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[2017] HCJAC 26



Lady Paton

Lord Malcolm

Lord Turnbull


delivered by LADY PATON









Appellant:  M Jackson;  Faculty Services Limited

Respondent:  Edwards QC, AD;  Crown Agent

12 May 2017


[1]        On 25 May 2016, after a trial in Edinburgh High Court, the appellant (then aged 25) was found guilty of the following charges (read short):

Charge 1:  on an occasion between 12 July 2013 and 13 July 2013, attempted rape of HA, aged 14 years, while she was heavily under the influence of alcohol and asleep or unconscious and incapable of giving or withholding consent, contrary to section 1 of the Sexual Offences (Scotland) Act 2009 (majority);


Charge 3: on an occasion between 1 January 2013 and 31 December 2013, sexual assault of AM, aged 14 or 15 years, by restraining her, attempting to kiss her, placing his arms around her waist, and placing his hands under her lower clothing and attempting to touch her vagina, contrary to section 3 of the 2009 Act (unanimous);


Charge 4: on an occasion between 1 January 2013 and 31 December 2013, sexual assault of ZW, aged 14 or 15 years, by attempting to kiss her, contrary to section 3 of the 2009 Act (majority);


Charge 5: on an occasion between 1 January 2013 and 31 December 2013, behaving in a threatening or abusive manner likely to cause alarm and uttering a threat to ZW, contrary to section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 (unanimous);


Charge 6: on an occasion between 1 January 2013 and 31 December 2013, sexual assault of NL, aged 14 or 15 years, by touching her body and attempting to kiss her, contrary to section 3 of the 2009 Act (majority).


On 21 June 2016, the trial judge (Judge O'Grady QC) imposed a cumulo sentence of 5 years imprisonment.


The circumstances of the offence

[2]        Charge 1 had originally been indicted as rape (not attempted rape).  The circumstances of the offence were as outlined in the appellant's note of appeal, as follows:

“3. …In support of that charge, the complainer (who was aged 14 at the time) alleged that she and 2 other friends (DS (male) and KB (female)) had been bought alcohol by the appellant (at their request) which had been drunk in his flat.  Thereafter, the complainer and her 2 friends had lain down on the appellant’s bed and fallen asleep.  It was agreed that they would all spend the night at his flat…


4.   All 4 of the occupants of the bed lay side-on on the bed.  KB (who was at the top of the bed) and the complainer lay with the appellant between them while DS was at the foot of the bed next to the complainer.  The complainer spoke to waking up with her body shaking.  She said that the appellant’s hand was under her knee and that her leg was being pulled up to her hip.  She didn’t have any pants on and she said that the appellant was having sex with her.  She confirmed that the sex was not consensual.  She was unequivocal on the question of penetration.  She stated that he had his penis inside her.  On being challenged in cross-examination she confirmed that ‘there was a penis inside me’.


5.   DS said in evidence in chief that he had woken and seen a vague outline of shuffling, of someone trying to lift the complainer’s leg.  He pushed the appellant’s arm and verbally challenged the appellant who replied that he was doing nothing.  He was asked what he thought was happening and replied that at that point he didn’t know but that it looked suspicious- like the appellant was trying to do something.  He confirmed that it looked like the appellant was trying to ‘shag her’.  He stated that the appellant was trying to get in closer.  He was lifting her leg and ‘moving in back and forth’. 


6.   In cross examination DS accepted the possibility that what he had seen was simply the appellant trying to make himself comfortable.  He had said this to the police in an earlier police statement although he was clear that he had lied to the police in respect of some of what he had said to them.  For example, he had said to the police in one statement ‘it definitely wasn’t sex’.  He declined to adopt that element of his police statement in cross examination albeit that he did ultimately accept that what he had seen could have been the appellant seeking to make himself comfortable.  In re-examination he said that ‘my evidence is that he was trying to shag her’. 


7.   KB did not assist the Crown in evidence beyond saying that she was aware that the appellant was moving on the bed.  She said he was ‘shuffling’.  She stated also that she had seen the appellant touch the complainer’s leg.  She spoke to waking up to see the complainer and DS wanting to leave hurriedly. 


8.   While there had been a degree of distress shown by the complainer immediately upon leaving the appellant’s flat it was short-lived.  No complaint was made to the police until some 5 months later when it was brought to their attention by the complainer’s social worker.  She had been to a party at the appellant’s house in the interim. 


9.   A section 97 of the Criminal Procedure (Scotland) Act 1995 application was made at the close of the Crown case submitting that there was insufficient evidence to convict of rape.  It was submitted that there was no corroboration of the act of penetration.  That was repelled


10. The emphasis in cross-examination of the Crown case and the basis of the defence speech was i) that there was no penile penetration and ii) that DS accepted that what he had witnessed was simply the appellant moving on the bed to make himself comfortable.  The advocate depute in her speech relied on the unequivocal evidence of the complainer supported by the evidence of DS.  Neither the Crown nor the defence raised the issue of attempted rape.”


