High Court rejects rape conviction appeal based on erroneous docket directions due to no miscarriage arising

About this case:

• Citation:
  [2026] HCJAC 19
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Matthews

Appellant RS was convicted of 10 charges against two separate complainers including five charges of anal rape, indecent assault, statutory domestic abuse offences, and contraventions of sections 38 and 39 of the Criminal Justice and Licensing (Scotland) Act 2010. He was granted permission to appeal on the ground that the directions given about the docket did not give the appropriate guidance on permissible use and resulted in a possibility of the jury using it as a form of bad character evidence.

The appeal was heard by Lord Pentland, the Lord Justice General, with Lord Matthews and Lady Wise. Lenehan KC and Shand, advocate, appeared for the appellant and Dickson KC, advocate depute, for the Crown.

Striking similarities

The appellant met complainer A when she was about 14 and he was around 10 years older. They formed a relationship, which they later rekindled in 2004 when he moved to her house in the Inner Hebrides. The relationship later became abusive, with the appellant accusing the complainer of infidelity and pressurising her into sexual activities, including anal sex, with which she was uncomfortable. Evidence was led that he would telephone her up to 30 times a day when he was working offshore and that he had on one occasion punched and kicked her in the presence of her children. Further evidence of similar conduct was also led in respect of his later relationship with complainer B.

Attached to the appellant’s indictment was a docket with two paragraphs, which began “TAKE NOTICE in terms of the common law” and stated that the Crown intended to lead evidence at his trial that he had repeatedly made unwanted telephone and text message contact with complainer A between 29 October 2015 and 2 November 2015, as well as a paragraph about another matter that was later deleted on a Crown motion. The Crown case was largely based on the Moorov doctrine, with the jury accepting the evidence of both complainers and convicting on that basis.

In the course of her charge, the trial judge directed the jury using the sample directions in the Jury Manual which were appropriate to dockets under section 288BA of the Criminal Procedure (Scotland) Act 1995, relating to dockets specifying acts or omissions connected with a sexual offence. Both parties accepted that the docket in question did not fall within the scope of that section, and the appellant submitted that the judge’s direction was therefore a misdirection that caused them to use it in connection with the sexual offence.

The advocate depute submitted that the trial judge had clearly directed the jury that there was a difference between sexual and non-sexual offences. There were striking similarities in the experiences of both complainers, and the charge had to be considered as a whole. Viewed in the context of the evidence, any misdirection was of no moment.

An object lesson

Lord Matthews, delivering the opinion of the court, said of the use of dockets in recent years: “A docket may contain evidence which suggests that an accused is of bad character in the sense that he has done something which is not the subject of a specific charge. The law allows this as long as the appropriate notice is given. This would seem to have been recognised by senior counsel who did not rely on any question of bad character in his oral submissions (although this had been referred to in the written case) but emphasised rather the confusing picture which he submitted was drawn for the jury.”

He added: “Unfortunately, what the judge told the jury at a later stage was wrong and amounted to a misdirection. It was, however, only wrong in respect that she referred to the matter as if it was specifiable by reference to a sexual offence as opposed to using a simpler formula which would have been suitable for a common law matter. This could easily have been done by adapting the Jury Manual sample directions.”

Considering whether a miscarriage of justice had resulted, Lord Matthews said: “As the advocate depute pointed out, the judge explained the difference between sexual and other offences for the purposes of Moorov but that may have been undermined by the reference to sexual offences in the context of the docket, in the sense that the jury may have thought that the evidence relating to the docket somehow added to the body of evidence they were entitled to take account of when considering their verdict on those offences. This may well have been confusing, but what was the consequence? At best for the appellant, that the jury did take account of the evidence when assessing the sexual elements.”

He concluded: “This was a case where the jury must have accepted the gravamen of the evidence of both complainers as set out above, involving serious abusive and sexual offending. It is inconceivable that any weight they may have attached to the docket evidence was sufficient to change what would have been a verdict of acquittal to one of conviction. It is not the fashion nowadays to use Latin but if ever there was something which was de minimis (i.e. of no materiality), this is it.”

The appeal against conviction was therefore refused, with Lord Matthews adding in postscript: “This case is something of an object lesson. It has been said before, in the context of applications under section 275 of the 1995 Act, that judges should carefully read the papers. A perusal of the indictment would have shown, as was said in terms, that this was a common law docket. Secondly, while the first error (not appreciating that the docket was at common law) led into the second (the erroneous direction) it is another illustration of the principle that juries are entitled to a bespoke charge.”