Scottish High Court of Justiciary Decisons

"on 24 January 2004 at a lane between Central Park car park and Chapel Street, both Cowdenbeath, Fife, you did assault [JK], c/o Fife Constabulary, Cowdenbeath, and did handle her private parts, attempt to kiss her on the mouth, seize her arms and force her to the ground, restrain her there, place your hand over her mouth, place her legs over your shoulders, lower her clothing, insert your private member into her private parts and you did rape her."

"The presiding judge misdirected the jury in his charge to the jury regarding the standard of proof required for conviction. At page 11 of the said charge to the jury (lines 17 and 18) he directs the jury as follows:

'However, if you thought that the accused is guilty but at the same time you had a reasonable doubt about his guilt our law says that you must give him the benefit of that doubt and acquit him. If you have no such doubt then you must convict. So it depends upon what is a reasonable doubt is [sic]. It is quite difficult to explain but a reasonable doubt is a doubt based on good reason. It is the kind of doubt that would make you pause or hesitate and reconsider an important decision in your own lives.' [Quotation not indented in the original.]

At page 14 of the charge to the jury (lines 7-11) the presiding judge directs the jury 'if there is evidence from a single source that makes you think that the accused is not guilty or gives you a reasonable doubt about his guilt, that evidence would allow you to acquit and that is what you would do.'

At page 14 and 15 (starting at line 24 of page 14) the presiding judge directs the jury '... but a reasonable doubt can be established by a single source of evidence.'

In the directions at page 11 referred to above the jury are directed that if they thought the accused is guilty but at the same time hold a reasonable doubt then the law says they must acquit. Thereafter the presiding judge defines reasonable doubt as a doubt which makes you hesitate and reconsider a decision. Taken together the jury were asked in these directions to decide if the appellant was guilty and then if so to consider whether they hold a doubt such as would cause them to reconsider that conclusion. This is a material misdirection because the jury should not have drawn a conclusion of guilt before they were satisfied beyond a reasonable doubt of the same. Moreover the definition of reasonable doubt is normally a doubt which results in hesitation not reconsideration.

In the directions at pages 14 and 15 above there was a misdirection because no evidence is required in order for a jury to have a reasonable doubt the accused being presumed to be innocent.

It is submitted that the said misdirections have resulted in a miscarriage of justice."

In his submissions to us, counsel for the appellant rehearsed what was said in this ground but added little by way of material amplification of its terms.

"It is possible, in my opinion, to dispose of this ground of appeal very briefly. Accepting, as the appellant did, that it is legitimate to direct a jury that reasonable doubt is the sort of doubt that would cause a juror, in a matter of importance in his or her own life, to pause or hesitate (see, for example, MacDonald v HM Advocate, Lord Justice Clerk Ross at p 671B), the only issue raised on the appellant's behalf is whether the addition of the words 'and reconsider' altered the standard in a sense adverse to the appellant. This case is, in my opinion, distinguishable from cases such as MacDonald, Buchanan v HM Advocate and A v HM Advocate, in which the additional words used implied that a reasonable doubt was one which would dissuade the juror from a particular course of action. Considering the language used by the trial judge in the present case, I can see no sensible purpose that would be served by a pause or hesitation other than that it should afford the opportunity for further thought; for 'reconsideration' of, 'reflection' upon or 'review' of the situation, I am therefore of opinion that to articulate that point by the introduction of the words 'and reconsider' into the sentence in question made no material difference to the sense of the direction. Those words did not, in my opinion, set an unduly high standard for reasonable doubt and thus lower the standard of proof incumbent on the Crown. In my view that is clearly so when the words which Mr Shead sought to criticise are read, as they ought to be, as part of the whole passage in the charge dealing with reasonable doubt. They therefore did not constitute a misdirection."

"The third heading is about the standard or quality of the evidence that is required before there can be a conviction and the rule is that the standard of proof required before there can be a conviction in Scotland is that the jury must be satisfied beyond reasonable doubt that the accused is guilty. Now, what does that mean? Well, it doesn't mean that you can find the accused guilty if you think well, he is guilty on balance rather than not guilty. It is not a weighing up of the evidence and seeing which way the scales fall. But equally of course you can't expect things to be proved as a matter of absolute certainty. Human beings aren't capable of coming to court in these sort of situations and proving things to that sort of level. So how it is usually explained is like this: if you are satisfied on the basis of the evidence you have and the directions that I have given to you that the accused is innocent of this charge then it is quite simple, you just acquit him. If you're satisfied on the same basis that the accused is guilty beyond reasonable doubt then you would convict him. However, if you thought that the accused is guilty ... [here the charge continues into the passage quoted at the outset of the original ground of appeal and which we have indented, for easier reference]."