The speeches and judge's charge

[3]        In their speeches, neither the advocate depute nor the defence counsel addressed the jury on the alternative of attempted rape.  The judge, in his charge, directed the jury as follows (page 28):

“...But I want to say another word about another crime, which is a slightly, it's still a serious one but a lesser one, which, depending on your view of the evidence, could occur in this context. Now I'm raising this not as a suggestion. I say that because I've emphasised I have no view on the evidence, but I'm raising it simply because, depending on your view of the evidence, it could be an option which is open to you, that's the only reason I'm covering it, it's not a suggestion, and that is the crime of attempted rape.


Now, why do I raise that? Well, you will recall, as I've just told you, that one of the crucial elements in rape which has to be proved by corroborated evidence is penetration. Now, the complainer in this case is quite clear and unequivocal that penetration did take place, but if you were satisfied on her account of the charge as a whole, but had a reasonable doubt about the aspect of penetration, then you could convict of the lesser charge of attempted rape. Likewise, even if you believe the complainer about penetration, but thought that, one way or another, Mr S's evidence fell short of corroborating penetration, you could convict of attempted rape."


Now bearing in mind that, of course, to amount to corroboration, Mr S doesn't actually literally have to see the penetration taking place himself. The evidence which he has given, could, depending on your view, corroborate that penetration. On the other hand, if you didn't think it did, you could find the accused guilty of attempted rape.


Now what is attempt? [and the trial judge proceeded to direct the jury concerning an attempted crime].”


After speeches and the judge's charge, the jury brought back a verdict on Charge 1 of attempted rape.


Grounds of appeal

[4]        The appeal relates only to the conviction of attempted rape.  The appellant sought to argue that there was no basis for the judge introducing the possibility of attempted rape in his charge.  That ground of appeal did not pass the sift.  The ground of appeal which passed the sift was set out at paragraph 14 of the Note of Appeal:

"Esto there was scope for introducing the possibility of attempted rape in his address to the jury, the learned trial judge misdirected himself in failing to seek the views of the advocate depute and defence counsel, especially in circumstances where the latter did not address the possibility of an attempt in his speech to the jury."



The case of Ferguson v HM Advocate

[5]        In Ferguson v HM Advocate 2009 SCCR 78, the appeal court confirmed that it was the duty of the trial judge, irrespective of the wishes of trial counsel, to advise the jury of any alternative verdict obviously raised by the evidence.  The court's judgment also drew attention to the recommended practice of communicating to counsel in court, outwith the presence of the jury, that it was proposed to give a direction on such an alternative verdict or verdicts.  


Submissions for the appellant

[6]        Mr Jackson was the defence counsel at the trial.  Neither he nor the advocate depute had mentioned “attempted rape” when addressing the jury.  Nor had they mentioned other lesser crimes such as assault with intent to rape, indecent assault, or assault.  The trial judge had not advised counsel, in advance of their speeches and outwith the presence of the jury, that he intended to give a direction on the alternative verdict of attempted rape.  He had thus not followed the guidance in Ferguson v HM Advocate 2009 SCCR 78.  Had he let counsel know in advance, counsel would have addressed the jury on attempted rape.

[7]        Nevertheless it was conceded that the defence position to the jury had been that the complainer was lying about any sexual encounter.  Accordingly had advance warning been given, it was not entirely clear what would have been said differently.  But failure to follow the guidance in Ferguson had deprived the defence of the right to address the jury on the lesser alternative.  Counsel would indeed have addressed it.  It was impossible to know what the jury would have made of counsel's submissions on that matter.  Accordingly there had been a miscarriage of justice.  The key issue was fairness.  The judge had an overriding duty in that context.  The conviction should be quashed.

[8]        In relation to sentence, the appellant was, at the time of conviction, a single man aged 25.  He had come to Scotland from Lithuania to improve his prospects.  He had worked in construction and marquee erection.  He had no previous convictions in either Lithuania or Scotland.  In his interview for the Criminal Justice Social Work Report, he had been guarded in that he had maintained his innocence.  But he did recognise that he should have known better, and should not have bought alcohol for teenagers.  He was assessed as a medium risk of re-offending.  But for the attempted rape in Charge 1, the other charges could have been dealt with by summary complaint.  None of the offences had been reported to the police at the time.  The authorities were alerted some 5 months after the event.  All of the events had occurred at gatherings of friends in the appellant's flat.  Notwithstanding the gravity of the attempted rape offence, it was submitted that the sentence was excessive for a crime without violence committed by a first offender with no experience of the justice system.  On his release, the appellant intended to return home to Lithuania.


Submissions for the Crown

[9]        The appeal should be refused.  There had been no unfairness, and the verdict was competent in terms of the Criminal Procedure (Scotland) Act 1995 section 294 and the Sexual Offences (Scotland) Act 2009 Schedule 3.  In view of the evidence, attempted rape was an obvious alternative verdict.  If the jury ultimately concluded that the evidence of the supporting witness Mr S was insufficient to corroborate penetration, then it was open to the jury to convict of attempted rape.

