Appeal court rejects challenge to convictions over jury directions on missing witnesses and grooming

About this case:

• Citation:
  [2026] HCJAC 43
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Beckett

The High Court of Justiciary Appeal Court held that defence submissions had created a risk that jurors might speculate about evidence which had not been led and that the trial judge was entitled to give corrective directions. It also held that directions on grooming properly arose from the evidence and were relevant to whether one complainer had freely agreed to sexual activity.

WX was convicted at the High Court in Livingston of five charges involving four complainers and offending between 2011 and 2022 in West Lothian.

The convictions included the rape and sexual assault of his half-sister BB when she was 13, assaulting a former partner, threatening or abusive behaviour and rape involving another partner, and incest with a second half-sister. He received an extended sentence of 17 years, including a 12-year custodial term.

The appeal was heard by the Lord Justice Clerk, Lady Wise and Lord Ericht, with Culross, instructed by John Pryde & Co for Keegan Smith, Solicitors, Livingston, appearing for the appellant and A Stalker AD appearing for the Crown. The opinion of the court was delivered by Lord Beckett, the Lord Justice Clerk.

Missing witness submissions

BB gave evidence that WX had sexually abused her from childhood, initially in England and later after the family moved to Scotland. She said he had repeatedly sought to persuade her that sexual activity between half-siblings was normal while telling her to keep it secret. In Scotland, she spoke to three further incidents of sexual assault and rape. Computer evidence also disclosed searches for incest pornography around the time of one of the incidents.

In her speech to the jury, defence counsel challenged BB’s credibility and highlighted the absence of supporting evidence from family members whom BB said had been present or nearby during some incidents. Counsel told the jury that BB had spoken of people walking in during events but there was “no evidence at all” from those people confirming her account.

The trial judge then directed jurors not to speculate about evidence which had not been led, telling them that there could be “a hundred and one different reasons” why a witness had not been called and that they should decide the case only on the evidence before them. WX argued that the judge had wrongly characterised a legitimate defence submission as an invitation to speculate and had thereby undermined the challenge to BB’s credibility.

Jury must decide on evidence led

The appeal court rejected that ground. Lord Beckett stressed that the Crown bears the burden of proving guilt beyond reasonable doubt and must do so by evidence. However, neither prosecution nor defence is entitled to invite jurors to speculate about what an uncalled witness might have said. He stated: “Neither defence nor prosecution is entitled to invite jurors to speculate about evidence not heard.”

The court said that where defence counsel comments on the Crown’s failure to call a witness, a judge may remind the jury that the Crown bears the burden of proof while also warning them not to speculate about absent evidence. Applying those principles, the court accepted that several parts of defence counsel’s speech were legitimate criticisms of BB’s account. However, the submission concerning people whom BB said had walked in during incidents carried a risk that the jury might infer those witnesses would have contradicted her.

Although the court accepted that counsel had not intended to invite speculation, Lord Beckett said her submission “had the potential to prompt such speculation”. The appeal court accepted that the judge had mistakenly believed counsel had expressly asked the jury whether the missing evidence was something they would have expected to hear, and considered her reference to there being many possible reasons for a witness not being called unnecessary.

However, it held that there had been no misdirection. “The judge’s purpose was to warn the jury against speculation and she did so”, Lord Beckett said. Even if part of the direction had been erroneous, it would have been cured by the judge’s clear instruction that the verdict had to be based on the evidence actually led.

Grooming direction challenged

The second ground concerned the judge’s directions on grooming when explaining absence of consent in relation to the charge involving BB. The judge told jurors that a perpetrator may exploit a power imbalance, manipulate a child’s perceptions and misuse trust in circumstances where apparent acquiescence does not amount to free agreement.

WX submitted that grooming had not formed part of the Crown case and had not been mentioned during the pre-speeches discussion. The defence also argued that his position was that the sexual conduct never occurred, rather than that it occurred consensually. The Crown maintained that although the advocate depute had not used the word “grooming,” his speech had referred repeatedly to manipulation, exploitation of vulnerability and abuse of a position of power.

Judge entitled to identify route to verdict

The appeal court again rejected the appellant’s argument. Referring to HM Advocate v LM, Lord Beckett identified common features of grooming including vulnerability, escalating conduct, misuse of trust, manipulation, secrecy and breach of trust by someone in a position of responsibility.

The court considered that aspects of all seven features identified in that case could be found, at least to some extent, in BB’s evidence. It also noted that the advocate depute had referred in his speech to several of those features without expressly using the term “grooming.”

The court distinguished Hogg v HM Advocate, where a trial judge had introduced an unavailable route to verdict after parties had been led to expect a different approach.
Here, the Crown had addressed behaviour amounting to grooming before the defence speech, meaning counsel had an opportunity to respond.

More fundamentally, Lord Beckett emphasised that a trial judge is responsible for directing the jury on the law applicable to all reasonable views of the evidence and is not confined to routes to verdict expressly advanced by counsel. The authorities demonstrated that judges “should not be inhibited from giving appropriate directions in charging the jury where they consider it in the interests of justice to do so or appropriate for reasons of fairness.”

Consent remained for Crown to prove

The court also rejected the argument that grooming was irrelevant because WX denied that the sexual conduct had occurred. The Crown was still required to prove every element of the offence, including that BB had not freely agreed to the sexual activity. Her evidence included circumstances in which she may have appeared to acquiesce after initially resisting, making the issue of free agreement one the jury required to consider.

Lord Beckett held that grooming therefore properly arose from the evidence and that the judge had been entitled to direct the jury upon it. He added that such directions would have been appropriate even if the Advocate Depute had not referred to grooming-related behaviour in his speech.

Finding no merit in either ground, the appeal court refused the appeal.