Appeal against Conviction by TH against His Majesty's Advocate (High Court of Justiciary) [2025] HCJAC 46 (21 October 2025)

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BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Appeal against Conviction by TH against His Majesty's Advocate (High Court of Justiciary) [2025] HCJAC 46 (21 October 2025) URL: https://www.bailii.org/scot/cases/ScotHC/2025/2025hcjac46.html Cite as: [2025] HCJAC 46 [ New search ] [ Printable PDF version ] [ Help ] APPEAL COURT, HIGH COURT OF JUSTICIARY [2025] HCJAC 46 HCA/2025/000127/XC Lord Justice Clerk Lord Armstrong Lord Ericht

OPINION OF THE COURT delivered by LORD BECKETT, the LORD JUSTICE CLERK in

APPEAL AGAINST CONVICTION by TH Appellant against HIS MAJESTY'S ADVOCATE Respondent Appellant: Loosemore; Faculty Services Ltd Respondent: Harvey AD; Crown Agent ________ 21 October 2025 Introduction [1] The appellant was found guilty after trial in the High Court of three sexual offence charges against two different complainers and appeals against conviction on grounds of misdirection. The trial judge identified two routes to verdict for the charges relating to each complainer. The first route was mutual corroboration and the appellant accepts that it was available on the evidence. The appellant contends that in making available the second route to verdict, namely free-standing corroboration from circumstantial evidence in the form of distress and/or statements de recenti , (recently exhibited or recently made) the judge misdirected the jury and has occasioned a miscarriage of justice. Transcripts of the evidence of the principal witnesses were made available for the appeal. The charges [2] The jury acquitted of charge 2 spoken of by the first complainer (assault with intent to rape of which the complainer had a very limited recollection) and of charge 6 spoken of by the second complainer (allegations of rape at a different stage of her life and in very different circumstances). The appellant was convicted of the following charges: "(001) on various occasions

between 11 July 1989 and 31 December 1994, both dates inclusive, at [address 1] [in a large settlement in the north of Scotland] and [address 2] [in a nearby village] you [TH] did assault AA, your partner, then wife, ... and did follow her around the house, touch her on the body, demand that she have sexual intercourse with you or masturbate you, offer her money to have sexual intercourse with you, and, if she refused, restrict her movements and refuse to provide her with housekeeping money, and did remove her clothing and penetrate her vagina with your penis and did thus rape her; (003) on various occasions between 10 October 1992 and 9 October 1997, both dates inclusive, at [address 2] and [address 3] both [in the same village] you [TH] did conduct yourself in a disorderly manner and did make comments of a sexual nature towards [BB aged 12-15] ... unbutton your jeans in her presence, and expose your penis and masturbate in her presence, and did thus commit a breach of the peace; (004) on various occasions between 10 October 1992 and 9 October 1997, both dates inclusive, at [address 2] and [address 3] and [address 4] and [address 5], both [in the same large settlement] , you [TH] did assault [BB aged 12-15] ... and did pull her clothing, attempt to kiss her, push her onto a bed and restrain her there, kiss her on the face and body, penetrate her vagina with your fingers, and

penetrate her vagina with your penis and did thus rape her." The circumstances of the crimes and features of the evidence [3] From the judge's report and the transcripts of the evidence it is apparent that AA spoke to occasions when she was living with the appellant and he would rape her. He was insistent and would pressurise her. He controlled finances and would offer her money to have sex with him if she did not want to. He would lock her in the house until she gave in and had sex with him. She told her mother, CC, about what happened, but her mother did not do anything as she always liked the appellant. According to the transcript, AA testified that it was when she lived at address 1 that she told her mother. [4] CC, aged 83 when she testified, spoke to occasions when AA would be in tears and told her about sexual things she suffered at the hands of the appellant. It was a long time ago, the children were little. She then said it was just one occasion. AA told her that the appellant had raped her and offered her money. CC thought the appellant must have been under the influence of drink. Her daughter was upset but CC told her, "You'll be okay." With reference to her police statement, CC accepted that her daughter had told her a lot of times that he would not let her out of the house. She told CC that he forced her to have sex a few times. In cross-examination CC confirmed