In light of that passage it is apparent that the trial judge was simply endeavouring to convey to the jury the notion that it was not enough for the jury to consider the accused to be guilty unless they could do so beyond any reasonable doubt. In doing so he was reflecting what had been said shortly before, to the effect that belief that the accused was guilty on the balance of probabilities was not enough.

"So those, ladies and gentlemen, are the general rules of evidence but there is one final twist which I have to tell you about and that is this: the rule of corroboration which I mentioned which applies to the prosecution case doesn't apply to the Defence. If there is evidence from a single source that makes you think that the accused is not guilty or gives you a reasonable doubt about his guilt, that evidence would allow you to acquit and that is what you would do."

The extracted passage at the foot of page 14 of the charge, continuing on to page 15, is simply part of a summary of the position respecting inter alia corroboration. Given that context, in which the trial judge is contrasting the need for corroboration of the Crown case with the absence of a need for corroboration of any defence evidence, the directions are understandable and unobjectionable.

(i) Failure by counsel at the trial properly to cross-examine the complainer;

(ii) Failure by the solicitor and counsel by way of preparation for the trial to obtain expert evidence respecting the effects of the appellant's excessive consumption of alcohol as an explanation for his change of position from police interview to response to caution and charge;

(iii) Failure by the solicitors and counsel to obtain, in advance of the trial, mobile telephone record evidence which might have demonstrated that, after the sexual encounter, the complainer had sought and noted in her mobile telephone the appellant's mobile telephone number and thereupon "dialled" the appellant's telephone number to confirm the accuracy of her insertion of that number in her contact list; and

(iv) Failure by trial counsel in cross-examination of the Crown's medical witness to highlight that evidence given by that medical witness to the effect that the complainer had bruising to her arm might be explained by the appellant's account of helping the complainer up from the ground after the sexual intercourse.

From that catalogue it is evident that the Anderson grounds fall into two categories, namely (a) the complaint of inadequate forensic performance by counsel during the trial [heads (i) and (iv)] and (b) the complaint of failure by the appellant's legal team to prepare appropriately for the trial by obtaining the additional evidence now desiderated by the appellant [heads (ii) and (iii)]. We find it convenient to discuss the first group - forensic performance - before considering the second group - preparation for the trial.

"The Appellant's Counsel failed to cross-examine the Complainer as to how the Appellant had managed to remove her clothing (shoes, trousers and pants) in order to achieve penetration. Thus the defence failed to test or highlight for the jury the inherent unlikelihood of the Complainer's account as opposed to that of the Appellant (i.e. that this was a willing and entirely consensual encounter)."

"How did you go down on to the ground? - He pushed me onto the ground. He sort of had a grab of me and then he covered his hands over my mouth so that I would stop yelling and then I tried to get my phone out of my bag and stuff but I couldn't move my arms. Then I think ... I don't know how he managed to get my trousers unbuttoned and then I think then I think [sic] he had raped me at that point and then everything else is just a blank.

All right, I have to ask you for a little more detail about that? - Yes.

You said that he put your legs up by his shoulders [this reflected an earlier answer by the witness]. Where exactly do you mean? - Just right of the top on his shoulders.

You mean resting on his shoulders? - Yes.

Had he got your jeans undone before he did that with your legs or after it? - I really can't tell you. It happened so fast.

Did you[r] jeans come off completely? - Yes.

So your jeans were taken off? - Yes.

Were you wearing underwear of some sort? - Yes.

What happened to that? - They were with my jeans.

Taken off as well? Yes."

"Thereafter when they left did you not take his penis back out and start to have oral sex with him again? - No.

Did you not unbuckle his belt? - No.

And he unbuttoned your jeans? - No.

And then he touched your breasts whilst you're basically masturbating him? - No.

And he asked you if you would lean over the brick structure to have sexual relations for the purpose to have sex from behind? - No.

