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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2025] HCJAC 1
HCA/2023/624/XC
Lord Justice General
Lord Matthews
Lord Beckett
OPINION OF THE COURT
delivered by LORD MATTHEWS
in
NOTE OF APPEAL AGAINST CONVICTION
by
JB
Appellant
against
HIS MAJESTY'S ADVOCATE
Respondent
Appellant: Allan KC; Paterson Bell (for Keith J Tuck, Solicitors, Glasgow)
Respondent: Gilchrist AD; the Crown Agent
____________________
9 January 2025
Introduction
[1]
On 26 April 2024, the appellant was convicted after trial of two charges. These were
the rape of his then wife, on various occasions between 1 January 2002 and 31 October 2003.
In terms of the libel, while she was asleep, he removed her lower clothing, lay on top of her
and raped her. The other charge was of sexually assaulting and raping his daughter, on
various occasions between 1 July 2012 and 31 December 2013, all contrary to sections 1, 2
2
and 3 of the Sexual Offences (Scotland) Act 2009. It is not necessary to narrate the details of
the charge involving his daughter.
[2]
On 23 May 2024, the appellant was sentenced to imprisonment for 4 years on the first
charge and 7 years on that involving his daughter, the sentences to run concurrently.
[3]
No challenge is made to the sufficiency of evidence, or to the directions given by the
trial judge. The basis of the appeal is that the Crown failed to disclose the Victim Impact
Statement (VIS) of the first complainer in advance of the trial, thereby failing in their duty in
terms of Part 6 of the Criminal Justice and Licensing (Scotland) Act 2010 and the Code of
Practice issued by the Lord Advocate under section 164 of the Act. The argument is that
there is a material inconsistency between what is contained in the VIS and the complainer's
evidence. Had the defence been aware of it, the VIS only being disclosed on conviction, they
could have used it to attack the complainer's credibility. Since the case relied on the
application of mutual corroboration, if the jury had not accepted the evidence of this
complainer, then they would have been bound to acquit on both charges. On 9 January we
refused the appeal and indicated that we would give our reasons in writing, which we now
do.
The evidence
[4]
We do not require to narrate the evidence of the second complainer, the appellant's
daughter. It is, however, necessary to go into the evidence of the appellant's former wife in
a little detail. She had been unhappy in her marriage for a year or so before it ended. The
parties slept in the same bed until October 2003, when she moved into another bedroom.
During the last year of the marriage, she did not want to be intimate with the appellant. On
a few occasions, she woke up and he would be on top of her having sex with her. She would
3
have been in a deep sleep, would wake up and it was happening to her. Her pyjama
trousers had been removed. She thought this happened three or four times, but she did not
do anything. She probably felt guilty and just let him do it because they were married. It
would end with his ejaculating and then going to sleep. They did not speak about it
afterwards. She had told one of her friends what had happened and was in due course
asked to give a first statement in 2014, when the police were investigating the charge
involving her daughter.
[5]
In cross-examination, she was asked about this first statement. It was Crown
Production 9, not 10 as is stated in the Note of Appeal, and was dated 26 June 2014. She
confirmed that she had not made a complaint about the appellant until then and that the
police were investigating her daughter's complaint. She accepted that she had been married
to the appellant for 9 years and had separated just over 10 years previously. Amongst other
things, the statement said the following:
"I have been unhappy in my relationship with [the appellant] for a number of years
and eventually left. There wasn't a singular or specific reason for our separation ...
During our relationship together [the appellant] was never physically or sexually
abusive towards me."
She accepted that she was telling them the truth. However, she went on to say the
following:
"The only thing I would say is that in the last couple of years when we were together
we weren't being intimate together because I was unhappy. There were occasions
when [the appellant] would wake me up in the middle of the night and have sex
with me. I would sometimes wake up with him lying on top of me. On some
occasions I would let him have sex with me even though I didn't want to, and on
other occasions I would push him away. A couple of weeks before we separated we
knew we were splitting and I was sleeping in another room. [The appellant] came in
and lay on top of me. He kept saying `Come on'. I told him `No we can't do this',
and I had to push him away. Nothing happened, but I can remember being quite
scared at the time."
