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Appeal against Conviction by RS against His Majesty's Advocate (High Court of Justiciary)
Factual and Procedural Background
The Appellant was tried and convicted after trial on multiple charges involving two complainants (referred to in the trial as Complainer A and Complainer B). Charges included contraventions of sections of the Criminal Justice and Licensing (Scotland) Act 2010, offences under the Sexual Offences (Scotland) Act 2009, indecent assault at common law and offences under the Domestic Abuse (Scotland) Act 2018. The indictment included a two‑paragraph docket presented "in terms of the common law" alleging, among other things, repeated unwanted contact and an incident involving a garden bench. At the close of the Crown case some charges were withdrawn or amended and one paragraph of the docket was deleted. The Crown relied heavily on the Moorov principle and the jury convicted the Appellant. Permission to appeal was granted on a single ground relating to the trial judge's directions about the docket.
Legal Issues Presented
- Whether the trial judge's directions about the common law docket—given using sample directions appropriate to dockets under section 288BA of the Criminal Procedure (Scotland) Act 1995—amounted to a misdirection that created a real risk of miscarriage of justice by encouraging the jury to use the docket evidence as impermissible bad character or corroborative evidence for the sexual charges.
Arguments of the Parties
Appellant's Arguments
- The docket was a common law docket and not specifiable under the statute; it should ideally have been withdrawn because its events were mirrored by evidence led for one of the statutory charges.
- The trial judge misdirected the jury by using Jury Manual sample directions intended for section 288BA dockets, which would have encouraged the jury to use the docket evidence in relation to the sexual offences and risked treating it as bad character evidence or as corroboration.
- There was a realistic possibility a different verdict would have been reached had a correct common law direction been given or had no direction been given about the docket.
Respondent's Arguments
- The advocate depute initially maintained there was no misdirection but later conceded the direction was erroneous; the remaining issue is whether a miscarriage of justice occurred.
- The trial judge had properly directed the jury as to Moorov and differentiated sexual and non‑sexual offences; the evidence contained striking similarities and the case must be considered as a whole.
- Citing authorities such as Sim v HM Advocate [2016] HCJAC 48, 2016 JC 174, and others, the respondent submitted that in context any misdirection was immaterial and did not affect the safety of the convictions.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Moorov | The Moorov principle (corroboration by evidence of similar conduct from different sources) — basis of the Crown case. | The court noted the Crown relied largely on Moorov and that the jury accepted both complainers; Moorov directions were given at trial and the judge explained differences between sexual and non‑sexual offences for Moorov purposes. |
| Sim v HM Advocate [2016] HCJAC 48, 2016 JC 174 | Cited in submissions concerning evaluation of the charge as a whole and contextualising evidence. | Relied on by the respondent to argue that, viewed in context, any misdirection was immaterial. |
| Doherty v HM Advocate [2014] HCJAC 94, 2014 SCL 758 | Authority cited in submissions on whether misdirection led to miscarriage of justice. | Referenced by the respondent as part of authorities supporting refusal of the appeal. |
| MacDougall v HM Advocate [2021] HCJAC 32 | Authority cited in submissions on appellate review of trial directions. | Referenced by the respondent in support of the proposition that any error was of no effect on the verdicts. |
| Nelson v HM Advocate 1994 JC 94 | Describes limits on leading evidence of other crimes and the role of fair notice for common law dockets. | Quoted to explain the nature and permissible scope of common law dockets and when such evidence may suggest bad character. |
| McGartland v HM Advocate [2015] HCJAC 23 | Principle that juries are entitled to a bespoke charge; caution about using sample directions without adaptation. | Used in the postscript to illustrate that jury directions should be tailored and sample directions may need adjustment. |
| HM Advocate v Moynihan [2018] HCJAC 43, 2019 SCCR 61 | Referenced regarding suitability of sample directions fulfilling requirements in sexual offence docket cases. | Mentioned in the postscript to note that sample directions generally suffice for statutory dockets but may require amendment for common law dockets. |
Court's Reasoning and Analysis
The court analysed section 288BA of the 1995 Act, which permits dockets that are specifiable by reference to a sexual offence and that relate to the same event or series of events. It contrasted statutory dockets under section 288BA with common law dockets and cited Nelson v HM Advocate to explain the law on leading evidence of other crimes and the notice required.
The trial judge had used Jury Manual sample directions intended for section 288BA dockets despite the indictment stating the docket was "in terms of the common law." The court found this to be an erroneous direction: the judge framed the docket as if it were specifiable by reference to a sexual offence rather than treating it as a common law matter and adapting the sample directions accordingly.
The court then assessed whether that misdirection produced a miscarriage of justice. It observed that the docket evidence was largely duplicative of other evidence (mirrored by evidence led for one statutory charge), was hardly relied on in speeches, could not serve as Moorov corroboration for Complainer A (who provided the docket evidence), and added no material weight to the Crown's case on the sexual charges. The court characterised any effect of the misdirection as de minimis and concluded it could not have changed the outcome.
Holding and Implications
APPEAL REFUSED
Holding: The court held that, although the trial judge's directions about the docket were erroneous in treating a common law docket as if it fell within section 288BA, that misdirection did not give rise to a miscarriage of justice and the appeal was refused.
Implications: The direct effect is that the convictions stand. The opinion does not establish a new legal precedent changing substantive law; it emphasises the need for trial judges to read indictment papers carefully and to adapt jury directions to common law dockets. The court suggested the Jury Manual Committee might consider providing a sample charge for common law dockets given their increasing use.
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