that her daughter would be in tears when reporting being forced to have sex. CC also accepted that she had truthfully told the police that she got the impression her daughter wanted her to go and fight with the appellant. [5] BB is the daughter of the appellant's cousin. She referred to the appellant as "Uncle T..." The first time the appellant sexually abused her, she was babysitting for the appellant and AA. The appellant came home before AA. He was drunk and smelling of alcohol. She was about 12 and he raped her. It lasted about two minutes and ended when, as she perceived it at the time, she wet herself. She now understood he had ejaculated. She ran home afterwards and did not tell anyone. About a month later he masturbated and ejaculated in front of her in the kitchen when he came home from the pub and she was babysitting for AA who was at the bingo. He always smelled of alcohol. He raped her again at her own home after she turned 13, also digitally penetrating her. He raped her for a third time when she had gone to the appellant's flat to babysit his children after he had separated from his wife (AA). He had been at the pub and came back and gave BB vodka. She was wanting to go home and asked him for money for a taxi and he took her into his bedroom and raped her. Her evidence about charge 6, of which the appellant was acquitted, was to the effect that in later years she

developed a drug problem and he would often give her money and continued to rape her through her early twenties. [6] DD's evidence was that her daughter, BB, used to babysit for the appellant and AA when she was 12 or 13 and she would get paid for doing so. Her daughter became "a bit unruly" but DD attributed this to her age and entering her teens. Towards "the end of COVID," late 2022, her daughter came to live with her for a year or so. During that time her daughter said she really needed to tell DD something. BB burst into tears and eventually told her that the appellant had abused her for years when she was a child, specifying that he would have sex with her. In cross-examination DD confirmed that she had not noticed anything untoward about BB when she returned late at night after babysitting for the appellant. [7] The appellant testified that he only had consensual sex with AA and did not force her when she did not want to. Both she and BB had made up false allegations. He had been involved in a consensual sexual relationship with BB when she was an adult but not when she was a child and the crimes BB described did not occur. Speeches Crown [8] The Advocate Depute offered the jury two routes to verdict: acceptance of the evidence of the respective complainer being corroborated by distress as spoken to by CC and DD and mutual corroboration between the evidence of the

complainers. In that regard he set out what he suggested were key points of similarity: · timing; · each complainer had a family connection to the appellant; · all offences occurred at the appellant's home; · he offered both complainers money in return for sex; and · each complainer spoke of him sexually molesting them when he had been drinking. Defence [9] Senior counsel focussed primarily on proposing that the evidence of the two complainers should not be accepted as credible and reliable. He neither actively contested nor conceded that mutual corroboration could be found. He stated that the minimum was two witnesses, the principle should be applied with caution but it was a matter for the jury to decide if they could find corroboration and where they could find it. It was for the jury to decide if there were similarities and there were considerable dissimilarities. His only specification was that he was not sure if the evidence of AA disclosed any criminal conduct and, he submitted, if not it could not support the evidence of BB. The jury should reject BB's evidence and he said something inaudible before stating it was a matter for the jury. The judge's charge [10] At page 6 of the transcript of the first part of his charge on 18 December 2024, the judge, having referred to the requirement for corroboration, directed the jury on mutual corroboration. He correctly directed at

page 7 that mutual corroboration could apply where each crime is spoken to by a witness whose evidence the jury accepted as credible and reliable in its essentials. At page 8 he directed that the jury would have to accept the essential parts of the complainer's evidence, namely identification of the appellant and commission of the crime charged and that if they did not they would acquit. He directed, correctly, at page 11 that in deciding whether to accept the evidence of a complainer the jury should have regard to other evidence in the case. It was not until page 29 that he gave directions on distress as corroboration. At page 31 he directed the jury that if a complainer gave an account shortly after an event when exhibiting distress it was not hearsay. If it was a continuing reaction to what happened, it was itself corroboration of the complainer's account of being raped by the appellant. [11] After giving a general direction on distress as corroboration, the judge proceeded to make what were plainly cautionary remarks to the jury about it. He directed: "You will have to look at the evidence about distress carefully and decide what was responsible for it. In relation to [CC] are you able to be clear about when she spoke to [AA], and which if any incident the supposed distress relates to? In relation to [DD], bear in mind that she was giving evidence about distress seemingly

