David Penman v. Her Majesty’s Advocate [2018] HCJAC 71

Note of appeal against conviction:- In March 2018 the appellant was convicted after trial of 11 historic sexual abuse charges concerning conduct by the appellant between 1987 and 1991 against fellow pupils at the Royal School for the Blind in Edinburgh. During the trial the trial judge granted a Crown motion under section 266(4) and (5) of the Criminal Procedure (Scotland) Act 1995 to allow evidence that the appellant had previous convictions to be placed before the jury. The circumstances were that during the appellant’s evidence the Advocate depute put to the appellant in cross-examination:- “That’s a lot of witnesses to come to court and give evidence that’s not true?” to which the appellant stated: “I’ve never been in court so I don’t know in terms of size whether that would be a normal number of witnesses. Nine is quite high in number, yeah.” The Advocate depute, outwith the presence of the jury, submitted that “I’ve never been in court” could only be taken to be a statement of the appellant’s good character there being no need for him to volunteer that information. The informtion was false as the appellant had previously been convicted of offences of a sexual nature which he had pled guilty to in 1993, 2000 and 2009. In making the motion under section 266 the Advocate depute sought to correct that false impression and to lead evidence that he had been convicted on these dates. The trial judge allowed the Advocate depute to do so and thereafter the Advocate depute put to the appellant, in general terms, that he had been convicted, albeit the specific details of his schedule were not put. Here it was submitted on behalf of the appellant that the trial judge had erred in allowing the Advocate depute to cross-examine the appellant on his character, it being submitted that the statement by the appellant did not amount to evidence of the appellant’s own good character but was rather his explanation of never having had a trial before. It was submitted that even where the evidence given can be brought within the terms of the statutory provisions, the admission of evidence of convictions remains a matter of discretion to the trial judge the fundamental considerations being fairness and balance. It was submitted in the present case that the potential prejudice to the appellant was out of proportion to any potential effect of the remark and the reference to the previous convictions should not have been allowed and there had resulted a miscarriage of justice and the appeal should be allowed. On behalf of the Crown it was submitted that the appellant had lied about never having been in court before and it was that, rather than the convictions to which it related, which formed the basis of the use to which the evidence had been put. Given that the matter had not been fully explored it was submitted no miscarriage of justice had occurred. Here the court refused the appeal. The court considered that the evidence given by the appellant did constitute evidence of his own good character. The court did express surprise that the Advocate depute’s question which precipitated the appellant’s response was not objected to and considered that the comment would have been more appropriate as part of a jury speech rather than as a question for the appellant. The court considered that the appellant’s response was specific and unqualified and the court was of the view that the trial judge was correct to interpret it as evidence of the appellant’s own good character. Thereafter the court went on to consider that the trial judge was correct to exercise his discretion and allow the fact of his previous convictions to be led in evidence. The court observed that the reference to the previous convictions was for a limited purpose to show that the appellant’s statement on oath of “I have never been in court” was not true. The court noted that the limited use the Advocate depute made of the previous convictions was solely for issues of credibility and reliability. The court went on to indicate that, even if the trial judge had been wrong to admit the evidence of the appellant’s previous convictions, it could not be said that a miscarriage of justice had resulted, 8 different complainers having given evidence against the appellant and, in addition, the jury returned a discriminating verdict, acquitting him of charge 15 and amending the terms of the libel in another all of which suggested that the admission of the evidence of the appellant’s previous convictions did not have an undue bearing on the jury’s deliberations. The court went on to make some criticisms of the appellant’s representatives at the appeal for a failure to obtemper an order of the court to lodge a written agreed position in relation to the evidential background leading to the section 266 motion and the absence of an adequate explanation for that failure.