She said that this was true. She was asked:
4
"So we should understand that there were some occasions you woke up, he was
lying on top of you and sometimes that progressed to him having sex with you and
you allowing him to have sex, even though you didn't want to, and, on other
occasions, you would push him away and that would be the end of it. Is that right?"
She answered in the affirmative.
[6]
The questioning went on:
"... and on another occasion he came into that room, the one you described, a
particular occasion, he came into the room and he lay on top of you, you say, and he
tried to encourage you to have sex, but you made plain (sic) that you didn't want sex
and that was the end of it. Nothing happened."
The witness agreed with this proposition. It was put to her that at no stage did she say that
she woke up and the appellant's penis was inside her, but she affirmed that she was in a
deep sleep and was woken up with him having sex with her.
[7]
When this point was pressed, she said that "obviously I said he was on top of me,
but I didn't want to go into total detail at that point. And the police officer interviewed me
again, they asked me to go into detail about it and that's why there's more." This was a
reference to a second statement (Production 10) which was given in 2021 but which was not
used at the trial.
[8]
The appellant's former wife explained that the first statement was more about her
daughter, so she did not go into great detail or elaborate on matters.
The appellant's evidence
[9]
The appellant denied having any sexual interest in, or having had any sexual contact
with, his daughter and denied ever having sex with his former wife while she was asleep or
when she did not consent. Any sexual contact between them was consensual but it had
stopped a few months before they separated.
5
The judge's charge
[10]
Amongst other things, the attention of the jury was drawn to the criticism of the
complainer that, in her statement of June 2014, she had not said in terms that she had been
penetrated while asleep.
After the verdict
[11]
A VIS of the complainer was given to the defence, as is standard practice. It was
dated 28 June 2023 and had been with the Crown since 8 August 2023. It was provided to
the appellant on the recording of the guilty verdicts; Criminal Justice (Scotland) Act 2003,
section 14 (4). Amongst other things, it contained the following sentence:
"Whilst I was married to [the appellant] I would awaken some nights in the last year
of my marriage to him, on top of me trying to initiate sex."
Herein lies the point of the appeal. It is said that had the defence been aware of this, it could
have been used as a prior inconsistent statement in the complainer's own words, not filtered
through the police, and she could have been cross-examined as to why she had not
mentioned the appellant penetrating her. It is said that this comment would materially have
undermined the evidence of the complainer and materially supported the evidence of the
appellant. The failure to disclose it deprived the defence of the opportunity to cross-
examine the complainer about it and had led to a miscarriage of justice.
[12]
The Advocate depute, on the other hand, submitted that the material added nothing
to that which was already available to the defence. In any event, when the sentence was put
in context and considered in light of everything said in the VIS, it could not be said to be
inconsistent with the complainer's position in evidence. Even if the material were
disclosable, the failure to alert the defence to its existence had not led to a miscarriage of
justice.
6
Analysis
[13]
As we shall turn to in due course, the argument which was presented to us departs
in a number of material respects from the Note of Appeal and indeed from the Opinion of
counsel in support of an appeal to the second sift. That having been said, we were prepared
to allow the argument to be developed.
[14]
The first question for us to consider is whether the material in the VIS was
disclosable. The test is to be found in section 121 of the Criminal Justice and Licensing
(Scotland) Act 2010. Subsections (2) and (3) of that section are in the following terms:
"(2)
As soon as practicable after the appearance or the recording of the plea, the
prosecutor must
(a)
review all the information that may be relevant to the case for or
against the accused of which the prosecutor is aware, and
(b)
disclose to the accused the information to which subsection (3)
applies.
(3)
This subsection applies to information if
(a)
the information would materially weaken or undermine the evidence
that is likely to be led by the prosecutor in the proceedings against the
accused,
(b)
the information would materially strengthen the accused's case, or
(c)
the information is likely to form part of the evidence to be led by the
prosecutor in the proceedings against the accused."
Section 160 deals with the means of disclosure. Subsections (4) and (5) of that section are in
the following terms:
"(4)
Subsection (5) applies if the information is contained in
(a)
a precognition,
(b)
a victim statement,
...
(5)
In complying with the requirement, the prosecutor need not disclose the
precognition or, as the case may be, statement."
