Structured and Anonymized Summary of Opinion

Factual and Procedural Background

This is an appeal against conviction heard by the Appeal Court, High Court of Justiciary. The opinion was delivered by Judge [Beckett] sitting with Judge [Armstrong] and Judge [Ericht]. The Appellant was convicted after a High Court trial of three sexual offence charges relating to two different complainers and was acquitted on two other charges. The convictions sustained by the jury were libelled as charges 1, 3 and 4 in the indictment; charges 2 and 6 resulted in acquittal.

At trial the Crown advanced two potential "routes to verdict" for the charges involving each complainer: (a) mutual corroboration between the complainers' evidence; and (b) corroboration by circumstantial evidence in the form of observed distress and/or a statement de recenti made by a complainer and spoken to by a third-party witness. The Appellant appealed against conviction on grounds of misdirection, contending that the trial judge erred in directing the jury that distress or a de recenti statement could serve as corroboration for some charges and that this misdirection may have occasioned a miscarriage of justice.

Legal Issues Presented

1. Whether the trial judge misdirected the jury by treating evidence of observed distress (and statements de recenti) as capable of providing corroboration for the complainers' accounts on the charges in issue.
2. If a misdirection occurred, whether that misdirection amounted to a miscarriage of justice such that the convictions on charges 1, 3 and 4 must be quashed.
3. Whether, on the whole facts and circumstances (including the trial judge's report and the pattern of the evidence), the jury must have relied on mutual corroboration rather than any inadmissible or unavailable form of corroboration.

Arguments of the Parties

Appellant's Arguments

• The trial judge misdirected the jury by making available a route to verdict based on corroboration from distress or statements de recenti for charges on which such corroboration was not capable of being established, in particular charges 3 and 4 where the observed distress occurred decades after the alleged offending.
• On charge 1 the judge failed to clarify that distress observed at a later time would not be corroborative; the temporal connection required to render distress corroborative was not properly explained.
• Because it is not certain that the jury relied exclusively on mutual corroboration, the admitted misdirections may have contributed to a miscarriage of justice; therefore the convictions cannot safely stand unless it can be affirmed that the jury must have found mutual corroboration.

Respondent's Arguments (The Crown)

• The Crown accepted that, following the court's decision in McGuinness, the trial judge misdirected the jury by suggesting DD's evidence could corroborate BB's evidence as to charges 3 and 4, because the distress was exhibited many years after the events. Nevertheless, the Crown argued there was no miscarriage of justice.
• The Crown submitted it was open on the evidence for the jury to treat witness evidence of observed distress and the de recenti statement to be contemporaneous (in particular as to charge 1), and that the jury were likely to have reached their verdicts on the basis of mutual corroboration in relation to the convictions sustained.
• The Crown relied on the overall pattern of the evidence (overlap of timing, family connections, same locations, offering money for sex, occasions when the appellant was drinking, and the particularly compelling fact that one complainant was allegedly abused while babysitting at the other complainant's home) to show that mutual corroboration was the most probable route to verdict and that any misdirection did not occasion a miscarriage of justice.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
McGuinness v HM Advocate [2025] HCJAC 13; 2025 JC 249	Clarification of when evidence of a complainer's distress can or cannot provide corroboration; guidance that such distress may be corroborative in some circumstances and not in others.	The trial judge accepted that, in light of McGuinness, he had misdirected the jury on the availability of distress as corroboration for charges 3 and 4. The court agreed with the legal proposition from McGuinness that evidence of distress is circumstantial and may sometimes be corroborative and sometimes not.
CA v HM Advocate [2024] HCJAC 29; 2024 JC 389	Example where the court affirmed that the jury had accepted each complainer's evidence and found mutual corroboration where speeches focused on mutual corroboration.	Cited by the Appellant to argue that, where speeches focus on mutual corroboration, the appellate court can affirm mutual corroboration; the Respondent countered that CA was distinguishable.
MacDougall v HM Advocate [2021] HCJAC 32	Material misdirection does not automatically amount to a miscarriage of justice; the court must consider the whole circumstances.	The court relied on MacDougall (and cited it) in support of the proposition that not every material misdirection leads to a miscarriage of justice and that an overall assessment of the case is required.
CH v HM Advocate [2016] HCJAC 4	Requirement for a discernible route to verdict; the appellate court must be satisfied there is a route to verdict consistent with the verdict returned.	The court referenced CH for the requirement that there be a discernible route to verdict and applied that standard when assessing whether mutual corroboration provided such a route.
McInnes v HM Advocate [2010] UKSC 7; 2010 SC (UKSC) 28	The "real possibility of a different verdict" test applies primarily to Convention-rights-based appeals (Article 6) and not to every criminal appeal; distinguishes tests for miscarriage of justice.	The court explained that the McInnes test applies only in certain Convention-rights cases and that the correct statutory test for miscarriage of justice under s 106(3) of the Criminal Procedure (Scotland) Act 1995 is applied by taking an overall view of the circumstances.
Brodie v HM Advocate [2012] HCJAC 147; 2013 JC 142	Support for taking an "overall view of the circumstances" when determining whether a miscarriage of justice has occurred.	The court cited Brodie as authority for the proposition that the appellate court should take an overall view of the case when considering whether a misdirection resulted in a miscarriage of justice.
Geddes v HM Advocate [2015] HCJAC 10; 2015 JC 229	Guidance that appeals (other than Convention-rights breaches) are to be decided by the court's collective experience and overall view; explanatory passage quoted regarding approach.	The court relied on Geddes to frame its approach to the appeal and quoted Geddes approvingly regarding the collective knowledge and experience of the court in taking an overall view.
Begg v HM Advocate; Fox v HM Advocate; McDonald v HM Advocate; PGT v HM Advocate	Authorities cited for the proposition that juries may properly have regard to all the evidence when assessing the credibility and reliability of disputed witness evidence (including circumstantial evidence).	These authorities were cited (in a quotation drawn from McGuinness) to support the proposition that evidence of a complainer's distress, even if not corroborative, may still be material to the jury's assessment of credibility and reliability.
Stalley v HM Advocate [2022] HCJAC 12; 2022 JC 121	Illustration where an appellate court inferred that jury must have found mutual corroboration from the pattern of evidence and directions, such that other misdirections did not occasion a miscarriage of justice.	The court relied on Stalley as supporting authority for the proposition that, where the overall picture makes mutual corroboration the inevitable or overwhelmingly likely route to verdict, a separate misdirection may not require quashing of convictions.
JH v HM Advocate [2024] HCJAC 10; 2024 JC 300	Referenced as supporting material in the line of authorities dealing with corroboration and appellate assessment of misdirections.	Cited by the Crown in argument; the court listed it among cases supporting the conclusion that a discernible route to verdict was present.
Beveridge v HM Advocate [2025] HCJAC 23	Example where it was held that an inference from delivered verdicts and directions supported the view that misdirections did not cause a miscarriage of justice because mutual corroboration was established.	The court discussed Beveridge as an example of a case where necessary inference of mutual corroboration justified upholding convictions despite misdirections; used to frame analysis but not to create a blanket rule.
Docherty v HM Advocate [2014] HCJAC 94; 2014 SCL 758 (referenced)	Referenced in MacDougall on the proposition that not every material misdirection occasions a miscarriage of justice.	Mentioned by the court as part of the line of authorities indicating that the presence of a material misdirection does not inevitably require quashing of convictions.