And you said no at that period because you had your period? - I had my period.

And he then asked you to keep on giving him oral sex? - No.

And then he said, asked you if you had ever had sex when you're having periods, and you said no? - No.

And he said it is not really that sore when you're having a period? - No, that didn't happen.

You then said that notwithstanding you were having your period you would give it a go? - No.

And at that point he put his jacket on the ground and you lay down on your back and you had your jeans halfway down you round your knees? - No.

And he got on top of you and your jeans were halfway down and he had sex lying down on the jacket which lasted for about 15 to 20 seconds? - No."

"Let's also consider the logistics of how she describes the rape. I think she says, 'I put my legs up on his shoulders' (inaudible) my shoulder. He was covering his hand with my mouth and his arms were outside my legs.'

Now, I might recall that she seems to have both his arms involved with both her arms but also she has him having his hand over her mouth to cover up any screams. Now that, ladies and gentlemen, is not possible, is not possible because you cannot hold two arms and cover her mouth at the same time.

And she has herself more or less bent double in this particular scenario. Ladies and gentlemen, the (inaudible) of how she physically describes the rape with more or less being bent double is (inaudible) especially when you consider that there's no muscular or tender nor muscular pain or tenderness reported when she sees the doctor after the whole experience."

Forensic performance (2)

"The fingertip bruising there I think you have said would be consistent with if the accused was forcibly holding the complainer by the arms? - Yes it would be consistent with that.

But again in the context of the scenario that I have described to you, passionate drinking, rather unusual encounter, bruising of that sort of nature could occur in that perhaps rather rough encounter is that fair to say? - Yes a firm hold to support someone or other mechanisms would be equally likely to produce fingertip bruising.

Because whilst one would accept that type of fingertip bruising is not typical of a normal sexual encounter, if passions are greatly aroused and a bit rough and unusual then that sort of bruising could be created? - Yes I think there are many explanations for the cause of this bruising, which could be equally consistent with the mechanism you describe.

When you say many mechanisms, what kind of mechanisms? - Well you alluded to intoxication with alcohol. I notice snow on the path. Someone falling, someone grasping to support them - you know, all these types of things would result in a grasp fingertip bruising. It may not be an assailant mechanism. It could be a supportive or helpful mechanism. There is no way that I can tell from this photograph what mechanism is involved.

So it could be an assault, where equally it could be the reverse, it could be a supportive mechanism? - Yes." [Appendix No.18, p 97 line 11 ff].

"I'm wanting tae say that [JK] was chasing me all night inside Partners. Evertime I approached my brother-in-law who was dancing with a friend at the time she would come up tae me and she would try tae dance in front of me and rub her backside against my penis and I'd move away fae her. This happened several times in the night, then outside Partners I was waiting to see who would come out back for a party, friendwise, eh she come up and kissed me there and I thought it's the end of the night, I've no' got anybody, what the hell. I sat doon on the, the windowsill at the door next tae Partners and she come over tae me again and started kissing me, took my hand and led me towards the path and eh if you go up the path a bit there's a little electrical box type thing and eh we started kissing there. She took out my penis and started rubbing it then we heard voices, two girls came towards us. I put my penis away. She had a bit of a conversation with them and eh they carried on walking. She took my penis out again, I undid her belt and her button and started playing with her and eh she asked if, if she would give me a blow job and she did, then I asked her if she would bend over the, the box. She says no I've got my period, it'll hurt. I says right then so I asked her if she would give me a blow job again. She said okay and we moved onto the path and eh she was doing that and I was playing with her again and I said have you ever had sex with your period and she says no. I says well it doesnae hurt that much. She says right then, so I put my jacket down, she lay down on the, on my jacket and her trousers were down at her knees, eh I inserted my penis, we had sex for about a minute and I stood up and says sorry it'll normally last longer than that. So I put myself, fixed myself. She says it's okay I'll no tell anybody. So she, I helped her up, she fixed herself, she took my hand asked me for my phone number and I gave her it. She asked me to be her boyfriend, I says no and carried on walking up the path and ended up in Broad Street. She went up Broad Street and I went down Broad Street and that's basically what happened."

"1. The intake of alcohol as stated by the subject would result in a rapid and substantial increase in blood alcohol levels prior to the alleged incident.

