NOTE OF APPEAL AGAINST CONVICTION BY CLARK THOMSON AGAINST HMA

Factual and Procedural Background

The appellant was tried at the High Court in Paisley on multiple charges relating to domestic abuse and sexual offences against four former domestic partners over a period spanning two decades. The Crown withdrew several breach of the peace and domestic abuse charges, leaving the appellant to face serious charges of rape under the Sexual Offences (Scotland) Act 2009. The appellant pled guilty to one charge of simple assault but was found guilty by a unanimous jury on the remaining charges, including multiple counts of rape. The trial involved extensive testimony from the complainers and the appellant, with a notable absence of any application under section 275 of the Criminal Procedure (Scotland) Act 1995 regarding questioning about the complainers' sexual history or character. The appellant raised two grounds of appeal: whether the trial judge failed to direct the jury correctly on the issue of honest or reasonable belief in consent, and whether the conduct of the Advocate depute in cross-examination denied the appellant a fair trial.

Legal Issues Presented

1. Whether the trial judge erred in failing to give appropriate directions to the jury on the appellant's honest or reasonable belief in the complainers' consent to sexual intercourse.
2. Whether the conduct of the Advocate depute during cross-examination deprived the appellant of a fair trial.
3. The broader issue concerning the scope and relevance of questioning complainers in rape cases, including the application of sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995.

Arguments of the Parties

Appellant's Arguments

• The trial judge failed to properly instruct the jury on the possibility that the appellant had an honest or reasonable belief in the complainers' consent, which was a live issue based on the evidence.
• The Advocate depute's cross-examination went beyond proper questioning and amounted to character assassination, expressing personal opinions and unfairly prejudicing the jury against the appellant without a formal application under section 266(4)(a) of the 1995 Act.
• The Advocate depute's conduct overwhelmed the appellant, causing him to "zone out" and impairing his ability to give his best evidence, thereby rendering the conviction unsafe.
• The appellant relied on case law establishing that lack of honest or reasonable belief is an essential element of rape, and where it is a live issue, the jury must be directed accordingly.

Respondent's Arguments

• No defence of honest or reasonable belief was raised on the evidence, so no direction on this issue was required from the trial judge.
• The evidence showed a direct conflict between the complainers' accounts of non-consent and the appellant's claim of active consent; no middle ground of reasonable belief was supported by the evidence.
• The Advocate depute's questioning was proper, focusing on evidence of abusive conduct that had been libelled, and did not require a section 266 application.
• No objection was taken during trial to the Advocate depute's conduct, which constitutes waiver under the 1995 Act, and the trial judge found no impropriety in the cross-examination or speech.
• The appellant failed to demonstrate any departure from good and proper practice that would amount to a miscarriage of justice.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully examined the evidence and procedural history, focusing on whether the issue of honest or reasonable belief in consent was properly before the jury. It was noted that the appellant had removed references to reasonable belief from his special defences prior to trial, and no application was made to reintroduce it. The evidence showed a clear conflict between the complainers' accounts of non-consent and the appellant's claim of active consent without any middle ground suggesting a genuine or reasonable mistake. Accordingly, the trial judge was correct in directing the jury that the issue of reasonable belief did not arise.

Regarding the Advocate depute's conduct, the court acknowledged the appellant's complaints of oppressive and prejudicial questioning. However, it found that the questioning related to evidence already libelled and that the appellant had impugned the complainers' character as well. No timely objection was made during trial, constituting waiver under the Criminal Procedure (Scotland) Act 1995. The trial judge's observations, given considerable weight on appeal, found no impropriety or oppressive conduct. The appellant's assertion of being overwhelmed was unsupported by the record.

The court also expressed concern about the breadth and relevance of evidence adduced, noting that much questioning concerned peripheral matters not directly related to the charges before the High Court. It emphasized the importance of adhering to statutory provisions limiting questioning in sexual offence cases and recommended that section 275 applications be sought in advance to manage evidential scope and jury inferences.

Ultimately, the court concluded that the appellant's grounds of appeal lacked merit both substantively and procedurally.

Holding and Implications

The appeal is REFUSED.

The court upheld the convictions, finding no error in the trial judge's directions regarding honest or reasonable belief and no unfairness arising from the Advocate depute's conduct. The decision maintains the established principles governing jury directions on consent and prosecutorial conduct in sexual offence trials. No new precedent was established, and the ruling affirms the importance of procedural safeguards including timely objections and adherence to statutory evidential limits. The direct effect is the confirmation of the appellant's convictions and sentences as imposed by the trial court.