Court's Reasoning and Analysis

The court conducted a step-by-step assessment limited strictly to the materials and submissions before it. Key elements of that analysis were:

1. Acknowledgement of misdirection:
   • The trial judge accepted (and the Crown accepted) that, following McGuinness, he erred in directing the jury that evidence of distress exhibited many years after the alleged events (DD's evidence regarding Complainant B) could provide corroboration for charges 3 and 4. The appellate court accepted that concession as correct law.
2. Distinguishing admissibility versus corroborative value:
   • The court emphasised the legal position that evidence of distress is circumstantial and may be corroborative in some circumstances and not in others. Even where it is not available as corroboration it can still be admissible and may be regarded by the jury in assessing the credibility and reliability of a complainer's account. The court quoted relevant authority to that effect and agreed with the proposition as representing the law.
3. Assessment of the routes to verdict the jury could have taken:
   • The Advocate Depute at trial had expressly advanced two routes to verdict for each complainer: mutual corroboration and corroboration by distress/de recenti statements. The court examined the entirety of the trial evidence, the speeches, the judge's charge and the trial judge's post-trial report to determine which route the jury most probably followed.
4. Consideration of the strength and pattern of the evidence:
   • The court identified multiple striking commonalities the jury could rely upon for mutual corroboration: overlapping time periods; family relationships between the appellant and the complainers (one was the appellant's spouse, the other a relative's daughter); many of the alleged offences occurring at the appellant's home (Address 2); evidence that the appellant offered money to both complainers in the context of sex; and evidence that many incidents occurred when the appellant had been drinking.
   • The court highlighted a particularly compelling feature supporting mutual corroboration: an incident of abuse alleged by Complainant B (charge 4) was said to have occurred while she was babysitting at the home of Complainant A (Address 2), a place where Complainant A alleged the appellant had raped her. The overlap in location and circumstances was regarded as highly persuasive in the context of mutual corroboration.
5. Weight given to the trial judge's report:
   • The court placed considerable weight on the trial judge's contemporaneous report and his impression that mutual corroboration was the "clear and obvious" route to verdict for the charges of conviction. The trial judge also described the evidence of Witness C as confusing and of little persuasive force, which the appellate court treated as supporting the view that the jury were unlikely to have relied upon that witness to establish corroboration by distress for charge 1.
6. Overall evaluative conclusion:
   • Taking an overall view, the appellate court concluded that although there was an admitted misdirection about distress as corroboration for charges 3 and 4, the combined effect of the evidence, the prosecution's speeches, the judge's directions (including cautionary remarks), the trial judge's report and the particularly compelling factual links pointed strongly to the jury having convicted on the basis of mutual corroboration.
   • The court rejected the appellant's submission that uncertainty as to which route the jury followed inevitably meant a miscarriage of justice. Instead the court applied the established approach of assessing the entire circumstances to determine whether a miscarriage of justice can be seen to have occurred and concluded it could not.

Holding and Implications

APPEAL REFUSED

Holding:

• The court held that, notwithstanding the conceded misdirection about the availability of distress as corroboration for charges 3 and 4, there was no miscarriage of justice. The appellate court concluded that the jury must have relied on mutual corroboration as the route to verdict for the convictions on charges 1, 3 and 4.

Implications:

• The direct consequence is that the convictions for charges 1, 3 and 4 are upheld and the appeal is refused.
• The court did not purport to establish any novel legal principle beyond the proper application of existing authorities: it reiterated existing law that evidence of distress is circumstantial and may sometimes be corroborative and sometimes not, and that evidence which is not corroborative may nevertheless be material to a jury's assessment of credibility. The decision turns on the application of established principles to the facts of this case rather than the creation of new precedent.

Sources and Limitations

This summary is prepared exclusively from the text of the opinion provided. All parties, witnesses, addresses and other identifying details have been systematically replaced with anonymized placeholders. No information has been added or inferred beyond what is present in the provided opinion. If any section of the original opinion supplied no detail beyond what is summarized here, that limitation is reflected in the content above.