Summary of Appeal Court, High Court of Justiciary — [2025] HCJAC 43

Citation: [2025] HCJAC 43; HCA/2024/000306/XC

Date: 11 September 2025

Panel: A multi-judge panel (including Judge Matthews and Judge Armstrong); opinion delivered by Judge Matthews.

Parties: Appellant v Respondent

Representation: Appellant — Attorney Brown; Company A, The City. Respondent — Attorney Dickson; Company B.

Factual and Procedural Background

Following a trial the Appellant was convicted on ten counts arising from allegations by three separate complainers (referred to in the record by the letters L, S and C). The charges, as set out in the indictment, included threats, abduction, assaults, behaviour contrary to section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010, the taking of an intimate photograph contrary to section 9(1) and (4) of the Sexual Offences (Scotland) Act 2009, and rape contrary to section 1 of that Act. The indictment also contained a docket with six paragraphs; two of those paragraphs (i) and (ii) narrated respectively: (i) controlling and intimidating conduct towards Complainant L in 2004 (including control of contraception and accusations of unfaithfulness); and (ii) an allegation that the Appellant penetrated Complainant C's vagina with a lollipop-shaped object without consent in The City in September 2017.

The jury acquitted the Appellant on two of the charges: charge 4 (a sexual charge involving Complainant L) and charge 12 (a rape alleged to have been committed against Complainant C). On 13 June 2024 the Appellant was sentenced to an extended sentence of 8 years, the custodial term being 6 years; that sentence was not the subject of the present appeal.

Leave to appeal was granted on a single ground: that the trial judge did not properly instruct the jury as to the requirements of mutual corroboration.

Legal Issues Presented

1. Whether the trial judge's directions on the doctrine of mutual corroboration were adequate, in particular whether the jury were properly instructed about the limits on using non-sexual evidence to corroborate sexual allegations (as articulated in the authority relied on by the parties).
2. Whether, in light of any alleged misdirection, the convictions on the sexual charges complained of (in particular those identified in the appeal as charges 8 and 9) were safe or amounted to a miscarriage of justice.

Arguments of the Parties

Appellant's Arguments

• The judge's initial directions did not expressly apply the principle (from the authority relied on by the parties) that evidence of non-sexual conduct cannot be used to corroborate sexual allegations across complainers. That omission was material.
• It was a misdirection to suggest that non-sexual charges which contain "a sexual element or sexual character" could be used as corroboration without first applying the similarity test (similarity of time, character and circumstances) and considering whether the sexual offences formed part of a single, systematically pursued course of conduct.
• The only material evidence that could have corroborated the sexual allegations in charges 8 and 9 came from charge 10 and paragraph (ii) of the docket (both relating to Complainant C). The conduct narrated in those sources was, on the Appellant's case, not sufficiently similar (for example, an intimate photograph versus penetration with an object) to satisfy the similarity test.
• Because the jury acquitted on another rape charge involving Complainant C, it was unlikely they accepted paragraph (ii) as corroborative of the contested sexual charges; therefore there was a real possibility that the convictions on charges 8 and 9 rested on an incorrect basis and amounted to miscarriages of justice.
• In oral submissions before the Appeal Court counsel for the Appellant accepted that, if the jury had been properly directed, it would have been open to them to treat the sexual averment in charge 10 as potential corroboration for charges 8 and 9 — but that admission was contingent on a proper direction having been given.

Respondent's Arguments

• The appeal should be refused. The trial judge properly instructed the jury on mutual corroboration and grouped the charges sensibly by the conduct alleged (threatening behaviour, assaults, abduction, voyeuristic-type conduct and rape).
• Although it is accepted that the judge did not give a perfectly framed direction based on the cited authority, there was a significant sexual element in charge 10 and in paragraph (ii) of the docket.
• The jury's acquittal on charge 4 indicates that they followed the judge's directions and returned a discriminating verdict; this undercuts the argument that they proceeded on an improper basis.

Table of Precedents Cited

Court's Reasoning and Analysis

The court's analysis proceeded in a sequence focused on two interlinked points: (i) the proper legal content of the doctrine of mutual corroboration and the specific limitation arising from the cited authority; and (ii) the manner in which the trial judge's directions, read as a whole, engaged with those legal requirements.

First, the court reiterated the established approach that a jury charge must be read as a whole and not dismembered by selecting isolated sentences or phrases. The trial judge had given full, standard directions on mutual corroboration at the outset, explaining that the doctrine can apply where separate offences are so closely linked by character, circumstances and time that they form parts of a single course of criminal conduct systematically pursued by the accused. The jury were told that the "underlying similarity of the conduct" described by witnesses is what must be considered when deciding whether the doctrine applies.

Second, while the further directions initially lacked an express statement of the limitation from the cited authority (that non-sexual evidence cannot be used to corroborate sexual allegations in the manner forbidden), the trial judge supplemented his directions after the advocate depute and senior counsel raised the point. In the course of those further directions the judge reminded the jury that he had explained the doctrine in some detail, and, in response to a specific clarification from the advocate depute, told the jury that the Crown was not suggesting that an entirely non-sexual charge could corroborate a sexual charge because of the different character of the conduct. The judge gave an example, explaining that a basic assault could not corroborate a charge of rape but that a 'sexual aspect' in other conduct might, depending on the jury's collective assessment.

Third, the court placed weight on the practical reinforcement of the similarity test in the judge's answer to a jury question about charge 2 (an abduction allegation concerning retention of keys). The judge told the jury that mere mention of keys did not in itself provide corroboration and reminded them of the necessity for links in character, circumstances and time. The court treated this answer as an instance of the judge reiterating the fundamental test of similarity in a factual context, reinforcing the initial directions.

Fourth, the Appeal Court accepted the concession made by the Appellant's counsel before the court that there was sufficient evidence relating to the sexual activity set out in charge 10 and in paragraph (ii) of the docket to permit the jury to find that such evidence could corroborate the evidence on charges 8 and 9. The court emphasised that there is no rule preventing less serious conduct from corroborating more serious conduct in principle; the critical question is whether the similarity test and the doctrine's other requirements are satisfied.

Taking these points together — the initial comprehensive directions on mutual corroboration, the later clarifying exchange (including the Crown's concession and the judge's clarification that entirely non-sexual offences could not be used to corroborate sexual offences), and the judge's practical reinforcement when answering a jury question — the court concluded that the jury had been properly directed about mutual corroboration as a whole. Because there was sufficient evidence to permit the jury to find corroboration for the contested sexual counts, and because the charge as a whole addressed the doctrinal limits relied upon by the parties, the court held that the appeal had no merit.

Holding and Implications

APPEAL REFUSED

Holding: The Appeal Court refused the Appellant's appeal against conviction. The court concluded that, when read as a whole, the trial judge's directions adequately addressed the requirements of mutual corroboration and the limits identified in the cited authority.

Implications: The direct consequence is that the convictions challenged in the appeal (including the contested sexual offences identified in the grounds) stand and the previously imposed extended sentence (8 years, with a 6-year custodial term) remains unaffected by this appeal. The court did not purport to establish a new principle of law; it applied existing authorities and concluded that the trial judge's charge, taken in its entirety, was sufficient.

Note: This summary has been prepared from the opinion provided. It reproduces only the facts, submissions, authorities and reasoning contained in that opinion; no additional facts or inferences have been introduced.