Man’s appeal against conviction for raping teenage ex-girlfriend refused by High Court

About this case:

• Citation:
  [2024] HCJAC 9
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lady Dorrian

Counsel for the appellant, EM, argued that the jury lacked clarity on the status of social media direct messages sent by the complainer to the appellant’s subsequent girlfriend. It was conceded that these messages could corroborate penetration, which was in any event admitted, but not that they could corroborate other aspects of the complainer’s account.

The appeal was heard by Lady Dorrian, the Lord Justice Clerk, along with Lord Doherty and Lord Boyd of Duncansby. Gravelle, solicitor advocate, appeared for the appellant and the Solicitor General, Charteris KC, appeared for the Crown.

‘Done these things’

In her evidence, the complainer stated that she had entered into a relationship with the appellant around May 2017 and, while they had sexual intercourse, she made it clear that she would not have anal sex. Despite this, on an occasion in January 2018 when the appellant did not have a condom, he asked for anal sex and proceeded to forcibly penetrate the complainer’s anus against her will. At the time, both appellant and complainer were aged 15.

The appellant and the complainer separated in 2019. The appellant started seeing another girl, KP, with whom the complainer communicated on Instagram to warn her about the incident. The appellant had told KP that the incident was consensual and what had happened was that he had tried to put his penis into the complainer’s anus but as soon as he heard her say “ow” he had stopped.

At the conclusion of the evidence, at the judge’s request, the Advocate Depute confirmed that the complainer’s evidence was the principal source of evidence of the absence of consent, and that the distress evidence of two friends she told about the incident two days afterwards corroborated the absence of consent.

In addressing the evidence of KP, the Advocate Depute told the jury that KP appeared in the messages to be indicating that the appellant had told her “that he had done these things”. It was submitted that this may have confused the jury about the status of the messages as corroboration and thus resulted in a miscarriage of justice.

Clear overall position

Lady Dorrian, delivering the opinion of the court, said of the Advocate Depute’s closing speech: “In this passage, as elsewhere, the Advocate Depute could certainly have been clearer in explaining his purpose in addressing this evidence. However the reference to an admission of ‘these things’ was read in context, clearly a reference to the appellant’s admission of anal penetration. The jury would not have understood the Advocate Depute to have been suggesting that the texts could be construed as an admission to rape.”

She continued: “That would have been entirely at odds with KP’s unchallenged evidence about what the appellant had told her. The reference to counselling about ‘it’ relates to the same admission of there having been anal penetration, again bearing in mind that there was evidence relating to the appellant seeking counselling for a variety of reasons, including the trauma of being accused of rape.”

Addressing what was meant by the AD, Lady Dorrian said: “We are satisfied that the Advocate Depute did not suggest that the messages could be treated as an admission by the appellant of lack of consent, or that the jury might have been misled into thinking that they were such an admission. KP’s evidence was that the appellant had at no stage admitted non-consensual penetration; that evidence was unchallenged. It is impossible to see that the jury might have taken a different inference from the messages, standing that evidence.”

She concluded: “The overall position was made clear to the jury: in order for them to convict they had to accept the distress evidence as corroborating lack of consent. It no doubt would have been preferable had the trial judge given a short and clear direction as to the effect of the messages and the use to which they could be put. However, the trial judge’s charge is not to be scrutinised as if the jury did not hear the evidence and speeches. There was no error or ambiguity in the Advocate Depute’s speech that the trial judge was obliged to correct or clarify.”

The appeal against conviction was therefore refused.