J.B. v. His Majesty’s Advocate [2025] HCJAC 1

Note of appeal against conviction:- On 26 April 2024, following a trial at the high court, the appellant was convicted of two charges:- (1) the rape of his wife on various occasions between 1 January 2002 and 31 October 2003 in that whilst she was asleep, he removed her lower clothing, lay on top of her and raped her contrary to section 1 of the Sexual Offences (Scotland) Act 2009; and (2) the sexual assault and rape of his daughter, on various occasions between 1 July 2012 and 31 December 2013 contrary to sections 1, 2 and 3 of the Sexual Offences (Scotland) Act 2009. On 23 May 2024, following the obtaining of a Criminal Justice Social Work Report, the appellant was sentenced to 4 years imprisonment in relation to charge 1 and 7 years imprisonment on charge 2 to run concurrently. The appellant appealed against his conviction it being contended that the Crown, by failing to disclose the first complainer’s Victim Impact Statement in advance of the trial, had failed in their duty in terms of Part 6 of the Criminal Justice and Licensing (Scotland) Act 2010 and the Code of Practice issued by the Lord Advocate under section 164 of the Act to disclose material which, it was said, contained a material inconsistency between what was included in the VIS and the complainer’s evidence. The VIS contained inter alia:- “…Whilst I was married to [the appellant] I would awaken some nights in the last year of my marriage to him, on top of me trying to initiate sex…” It was submitted on behalf of the appellant that the above aspect of the VIS was a position given by the complainer which was materially different to what she had said in evidence and the availability of the VIS would have provided the defence with material which would have undermined the evidence of the complainer and materially supported the evidence of the appellant. It was further submitted that the failure by the Crown to disclose the VIS deprived the defence of the opportunity to cross-examine the complainer about it and resulted in a miscarriage of justice. On behalf of the Crown it was submitted that the VIS had to be considered as a whole and the material referred to added nothing to what was already available to the defence and the particular sentence referred to could not be said to be inconsistent with what the complainer had said in evidence. It was further submitted that even if the VIS was disclosable the failure to do so had not resulted in a miscarriage of justice. Here the court refused the appeal. The court stated that whilst the VIS need not be disclosed material information within any VIS that meets the test set out in section 121 of the Criminal Justice and Licensing (Scotland) Act 2010 ought to be. The court noted that whilst the sentence referred to made no reference to penetration when the VIS was read in its entirety and the sentence was read in context with the remainder of the VIS the court considered that if the defence had put the sentence referred to to the complainer in cross-examination it is likely to have back fired on the appellant as the Crown would have been entitled to lead other aspects of the VIS which would have bolstered her credibility. The court considered that the VIS did not materially undermine the Crown case or advance the defence case and was not disclosable. The court observed that the defence had material available to it showing that the complainer had said on a different occasion that the appellant was never sexually or physically abusive towards her. The court went on to state that even if it had been disclosed there was no realistic prospect of the verdict being any different and there was no miscarriage of justice.