exhibited by her daughter in 2022. The period libelled in charges 3 and 4 starts in 1992 and the last date when an offence is said to be committed in charge 6 is 2006. So the Crown are inviting you to accept that the evidence of distress exhibited by [BB] related to something or somethings that happened between 15 years and 29 years before the distress was exhibited. In relation to each of [AA] and [BB] you have to consider any intervening occasions on which they might have exhibited distress or complained of rape but did not do so. Consider the people to whom they might have been expected to display distress but did not do so. Consider the evidence about distress carefully. If you thought the cause was only for the reasons the defence suggests, then the distress could not provide corroboration of the complainers' accounts. But if you thought the distress was at least in part due to the nature of the incidents, that evidence could provide corroboration of the complainers' accounts." [12] On 19 December 2024, the judge directed the jury that on all of the charges the Crown was relying for corroboration on the evidence given by another complainer on another charge or charges. At pages 2-3 he repeated his directions on mutual corroboration and at page 7 repeated that on each charge the complainer was an essential witness and the jury would have to accept her evidence on a charge

as credible and reliable in its essentials before they could convict. At page 8, he specified that on charge 1 the Crown relied on the evidence of the complainer on charges 3 and 4 for mutual corroboration of the evidence of AA. He then stated, at pages 8-9, that there was evidence of AA's distress spoken of by CC and what she told her mother. The judge followed the same pattern on each charge, directing first that the Crown relied on mutual corroboration before alluding to the possibility of distress providing corroboration. Grounds of appeal [13] The evidence of witness CC speaking to AA's distress was not capable of providing corroboration on charge 1 and the evidence of witness DD speaking to BB's distress was not capable of providing corroboration on charges 3 and 4. On charge 1, it was not established how closely connected in time the observation of distress was to the commission of the offence. On charges 3 and 4 the observation of distress was not until at least 25 years after the commission of the offences and was thus not capable of providing corroboration. Since it cannot be known with certainty that the jury found mutual corroboration, misdirection about distress must at least contribute to a miscarriage of justice. The judge's report [14] The judge's impression was that the evidence of the respective complainers was clear and compelling on charges 1, 3 and 4 and

less so on charges 2 and 6. On charge 2 the witness had blanks of memory about the incident and there were some inconsistencies between what she testified and had stated to the police that appeared to the judge of some significance. He considered it unlikely that the jury would have accepted the evidence of CC on charge 2 given her uncertainties and the poor impression he gained of her evidence. CC was aged 83, plainly reluctant to testify against the appellant and her evidence was confused and confusing. He had directed the jury on distress but now acknowledged that he erred in doing so on charges 3 and 4 given an interval of many years between the incidents spoken of by BB and her exhibition of distress to DD. [15] Mutual corroboration was the clear and obvious route to verdict on charges 1, 3 and 4 and he considered it probable that it was the route taken by the jury. He considered that his cautionary directions on the evidence of distress made it unlikely the jury would have followed that route to verdict and it was very unlikely that they would have attached any weight to CC's evidence about distress relevant to charge 1. Submissions Appellant [16] The trial judge accepted that, in light of the decision of this court in McGuiness v HM Advocate [2025] HCJAC 13 , 2025 JC 249, he had misdirected the jury on the availability of distress as a source of corroboration on charges