The Code of Practice states the following, at paragraph 8.1:
7
"Where the accused is being prosecuted under solemn proceedings the Crown must
proactively disclose witness statements (excluding Victim Impact Statements)
obtained under section 14 of the Criminal Justice (Scotland) Act 2003 for all witnesses
that are on either the Crown or Defence lists."
It was common ground that all this meant that the VIS itself need not be disclosed, but
material information contained within such a statement ought to be. Material information is
information which meets the test set out in section 121.
[15]
When one reads the sentence in the VIS on its own, it might be thought to be of some
significance since it makes no mention of penetration. However, it must be read in context.
The first thing to say about the context is that, while it was undoubtedly in the complainer's
own words, it was not a response to having been asked about what happened. It was a
response to being asked whether the crime had had any lasting effects on her feelings and
ability to cope. It assumed that a crime had been committed. The relevant parts of what
was said are as follows:
"This event has affected me mentally. Whilst I was married to [the appellant] I
would awaken some nights in the last year of my marriage to him, on top of me
trying to initiate sex. At the time I just thought this was appropriate as he was my
husband. But I now realise me not saying anything to him, has probably allowed
him to believe that he could do this to a woman without consent and I now feel
responsible for what happened to my daughter ... I should have said to him, it was
not appropriate to use women for his pleasure. Since [my daughter] has come
forward I have felt like it was my fault that this has happened to her, I feel like the
worst mother ever. If I had told him no! then this might not have happened to her."
She went on:
"I never thought I would be protecting her from her own father. If only I had spoke
out when he did the same to me."
Finally, she said:
"If only I realised that me not saying anything about what he did to me, might have
stopped him directing his sexual desires to his daughter."
8
In context, it is clear that while the statement did not go into full details, she had in mind the
appellant doing the same to her as he did to her daughter, namely raping her.
[16]
Far from undermining the complainer's evidence, this would have backfired had the
defence simply looked at the aspect of it which is the focus of the appeal. The Crown would
have been entitled to examine the context, which would have supported the complainer's
credibility.
[17]
The defence already had available to it materials showing that the complainer had, at
one point, said that the appellant was never sexually or physically abusive towards the
complainer. The statement where that is to be found, Crown Production 9, does not in terms
include any mention of the complainer's waking up to find the appellant having sexual
intercourse with her. That was placed firmly before the jury, yet they convicted.
[18]
In all these circumstances, we are satisfied that what is in the VIS did not materially
undermine the Crown case or advance the defence case. It was not disclosable.
[19]
Even if it had been disclosed, there is no realistic prospect of the verdict having been
any different and there has been no miscarriage of justice.
[20]
The appeal is refused.
Postscript
[21]
In the Note of Appeal it is stated that Crown Production 10 was put to the
complainer. This is plainly an error and it is perhaps not unusual for that type of error to
occur. However, paragraphs 13 and 14 of the Note of Appeal are in the following terms:
"[13] That when [the complainer's] attention was drawn to her statement (Crown
Production No. 10) where she stated that the appellant was trying to initiate sex and
she just went along with it and believed he would have been unaware of her not
wanting to have sex, which different substantially from her evidence that he was
having sex when she wakened, she said that it must be down to confusion or
9
misinterpretation by the police officer taking her statement and she reiterated that
the appellant was having sex, namely penetrating her vagina with his penis, when
she wakened.
[14]
That the complainer wife stated that any confusion or inconsistency between
her evidence on oath and her police statement was not due to her changing her
position but rather to some error on the part of the police officer in noting what she
had said."
[22]
Crown Production 10 was never put to the witness in cross-examination. Nor was it
put to her in chief. None of this is surprising, since it was consistent with her evidence. Of
more import, however, is the fact that at no stage did the witness try to explain any
discrepancy by suggesting that it was due to confusion or misinterpretation by the police
officer noting her statement. This error found its way into the Opinion of counsel
supporting an appeal to the second sift, on the basis that since the complainer used her own
words in the VIS, her explanation about police confusion or misunderstanding would be
undermined.
[23]
We are grateful to counsel for apologising for this error, which he blamed on
confusion with another case he was dealing with, but this sort of thing should not happen.
The Note of Appeal in any case sets the parameters for the submissions in due course, and
the goalposts should not be moved. As it happens, we were able to deal with the argument,
but that will not always be true.
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