge evidence created unfair “inequality of arms” and breached Article 6. The court rejected this on two levels:

  • Procedurally, the Article 6 point was raised late and not in the note of appeal as required by rule 40.2(4) of the Act of Adjournal (Criminal Procedure Rules) 1996 (as amended), with no attempt to show cause.
  • Substantively, the court considered the issue to be resolved by domestic evidential principles; where evidence is relevant, its admission and use do not inherently create unfairness.

3.3 Impact

The decision consolidates a practical and prosecution-significant rule in Scottish criminal procedure:

  • Default position: in solemn trials, the standard direction remains appropriate where evidence led on withdrawn charges is capable of being relevant to remaining charges.
  • Focus of appellate scrutiny: the real question is not whether the direction was “too short” but whether the withdrawn-charge evidence had a “reasonably direct bearing” on live issues; if it did, the jury may consider it and assign it weight.
  • AX confined: tailored directions are exceptional—required where the evidential bundle from withdrawn charges contains both (i) some material relevant to a live issue and (ii) other material plainly irrelevant, risking juror misuse absent specific judicial guidance.
  • Domestic abuse prosecutions: the court’s approach supports the use of wider relationship evidence—especially where earlier episodes illuminate coercive control, threats, escalation, or distinctive similarities in conduct.

4. Complex Concepts Simplified

  • Withdrawn charge: a charge the Crown chooses not to pursue; the judge then acquits the accused of that charge. The evidence already heard does not automatically vanish from the trial record.
  • Relevance (“reasonably direct bearing”): evidence is relevant if it can sensibly help prove (or disprove) something that matters for deciding the remaining charges—more than a vague connection, but not requiring it to be decisive.
  • Similar fact evidence: evidence of other misconduct that is not admitted merely to show “bad character”, but because the similarities (or other connections) can support an inference bearing on whether the accused committed the offence charged.
  • Standard direction on withdrawn charges: a short instruction telling jurors they may use the earlier evidence only so far as they think it is relevant to what remains for decision; it is then for jurors to decide relevance and weight.
  • Course of behaviour (Domestic Abuse (Scotland) Act 2018): the offence focuses on a pattern of abusive conduct, so contextual evidence about the relationship can be particularly significant to whether there was a course of behaviour and its likely impact.

5. Conclusion

[2026] HCJAC 20 reaffirms that, in Scottish solemn procedure, evidence led on charges later withdrawn may still be considered by the jury on the remaining charges where it is capable of having a “reasonably direct bearing” on them. The standard, succinct jury direction will ordinarily be sufficient; only in atypical cases—exemplified by AX v HM Advocate [2024] HCJAC 12; 2024 JC 273—will more tailored guidance be required to prevent jurors from relying on plainly irrelevant material.