3 and 4. On charge 1, he acknowledged that it was open to the jury to find that AA's distress may have been observed by CC at the time of the libel of charge 1, but in failing to clarify that if the jury considered it was observed at some later time it was not corroborative, the judge had again misdirected the jury. [17] Since it cannot be affirmed with certainty that the jury did not rely on distress to corroborate the charges of which the appellant was convicted, and cannot be certain that the jury found mutual corroboration, the judge's misdirections constitute a miscarriage of justice. The appellant concedes that if the jury found each complainer to have given credible and reliable evidence on the charges on which they convicted they could have found mutual corroboration. If they did, there would be no miscarriage of justice. [18] In CA v HM Advocate [2024] HCJAC 29 , 2024 JC 389 the court was able to affirm that the jury had accepted the evidence of each complainer and had found mutual corroboration where speeches had focussed only on mutual corroboration. Accordingly, misdirections implying that consent was in issue on charges involving sexual offences against young children, and distress available as a source of corroboration for the state of mind of the complainers, did not constitute a miscarriage of justice. Even though the trial judge in the present case reports that

the most obvious route to verdict was mutual corroboration, the position must be different. Since there were numerous different approaches the jury could have taken, the convictions cannot stand. Respondent [19] Nothing of consequence could be taken from CA , given the ratio of the case was that distress was of no relevance on sexual offences against children under 13 and consent was not in issue. On charge 1, there was no misdirection as there was a view of the evidence whereby CC's evidence of AA's distress and statements could be considered recent to the crimes of rape spoken to by the complainer. The complainer's evidence was that she told her mother what the appellant was doing to her when she lived at address 1 and CC's evidence was that she told her daughter, "It will be OK." This would support the conversation and the observation of distress occurring at a time when the offending was ongoing and therefore contemporaneous with it. [20] Following McGuiness , it had to be accepted that the trial judge did misdirect the jury in stating that DD's evidence could corroborate the evidence of BB on charges 3 and 4. There was no miscarriage of justice as mutual corroboration was the most likely route to verdict taken by the jury in convicting the appellant of charges involving both complainers. [21] In any event, a misdirection, even a material one, does not automatically mean

that there was a miscarriage of justice; MacDougall v HM Advocate [2021] HCJAC 32 at para [18]. The court must consider the whole circumstances of the case and will not examine parts of the charge in isolation, but, rather, in the context of the directions as a whole and against the background of the whole evidence in the case and the arguments at trial. The requirement is for a discernible route to verdict, CH v HM Advocate [2016] HCJAC 4 at para [13] and that remains present in this case. [22] Whatever pure theory might suggest, the court should take a practical approach. Since the judge describes CC's evidence as tortuous, confused and confusing, borne out by the transcript of her evidence, as the trial judge observed in his report, it is unlikely the jury gave it any weight. He had specifically directed the jury about the shortcomings in her evidence. The only other route to verdict on charge 1 was mutual corroboration. If they found it on charge 1 then they must have found it on charges 3 and 4. They would have had little difficultly in doing so once they accepted the evidence of the two complainers as they must have done. The trial depute had spelled out points of similarity in his speech: timing, family connection between the appellant and complainers, all occurring at the appellant's home, the appellant offering money to the complainers and the offences occurring when

he had been drinking. It is obvious that the jury must have found mutual corroboration; Stalley v HM Advocate [2022] HCJAC 12 , 2022 JC 121 . [23] That conclusion is not undermined by the acquittal verdicts on charges 2 and 6. The judge pointed out that the evidence of the complainers about those matters lacked the clarity and cogency of their evidence on the charges of which the jury convicted as he reported at para 37 of his report. He pointed out the relative weakness of the complainer evidence on these charges in his report at paragraphs 10 and 24. The jury's verdict should be seen as discerning and arrived at on mutual corroboration. Support could be found in Stalley at para [35]; JH v HM Advocate [2024] HCJAC 10 , 2024 JC 300; and Beveridge v HM Advocate [2025] HCJAC 23 . Decision [24] In her oral submissions, counsel for the appellant variously suggested that the verdicts were unsafe and that there was a real possibility that the jury would have acquitted but for misdirection. Neither formulation addressed the correct test, namely whether the appellant's conviction on charges 1, 3 and 4 was a miscarriage of justice: s 106(3) of the Criminal Procedure (Scotland) Act 1995. As this court has explained, the test in McInnes v HM Advocate [2010] UKSC 7 , 2010 SC (UKSC) 28 , there being a real possibility of a different verdict, applies only in certain cases relating to

