Appeal against Conviction by CMD against His Majesty's Advocate (High Court of Justiciary)

Factual and Procedural Background

This is an appeal against conviction from a solemn trial in The City. The Appellant was convicted by a jury of three offences of threatening and abusive behaviour and of domestic abuse involving physical and sexual conduct (charges numbered in the trial as 2, 3 and 4). The indictment originally included six further charges: a historic sexual assault allegation (charge 1) and five alleged breaches of special bail conditions (charges 5–9). On the fourth day of the trial the Prosecution withdrew charges 1 and 5–9 and the Trial Judge acquitted the Appellant of those withdrawn charges. The Appellant was subsequently sentenced to concurrent custodial terms in respect of two convictions and admonished on the remaining conviction. The Appellant appealed, arguing that the Trial Judge erred in directing the jury that evidence led in support of the withdrawn charges remained evidence which they could consider insofar as it was relevant to the remaining charges, and that this permitted the jury to consider prejudicial and collateral material.

Legal Issues Presented

1. Whether the Trial Judge was entitled to direct the jury that evidence led in support of charges withdrawn by the Prosecution remained admissible and could be taken into account insofar as the jury considered it relevant to the remaining charges.
2. Whether permitting the jury to consider such evidence created unfair prejudice or an inequality of arms amounting to a miscarriage of justice or a breach of Article 6 ECHR.
3. What standard or direction is required where some evidence relates to withdrawn charges that may also be pleaded for evidential context as to other charges on the indictment.

Arguments of the Parties

Appellant's Arguments

• The evidence led in support of the withdrawn sexual offence (charge 1) and the withdrawn bail‑condition charges (5–9) was collateral and irrelevant to the remaining charges and therefore inadmissible once those charges were withdrawn.
• Allowing the jury to take that evidence into account opened a disproportionate inquiry into matters no longer before the court and afforded the Prosecution an evidential advantage not available to the Appellant, undermining fairness and Article 6 rights.
• The sexual allegation from 2015 was temporally remote and of a different character such that it should have been excluded from the jury's consideration of charges 2–4.

Respondent's Arguments

• Evidence that is indicative of a crime may be libelled for evidential purposes and, where evidence relevant to one charge is also relevant to another, it remains admissible even if the original charge has been withdrawn or resulted in acquittal.
• The evidence gave important context about the nature of the relationship and disclosed an expression of intent (threats of further sexual offending) and similar conduct, all of which were relevant to the domestic abuse offences remaining on the indictment.
• The standard direction given by the Trial Judge was appropriate; the case did not resemble those rare instances requiring tailored directions because, here, the evidence on withdrawn charges was uniformly relevant to the issues in dispute.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began from the established principle that evidence admissible to prove one charge may also be relevant to another charge and does not thereby become inadmissible because the first charge is withdrawn or results in an acquittal. The judge emphasised that the relevance inquiry is governed by a common‑sense test: whether the evidence has a reasonably direct bearing on the matter under investigation.

Applying that test to the present material, the court concluded that the evidence led in support of the withdrawn historic sexual assault and the withdrawn bail‑breach allegations was capable of being viewed by the jury as relevant to the remaining domestic abuse and sexual conduct allegations. The court identified specific connections in the evidence: the historic sexual assault involved similar restraining conduct (grabbing the complainant's arm) and an expressed threat of future sexual assault which the Appellant later carried out in the period libelled in the surviving charge; the bail‑breach evidence demonstrated a pattern of controlling and obsessive unwanted contact consistent with the Crown's case of ongoing domestic abuse. The court held that such similar‑fact and contextual circumstantial evidence was probative rather than unduly prejudicial.

The court further held that the succinct standard direction given by the Trial Judge — that evidence led in respect of withdrawn charges remains evidence which the jury can take into account insofar as they consider it relevant to the remaining charges — was appropriate in the circumstances. The court distinguished cases requiring more detailed direction (such as AX) where parts of the withdrawn‑charge evidence were irrelevant to the issues in dispute; no comparable segmentation of relevance existed here. Finally, the court rejected a late‑raised Article 6 ECHR argument on procedural grounds (failure to comply with rules on the content of the note of appeal) and on the merits, holding that the adequacy of directions was a domestic law matter and no compatibility issue arose.

Holding and Implications

Decision: The appeal is refused; the convictions and sentences are upheld.

Implications: The direct effect is that the Appellant's convictions and sentences remain in force. The court affirmed that the standard, succinct direction permitting the jury to treat evidence led in support of withdrawn charges as available for consideration in relation to remaining charges is generally appropriate where the evidence is capable of having a reasonably direct bearing on those charges. The opinion emphasises that unusual cases may require more tailored directions, but no new evidential rule was created.