High Court refuses sexual offences appeal based on additional directions on methods of corroboration

About this case:

• Citation:
  [2025] HCJAC 43
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Matthews

Scott McDonald was made subject to an extended sentence of eight years with a custodial term of six years after being convicted of 10 charges involving three complainers. The only ground in respect of which leave to appeal was granted is to the effect that the judge did not properly direct the jury as to the requirements of mutual corroboration for sexual offences.

The appeal was heard in the High Court of Justiciary by the Lord Justice Clerk, Lord Beckett, with Lord Matthews and Lord Armstrong. G Brown, solicitor advocate, appeared for the appellant and Dickson, advocate depute, for the Crown.

A sexual element

In respect of the first complainer, L, the appellant was convicted of locking her in a flat on various occasions from January to December 2004 and threatening and assaulting her. The charges involving the second complainer, S, occurred between 1 December 2011 and 31 October 2012, and included another charge of abduction and various sexual offences. Charges 8 and 9, which were the subject of appeal, alleged he had taken an intimate photograph of S on one occasion and raped her on various occasions.

The charges relating to the third complainer, C, narrated that the appellant demanded that she remove her underwear so he could inspect it and behaved in a threatening and abusive manner towards her. Attached to the indictment was a docket further narrating that he had controlled the use of complainer L’s contraception and penetrated C’s vagina with a lollipop shaped like a penis. The jury acquitted the appellant of one other sexual charge involving L, charge 4 on the indictment and charge 12, a charge of rape in respect of C.

In his charge to the jury, the trial judge gave the standard directions on mutual corroboration. However, after the jury retired, the advocate depute and senior counsel addressed the judge to express concerns that the directions on mutual corroboration had not made it clear that the evidence as to sexual offences could not be corroborated by that on non-sexual offences, in accordance with Duthie v HM Advocate (2021). The judge then gave additional directions that corroboration could be found for sexual offences in non-sexual charges if the jury accepted that they contained a sexual element.

For the appellant it was submitted that it was a misdirection to tell the jury in due course that where non-sexual charges contained averments of a sexual nature or sexual character then the evidence on those could be used as corroboration. Duthie did not hold that all sexual charges are capable of corroborating all other sexual charges. The jury had to consider whether the test of similarity was met and then consider whether the appellant was persistently or systematically pursuing a single course of criminal conduct in relation to the sexual offending.

The Crown submitted that the trial judge had properly referred to mutual corroboration. He had grouped the charges by the e conduct narrated, namely threatening behaviour, assaults, abduction, voyeurism and then rape. The fact that the jury acquitted on charge 4 meant that they had followed the directions as a whole and returned a discriminating verdict.

Character, circumstances, and time

Lord Matthews, delivering the opinion of the court, noted that the additional directions had not been given in a vacuum, saying: “At the beginning of the further directions the trial judge told the jury that he had explained to them in some detail the doctrine of mutual corroboration. At the end of the further directions, in the presence of the jury, the advocate depute declared that the Crown were not suggesting that there could be corroboration of an entirely non-sexual charge with a sexual charge because they were too different in character.”

He added: “Having heard that, the trial judge said ‘yes’ and said to the jury that a basic assault, for example, could not corroborate a charge of rape but a ‘sexual aspect’ might, depending on the view that the jury collectively took.”

Highlighting a question asked by the jury on another charge, Lord Matthews said: “As it happens, the jury asked a question about an aspect of charge 2 [abduction] and whether corroboration of that element could be drawn from the evidence on another charge on the indictment. In answer to that question, which related to the retention of keys in the context of abduction, the trial judge directed the jury that the mere mention of keys did not in itself corroborate anything and reminded them of the necessity for a link in character, circumstances and time.”

He concluded: “If there was evidence before them in relation to another charge that was similar in time, character and circumstance to the charge they were dealing with, then they could have regard to that evidence in considering whether or not there was corroboration. While that question related to a particular aspect of charge 2, the jury having been directed as to mutual corroboration in the first part of the charge, having been reminded of it at the beginning of the further directions, and having been told again how it should work in answer to a specific matter, the suggestion that they might have proceeded on a different basis is entirely baseless.”

Having determined that the jury were entitled to convict on charges 8 and 9, the appeal was refused.