convention rights, primarily those concerning breach of article 6 based on non-disclosure by the Crown: Brodie v HM Advocate [2012] HCJAC 147 , 2013 JC 142 (a misdirection case); Geddes v HM Advocate [2015] HCJAC 10 , 2015 JC 229 . In Geddes , the Lord Justice Clerk (Carloway) explained, at para [89]: "...in any criminal appeal, other than one based on a breach of Convention rights and thus governed by the UK Supreme Court's dicta in McInnes v HM Advocate , the court has to apply its collective knowledge and experience (AJE v HM Advocate) in taking an `overall view of the circumstances' (Brodie v HM Advocate ) on whether a miscarriage of justice can be seen to have occurred..." [25] Counsel accepted that what this court stated at McGuinness at para [36] correctly represents the law: "...if evidence is not corroborative that does not, of itself, render it inadmissible. A witness speaking to a complainer's distress is simply a piece of circumstantial evidence. In some circumstances it can provide corroboration, in others it cannot. Juries are commonly told that they can have regard to all of the evidence in determining what to make of the evidence of a witness, particularly if their evidence is disputed, contentious or under scrutiny. They are certainly entitled to do so ( Begg v HM Advocate , para 35; Fox v HM Advocate , Lord Coulsfield, p 117; McDonald v HM Advocate , para

27 et seq ; PGT v HM Advocate , paras 19­22). Where evidence of a complainer's distress is unavailable as corroboration, we are not immediately convinced it follows that it can serve no other purpose in the jury's considerations." [26] We agree that this is the law. Accordingly, even if evidence of distress was not available as corroboration, it was material to which the jury could have regard in resolving whether to accept the evidence of the complainers as truthful and reliable in their accounts of being raped by the appellant. This has some bearing on the impact of the conceded misdirection concerning charges 3 and 4. The gap between evidence not being available as corroboration but being available to assist in the jury's qualitative assessment of disputed evidence is plainly narrower than in circumstances in which the evidence of distress was not admissible at all. The gap is further narrowed on consideration of DD's observation of changes in BB's behaviour at the material time. [27] Whilst the Advocate Depute did refer to corroboration from distress for each complainer's evidence, he also invited the jury to find mutual corroboration. In that regard he referred to: · the overlap in time; · both of the complainers were related to the appellant, AA was his wife and BB was his cousin's daughter; · both occurring at address 2; · both complainers spoke of him offering them or

paying money in the context of sex occurring; · it would often occur when he was drinking. [28] In addition, we consider it a very striking and compelling feature, supporting a finding of mutual corroboration, that the first incident of rape (charge 4) described by BB occurred at AA's house at address 2 where she was babysitting for AA and the appellant. [29] In Beveridge there was a necessary or inevitable inference, from the verdicts returned in light of the directions given, that the jury must have found mutual corroboration on the charges in issue, such that it could readily be said that other misdirections did not constitute a miscarriage of justice. This does not establish a principle that it is only where that inference is necessary or inevitable that the presence of a misdirection, even a material misdirection, does not give rise to a miscarriage of justice. That not every material misdirection occasions a miscarriage of justice is supported by the opinion of the court delivered by the Lord Justice Clerk (Dorrian) in MacDougall , at para [18]. Her Ladyship cited Docherty v HM Advocate [2014] HCJAC 94, 2014 SCL 758, a murder conviction referred by the Scottish Criminal Cases Review Commission, the Lord Justice General (Gill) delivering the leading opinion, at para [33]. [30] It is abundantly clear that the jury were repeatedly directed, and understood, that in order to

