Ryan McConville v. His Majesty’s Advocate [2024] HCJAC 51

Note of appeal against conviction:- The appellant was convicted after trial at Edinburgh High Court of a contravention of section 2 of the Sexual Offences (Scotland) Act 2009. He appealed against his conviction it being contended that no reasonable jury would have convicted the appellant having, some hours prior to its verdict, asked questions of the judge which suggested that an acquittal verdict was to follow. The issue at trial was whether the complainer consented to the appellant penetrating her vagina with his penis, it being agreed that penetration had taken place. After the jury retired to consider their verdict, they returned with two questions:- “(1) In a situation where, for example, if 7 say guilty, 4 say not guilty and 4 say not proven – what is the verdict and how do we express that? and (2) In a situation where, for example, if 7 say guilty, 2 say not guilty and 6 say not proven – what is the verdict and how do we express that?” The trial judge proceeded on the basis that the jury had reached a concluded view represented by seven jurors only in favour of guilt and gave the jury further directions which included inter alia the following:- “…you cannot convict the accused unless there is an absolute majority of you, at least eight of you, in favour of a guilty verdict. From the nature of your questions, I can see that that is not so, that there are seven and therefore you are bound to return a verdict of acquittal…”. In his report to the court the trial judge considered that he had made an incorrect assumption that only seven jurors were in favour of a guilty verdict given the hypothetical nature of the questions from the jury. Here it was submitted on behalf of the appellant that it was clear from the exchange that took place between the trial judge and the jury that the jury had decided to acquit the appellant and it was reasonable to assume that the  jury, after resuming their deliberations, would reach their verdict having taken cognisance of what the judge had given them further directions on and they had clearly not done that and had thus acted unreasonably and a miscarriage of justice had occurred. On behalf of the Crown it was submitted that the questions posed were hypothetical and no miscarriage of justice had occurred. Here the court refused the appeal. The court noted that the trial judge had “frankly and fully acknowledged his error in this case” by concluding that the content of the two questions posed indicated that the jury had reached a final position of acquitting the appellant. The court stated that the trial judge ought to have given the jury a clear direction that in order to return a verdict of guilty at least 8 of their number required to be in favour of such a verdict. The court considered that the further direction that the jury required to give a verdict of acquittal was a misdirection. The court, however, noted that, in such an appeal under section 106(3)(b), the concept of the reasonable jury is qualified by referring to a “reasonable jury, properly directed” and in the present case the jury was not properly directed. The court went on to consider whether the jury, if properly directed, could have returned the verdict it did and the court answered that in the affirmative and the appeal was refused.