James Johnston v. HMA

09 April 2014

Background

On the 15 May 2013, a sheriff and jury convicted the appellant of lewd and libidinous practices in contravention of section 5 of the Sexual Offences (Scotland) Act 1976 and an indecent assault. The latter charge was made by a second complainer. Both complainers spoke in court and the appellant denied their evidence in its entirety. In keeping with the doctrine of mutual corroboration associated with Moorov v HMA, 1930 JC 68, the conviction relied on the credibility and reliability of the two complainers.

Appeal

The defence alleged that the sheriff provided inadequate instructions to the jury, regarding how they should approach the appellant’s evidence and what they should do if they believed the appellant’s evidence or if said evidence made them doubt the appellant’s guilt. If anything said by the appellant raised a reasonable doubt, then, the defence explained, the jury should acquit – the jury also do not need to accept everything the appellant says as true, as long as they have a reasonable doubt. The sheriff failed to make this clear.

Conclusion

The sheriff in question accepted he did not directly educate the jury about the nature of evidence given by the appellant, or how the jury should react to reasonable to doubt produced by this evidence. However, the sheriff was otherwise comprehensive in advising the jury and the jury were well aware that the burden of proof was on the Crown’s case and that any reasonable doubt should lead to the accused’s acquittal. The appeals court did not accept that it was necessary to highlight the need to acquit based on reasonable doubt in such a straightforward case and concluded that the jury was well aware of their responsibilities and had properly interpreted the entire body of evidence relating to the charge. The appeal was accordingly refused.

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