convict at all, they must accept the evidence of the complainers on charges 1, 3 and 4. The judge also directed them that there required to be corroboration. [31] We do not consider there to have been a material misdirection on charge 1. It was open to the jury to find corroboration from the evidence of BB about AA's distress and her statement, de recenti, that the appellant was raping her. AA's specification that she was living at address 1 when she told her mother is significant because the jury convicted of conduct occurring both at address 1 and address 2 where she moved to from address 1. When AA's evidence is considered alongside CC's evidence that her daughter wanted her to do something about what the appellant was doing, but that she did not do so because she liked him, and in particular CC's evidence that she responded to AA's upset state by saying, "You'll be okay," the natural implication is that the exchange and observation occurred at a time when the complainer was being raped by the appellant. Accordingly, what she said was indeed a statement de recenti and CC's account of AA's distress was available as corroboration. The only question for the jury was whether they accepted CC's evidence. There can have been no difficulty in the jury being satisfied that the cause of AA's distress was the conduct complained of given what AA said, de recenti , to CC and it was for

the jury, if they accepted CC's evidence, to decide if the distress was genuine. If they did not accept CC's evidence, they cannot have found corroboration in distress and must have found mutual corroboration. [32] The Crown conceded that there was a misdirection to the effect that a route to verdict based on corroboration being found in distress exhibited in 2022 was available on charges 3 and 4 when it should not have been. It remains for us to determine whether there was a miscarriage of justice. We have already noted that the evidence in question was admissible and available to the jury in their assessment of BB's evidence albeit it could not provide corroboration on charges 3 and 4. Neither at trial nor in the appeal was any point made about DD describing BB's behaviour becoming unruly at the time when she was babysitting for the appellant. That was potentially pertinent circumstantial evidence contemporaneous with the events of charges 3 and 4. At the very least it was a relevant part of the picture concerning charges 3 and 4 and it is unfortunate we were not addressed on it in the appeal. [33] We must take an overall view of the whole facts and circumstances. In doing so we are assisted by the trial judge's report, the purpose of which is to communicate his opinion on the case generally, and on the grounds of appeal, to this court; 1995 Act s 113. Whilst the trial judge

accepts that the matter cannot be affirmed with certainty, his impression, in light of the way the case was conducted and the content of his directions, was that the jury found mutual corroboration. He considered it the obvious route to verdict. He explains that the evidence of CC was not particularly clear or cogent and that, whilst DD's evidence about BB's distress seemed acceptable, it came so long after the events were said to have occurred that the jury were unlikely to have found corroboration from it. In that regard we note also the force of his cautionary directions on that point providing a strong steer that the interval counted against the jury's finding corroboration from distress for charges 3 and 4. He considered that CC's evidence was very poor and unlikely to have been found acceptable to the jury. On the basis that he is correct, the jury must have found mutual corroboration and, since the jury accepted the essential parts of the evidence of both complainers, the verdicts on all charges could not amount to a miscarriage of justice. [34] In Stalley , the trial judge's directions left it open to the jury to find mutual corroboration for charges of rape from non-sexual charges of breach of the peace. The jury must have accepted the evidence of the complainers on the sexual offences. Whilst there was a misdirection, the court's judgment was that the jury were bound

to find that there was mutual corroboration between the sexual charges. We recognise that, in that case, there were more charges and more complainers than in the appellant's case. Nevertheless, taking an overview of the whole facts and circumstances, including the overlap of timing, the similarity in the conduct, the features in common and, especially, the highly compelling link that the appellant raped one female he was related to in the home of the other, in address 2, when she was babysitting for him and that other complainer, whose evidence was that she too was raped there, our judgment is that the jury did find mutual corroboration. As we have noted, that was also the trial judge's impression. The alternative proposition, that the jury did not find mutual corroboration despite the absence of any real challenge from the defence as to its availability, and in the face of compelling links and similarities, but instead found corroboration only in DD's evidence of observing BB's distress 25 years later, despite the judge's strong cautionary directions in that regard, is fanciful. [35] Accordingly, there is no miscarriage of justice and the appeal is refused. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII URL: https://www.bailii.org/scot/cases/ScotHC/2025/2025hcjac46.html