[10]      At page 7 of his report, the trial judge referred to practice in murder cases and tactical decisions taken by counsel whether or not to mention the lesser charge of culpable homicide.  While it was accepted that there was clear guidance in Ferguson and Hopkinson v HM Advocate 2009 SCL 393, those cases involved complex issues relating to mens rea, whereas the present case involved factual matters, the actus reus (the appellant's position being that nothing of a sexual nature occurred).  Thus while it might have been preferable for the trial judge to adopt the approach outlined in Ferguson, in the particular circumstances of the case, that approach was not essential and there had been no unfairness.

[11]      No miscarriage of justice had occurred.  The appeal against conviction should be refused.



[12]      Past practice in the Scottish criminal courts did not require the trial judge to intimate to counsel, in advance of their speeches, that it was proposed to give a direction on an obvious alternative verdict or verdicts reasonably available on the evidence.  Practitioners were considered to be alert to the possibility of conviction of alternative lesser offences (for example, the alternative of culpable homicide when the charge was murder; the alternatives of inter alia attempted rape, assault with intent to rape, and indecent assault, when the charge was rape).  Moreover there was a widely-held perception that the judge's charge would not touch on any alternative lesser offence which had not been mentioned by the advocate depute or defence counsel in their speeches to the jury (see, for example, Lord Johnston delivering the judgment of the court in Mackay v HM Advocate 2008 SCCR 371:

“ is the opinion of this court that the obligation on the trial judge to charge the jury is fenced by the way the case is presented to the jury by both or all parties. It is not for the trial judge to speculate upon or embark upon areas of possible verdict which have not been canvassed in the evidence or formed part of a submission to the jury...”


Against that background, past practice saw counsel taking deliberate tactical decisions. For example, defence counsel might choose to offer the jury a stark choice between “murder” and “acquittal”, and not mention the half-way house of “culpable homicide”.

[13]      However the decision in Ferguson v HM Advocate 2009 SCCR 78 changed matters.  In that case, Lord Osborne, delivering the opinion of the court, quoted with approval certain guidance given by Lord Bingham of Cornhill in R v Coutts [2006] 1 WLR 2154, paragraph 23:

“The public interest in the administration of justice is, in my opinion, best served if in any trial on indictment the trial judge leaves to the jury, subject to any appropriate caution or warning, but irrespective of the wishes of trial counsel, any obvious alternative offence which there is evidence to support ... I would also confine the rule to alternative verdicts obviously raised by the evidence: by that I refer to alternatives which should suggest themselves to the mind of any ordinarily knowledgeable and alert criminal judge, excluding alternatives which ingenious counsel may identify through diligent research after the trial. Application of this rule may in some cases benefit the defendant, protecting him against an excessive conviction. In other cases it may benefit the public, by providing for the conviction of a lawbreaker who deserves punishment. A defendant may quite reasonably from his point of view, choose to roll the dice. But the interests of society should not depend on such a contingency.”


[14]      Lord Bingham went on to advise that any question of unfairness in the trial arising from such an approach on the part of the trial judge could be avoided if notice were given at an appropriate time of the trial judge's intention to give directions in relation to an alternative verdict:

“...There may be unfairness if the jury first learn of the alternative from the judge's summing up, when counsel have not had the opportunity to address it in their closing speeches. But that risk is met if the proposed direction is indicated to counsel at some stage before they make their closing speeches. They can continue to discount the alternative in their closing speeches, but they can address the jury with knowledge of what the judge will direct.”


[15]      Following upon Ferguson, we confirm that it is now much the safest route for any trial judge, if considering directing the jury on an obvious alternative verdict reasonably available on the evidence, to:

“...communicate that view in court, but outwith the presence of jurors, to counsel, before they address the jury, indicating that it is proposed to give a direction upon such an alternative verdict or verdicts. In this way, any possible unfairness may be avoided ... (Ferguson, paragraph 36)”


That practice should be adopted even if the trial judge does not and cannot know in advance what line or approach counsel may adopt.

[16]      That said, the question in the present case is whether the omission to follow the guidance in Ferguson amounted to a miscarriage of justice in the circumstances of this particular case. In our view, it did not. The defence position was quite clear to the jury: no sexual act of any sort had taken place. It was on that basis that defence counsel addressed the jury, inviting them to reject the complainer's evidence as nothing but lies. In such circumstances, the absence in the defence speech of a reference to attempted rape (clearly a sexual act) and submissions that no such act took place was, in our opinion, inconsequential.  In the result therefore we are not persuaded that any miscarriage of justice occurred.

[17]      Turning to sentence, the offences of which the appellant was convicted were serious, particularly Charge 1, but also (cumulatively) Charges 3 to 6.  Three of them involved sexual offences against vulnerable children.  Even taking into account all the mitigating factors referred to by counsel for the appellant, we are unable to say that the sentence was excessive.



[18]      For the reasons given above, we refuse the appeal against conviction and sentence.