E.M. v. His Majesty’s Advocate [2024] HCJAC 9

Note of appeal against conviction:- The appellant was convicted of a charge of raping his partner when they were both aged 15 on an occasion in January 2018. The appellant appealed against his conviction it being contended that the trial judge ought to have directed the jury as to what use could be made of communications between the appellant and the witness KP, in particular, that the communication where KP messaged the complainer that “he has owned up to the things he has done and has said about what happened 2 years ago” were not available as corroboration of lack of consent and the failure to do so resulted in a miscarriage of justice. In the Advocate depute’s speech to the jury the following was said “...KP appeared certainly in the messages to be indicating firstly that the accused had told her that he had done these things. Secondly, that he was going to get counselling about it and thirdly, that in certain ways KP was supportive towards the complainer...”. It was submitted on behalf of the appellant that the absence of a direction from the trial judge in relation to the use the jury could make of the messages amounted to a material misdirection and resulted in a miscarriage of justice. Here the court refused the appeal. The court did, however, comment that the Crown speech lacked a clear analysis of the issues in the case albeit the jury would have been in no doubt that the ‘admission’ of doing “these things” had to be read in context and did not amount to an admission of rape, but rather, to the act of anal sex which, according to the appellant, had been consensual. The court could not identify the relevance of why the Advocate depute referred to the appellant “seeking counselling” and to KP seemingly being “supportive towards the complainer”, however, the court considered that it had been made sufficiently clear to the jury that before they could convict the appellant they were required to accept the available distress evidence as corroboration of the complainer’s lack of consent.