Appeal by Ryan McConville against HMA (High Court of Justiciary)

Factual and Procedural Background

The Appellant was convicted of rape under Section 2 of the Sexual Offences (Scotland) Act 2009 on 2 May 2024 at the High Court of Justiciary in Edinburgh. The Appellant appealed against conviction on the basis that no reasonable jury would have convicted him, given that some hours prior to the verdict the jury had asked the judge questions which, it was submitted, suggested an acquittal verdict was to follow.

At trial, it was agreed that the Appellant had penetrated the complainer, but the Appellant maintained the intercourse was consensual. The jury heard evidence from seven witnesses, including the complainer and the Appellant. It was undisputed that there was sufficient evidence to support a guilty verdict.

During deliberations, the jury submitted two hypothetical questions to the judge concerning the outcome of verdicts where different numbers of jurors supported guilty, not guilty, or not proven verdicts. The trial judge interpreted these questions as indicating that the jury had effectively reached an acquittal verdict, as only seven jurors favoured guilt, and gave additional directions explaining the necessity of an absolute majority of at least eight jurors for a guilty verdict and the nature of acquittal verdicts. Following these directions, the jury returned a majority guilty verdict.

The trial judge later acknowledged that he had misinterpreted the hypothetical nature of the jury's questions and that his additional directions were based on an incorrect assumption that the jury had already reached a concluded view.

Legal Issues Presented

1. Whether the trial judge’s directions to the jury, premised on a misinterpretation of the jury’s hypothetical questions, resulted in a miscarriage of justice.
2. Whether the jury’s majority guilty verdict was one that no reasonable jury, properly directed, could have returned.

Arguments of the Parties

Appellant's Arguments

• The jury’s questions indicated that eight jurors were in favour of acquittal and seven in favour of conviction, meaning the jury had effectively decided to acquit before the judge’s additional directions.
• The additional directions given by the judge confined the jury’s deliberations to the form of acquittal verdict, thus it was reasonable to expect the jury would acquit.
• The jury’s failure to follow these directions was unreasonable and amounted to a miscarriage of justice.
• Although the Appellant accepted the questions were hypothetical and the final verdict was the jury’s intended one, there was a misapprehension caused by how the questions were presented, undermining the fairness of the trial.

Respondent's Arguments

• There was no miscarriage of justice as the jury’s questions were hypothetical and did not indicate a concluded decision.
• The jury had been properly directed that a guilty verdict required at least eight jurors in favour.
• The trial judge’s additional directions were irrelevant because no final verdict had been reached when the questions were asked.
• The jury were entitled to continue deliberations and ultimately returned a verdict consistent with their intention.
• The verdict was delivered without dissent and the jury signified assent in the usual manner, negating any suggestion of unfairness.

Table of Precedents Cited

Court's Reasoning and Analysis

The court acknowledged the trial judge’s honest and full admission of error in misinterpreting the jury’s hypothetical questions as indicating a concluded view. The questions were hypothetical and did not justify any inference that a final decision had been made. Consequently, the judge’s additional directions that the jury was bound to return an acquittal verdict were based on an erroneous factual assumption and amounted to a misdirection.

The court noted good practice would involve reading jury questions aloud in court to avoid misinterpretations, which did not occur here. The direction that a guilty verdict requires at least eight jurors was correct and necessary, consistent with established authority. However, the direction that the jury must return an acquittal verdict was a misdirection.

Importantly, the court applied the principle from Geddes v HMA that the reasonableness of a verdict must be assessed assuming the jury was properly directed. Since the jury was not properly directed regarding the acquittal verdict, the failure to follow this misdirection does not render the verdict unreasonable.

Upon reviewing the entire record, the court concluded that a properly directed reasonable jury could have returned the verdict of guilt reached by the jury in this case.

Holding and Implications

The court REFUSED THE APPEAL.

The effect of this decision is that the conviction stands. The court found no miscarriage of justice arising from the trial judge’s misdirection, given that the jury’s verdict was one a reasonable jury, properly directed, could have returned. No new legal precedent was established, and the ruling reaffirms existing principles regarding jury directions and the assessment of verdict reasonableness.