Judges question ‘culture’ at Crown Office in wake of prosecutor’s ‘prejudicial’ questioning as appeal against rape conviction is refused

The Appeal Court of the High Court of Justiciary ruled that there was “no miscarriage of justice” because the trial judge’s directions “saved” the fairness of the proceedings, but the court expressed its “disapproval” of the conduct of the Lord Advocate’s depute.

The Lord Justice Clerk, Lady Dorrian , sitting with Lord Malcolm (pictured) and Lord Glennie, heard that the appellant Kyler Paterson was sentenced to five years’ imprisonment after being found guilty of the abduction, assault and rape of a 15-year-old girl.

The evidence

The trial heard that the appellant, along with a group of other young men and the complainer, along with a group of other young women, were socialising on a beach.

The appellant helped the complainer down from a rock and, standing behind her, put his hands over her shoulders and down her trousers.

She removed his hands and they began kissing, before passing through an archway in a wall to a separate, isolated area of the beach, where sexual intercourse took place.

The appellant lodged a special defence of consent, but the complainer’s evidence was that she did not consent, and there was evidence of distress and injury.

There was also evidence from the complainer that during the incident she used her mobile phone to try and call one of her friends, whose voicemail recorded the complainer saying “You are raping me” and “Kyle, get off me”.

The appellant claimed he did not have any detailed recollection or explanation of the events and most of his evidence was to the effect that the complainer had consented to intercourse.

In relation to the voicemail, he maintained that the recorded conversation did not take place, but he was ultimately convicted.

Cross-examination

The first ground of appeal was that the cross-examination of the appellant by the advocate depute and his subsequent speech to the jury were so prejudicial to the appellant that, notwithstanding the directions made to the jury by the trial judge in this regard, he did not receive a fair trial.

The cross-examination began with the advocate depute telling the appellant that he raped the complainer and that he was lying by denying it.

It was also put to the appellant that he sexually assaulted the complainer, but no sexual assault was libelled.

In the absence of the jury and the witness, a motion was made that the trial be deserted pro loco et tempore on the basis that certain questions were prejudicial to the appellant as constituting an unwarranted attack on his sexual character, but the judge ruled that the various inappropriate questions could be dealt with by instructing the jury to exclude them from their consideration.

In his speech to the jury the advocate depute assured the jurors that “as a matter of law” there was enough evidence to convict the accused.

Irremediable prejudice

On behalf of the appellant it was submitted that this was a trial where the key issue turned on the credibility or otherwise of the complainer and the appellant.

In this context “irremediable prejudice” arose from the conduct of the advocate depute, which went “beyond the acceptable bounds of a prosecutor acting in the public interest” and seeking to lay before the jury evidence in a fair manner.

The prejudice to the fairness of the trial was so severe that no directions, however apposite and carefully framed, could cure the difficulty.

The advocate depute appearing on behalf of the Crown at the appeal hearing, a different advocate depute to that of the trial, submitted that no miscarriage of justice had occurred.

It was accepted that some of the comments in the speech to the jury were “inappropriate”, though not causative of unfairness, but no issue arose from any of the cross-examination.

The principal submission was that, whether regarded individually or cumulatively, none of the questions and none of the comments in the speech were prejudicial to the fairness of the proceedings. If they were, this was cured by the directions in the judge’s charge.

No miscarriage of justice

Delivering the opinion of the court, Lord Malcolm said: “It is clear that a substantial and prejudicial departure from good and proper practice occurred at this trial. That it should happen at all is concerning in itself.

“However, the matter does not stop there. This appeal was based upon criticism of the conduct of one of the Lord Advocate’s deputes in a rape trial conducted in the High Court.

“The presumably carefully considered position of the Crown in response to this appeal was presented by another of the Lord Advocate’s deputes. Her submissions have been summarised above.

“If they were the carefully considered position of the Crown, the failure to acknowledge that something had gone seriously amiss requiring, at the very least, clear and direct action by the trial judge, would suggest that there is a broader question as to the ethos and culture in the prosecuting authority.”

He added: “While the court wishes to express its disapproval as to what happened in the present case, it has concluded that the fairness of the proceedings was saved by the judge’s careful directions. In these circumstances the first ground of appeal falls to be rejected. It would have been a different matter if the judge had not been alert to the problems, or had failed to convey the appropriate instructions to the jury.”

The second ground of appeal that the trial judge should have upheld a motion on behalf of the appellant, based upon certain questions put to him by the advocate depute, to desert the trial pro loco et tempore, was also refused, given that the judge refused the motion on the basis that the matter could be dealt with by appropriate directions to the jury.