Darren Glass v. His Majesty’s Advocate [2025] HCJAC 31

Note of appeal against conviction:- The appellant was convicted after trial of 5 charges:- (charge 1) the rape of T contrary to section 1 of the Sexual Offences (Scotland) Act 2009; (charge 2) a contravention of section 1 of the Domestic Abuse (Scotland) Act 2018 involving S; (charge 4) the rape of S contrary to section 1 of the Sexual Offences (Scotland) Act 2009; (charge 5) the rape of S contrary to section 1 of the Sexual Offences (Scotland) Act 2009; and (charge 6) causing S to look at a sexual image, contrary to section 6 of the Sexual Offences (Scotland) Act 2009. The appellant was sentenced to 8 years imprisonment. The appellant appealed against his conviction in relation to charge 1. The basis upon which the Crown sought their conviction in relation to charges 4 and 5 was by the application of mutual corroboration with charge 1. In relation to charge 1 it could be proved via mutual corroboration using charge 4 or 5 but also by other independent evidence providing corroboration, in particular, a perceived failure by the appellant to deny an accusation of guilt made in the course of a telephone call by the complainer’s mother, L. On behalf of the appellant it was submitted that the trial judge, by failing to direct the jury that they had to be satisfied that the appellant heard the accusation, had misdirected the jury which resulted in a miscarriage of justice. On behalf of the Crown it was submitted that L had given evidence that in a phone call she accused the appellant of raping her daughter and the absence of a response by the appellant was capable of being interpreted as an implied admission and was a matter for the jury. It was further submitted that even if there had been a misdirection it did not result in a miscarriage of justice as there was other evidence available to the jury capable of corroborating the complainer’s account, in particular, the evidence of S in relation to charges 4 and 5 which the jury must have accepted, just as they must have accepted T’s evidence also. Here the court refused the appeal against conviction. The issue was whether the jury should have been directed that they could not regard the appellant’s silence following the accusation unless he had heard the accusation. The court considered that such a direction was unnecessary as it would simply have stated the obvious and no misdirection occurred. In addition, the court considered that the trial judge had dealt with the issue raised on behalf of the appellant that he could not get a word in edgeways during L shouting at him during the call by tailoring a specific direction for the jury, namely:- “...if you accept the interpretation of what happened during that call, as [senior counsel] addressed it to you, then you will not accept that what the accused did or did not say in that call amounted to an admission of guilt by him”. The court considered that the direction given was appropriate and sufficient in the circumstances.