2. Rapid and substantial increases in blood alcohol levels can lead to amnesia (both total and fragmentary).

3. The recall of information by the subject is consistent with alcohol-induced amnesia particularly given the prompting by Police Officers in the previous interviews."

"When initially interviewed by police [the appellant] claimed to be unable to remember events pertaining to the alleged offences. Some thirty-six hours later he claimed that he had recalled events, and indeed gave a detailed account of those events.

There are a number of possible interpretations of this presentation.

1 Mr Urquhart lied when he was initially questioned, as an automatic response to protect himself from saying anything incriminating. Before his next interview he had time to invent material to support his innocence.

2 He was genuinely unable to recall the events about which he was being questioned, realised that this might not sound convincing, and made up a story to cover the facts that he had been given.

3 He was genuinely unable to remember events when questioned on 30 January 2004, and subsequently did recall them and reported them accurately.

It is a matter for the court to decide which of these three possibilities is the truth and I can only comment on whether or not possibility 3 is theoretically possible. There is evidence that at the time of the alleged offence Mr Urquhart had been drinking heavily. The effect of alcohol on memory is well known and it is common knowledge that drinking may cause memory blackouts, in which recall of events during the time that [the] subject was drinking is lost from later recall."

Dr Gillham then reviews some of the scientific literature and concludes "that it is theoretically possible that [the appellant] was being entirely truthful when he was initially interviewed and denied all knowledge of events, and truthful when he subsequently gave a detailed account of them. I cannot comment on the likelihood that he was being truthful."

"NB In the course of the meeting it became apparent that [the appellant] had exchanged mobile telephone numbers with the complainer at the time of the incident. She is alleged to have telephoned his mobile phone to see that it was the real phone. Clearly he didn't answer the phone and it therefore counts as a missed call which he deleted on the same evening. [Counsel] and myself both agree that the phone records of either or [sic] them are unlikely to show a record of this exchange."

The solicitor's manuscript notes, presumably taken in the course of the consultation, appear to read:

"She asked for ph. no - I gave her it. She asked if I would be her boyfr. I said n. She rang my phone to make sure it the right number".

In the margin is noted "Phone Record" and beneath that "N.a was a missed call". A little lower down in the manuscript notes is noted:

"I deleted her number fr. the missed call list. I had no intention of phoning her. A one night thing".

"And you then rang his mobile phone to make sure that he had given you the right number? - No, well I don't know.

And that was the only connection between you and your mobile phone, was to ring his phone to make sure that he had given you the right number because you were keen that he had given the right number so that there would be no trouble contacting him at a later stage? - I don't know."

"The records kept by phone companies have become more comprehensive over the last few years and have been retained for longer, a direct result of legislation such as the Data Retention (EC Directive) Regulations 2007. Further research would be needed to ascertain the exact situation in 2004 and would be complicated by not knowing which phone companies were involved. It is highly likely that call records would have been retained for at least a month and possibly as long as the twelve months which is required practice today. Certainly T-mobile kept records for a year at that time and Orange retained pay-as-you-go phone records for six months."

Consequently, it cannot be said that the relevant telephone records would certainly have been available in November 2004, had they then been sought by those acting for the appellant. We take November 2004 as the relevant date, since it is clear that it was only then that the appellant indicated that the complainer made any telephone call to his mobile telephone.

"As for the defence which is said to have been lacking due to inadequate preparation by the instructing solicitor, there is a complete absence of detail in the papers which have been put before us to show that anything was lacking when the case came before the court for trial which, had the case been prepared more thoroughly, would have been relevant to the appellant's defence. As the advocate-depute pointed out, the question which has to be addressed in an appeal on this ground is not confined to the conduct of the accused's counsel or his solicitor. The critical issue to which the ground of appeal has to be directed is what the effect of that conduct was on the defence. This cannot be discovered unless the appellant is in a position to identify the respects in which his defence was affected by this conduct. Where inadequate preparation is put in issue, as it has been in this case, the argument can take the appellant nowhere unless he can show what information would have been revealed if the preparation of the case had been conducted adequately."

In the present case the appellant does not offer, and we assume is not able, to establish that, had those originally acting for him sought the relevant telephone records in November 2004, those records would have been available; let alone, of course, that the records would have given any confirmation of the appellant's position stated at the consultation in November 2004.