J.H. v. His Majesty’s Advocate [2022] HCJAC 39

Note of appeal against conviction:-On 24 February 2022, following a trial on indictment at the sheriff court, the appellant was convicted after trial of three charges of lewd, indecent and libidinous practices and behaviour towards three complainers (charges 4, 5 and 6). The sheriff sentenced the appellant to 12 months imprisonment in cumulo in respect of charges 4 and 5 and to 18 months imprisonment consecutively in respect of charge 6. The complainers in charges 4 and 5 were sisters aged 7 and between 8 and 12 when the offences took place. The complainer in charge 6 was aged 5 or 6 when the offence was committed. The appellant appealed against his conviction. It was contended on his behalf that given the time interval (around 19 years) between the events of charges 4 and 5 and charge 6, the sheriff ought to have directed the jury that there required to be special, compelling or extraordinary features present before they could convict of charge 6. It was submitted, under reference to Duthie v. HMA 2021 JC 207, that in certain cases there remained the possibility that a direction about special features might be required and that the present was one such case.In Duthie at paragraph 28 the court said:- “...What is essential, in terms of the settled law, which was described in Adam v HM Advocate (at [28]), are similarities in time, character and circumstances such as to demonstrate that the individual incidents are component parts of one course of conduct persistently pursued by the accused. The jury will have to be directed to that effect but, normally, that is all that is required...”. It was submitted on behalf of the appellant that the use of the word “normally” in Duthie indicated that the appeal court had in contemplation that there may be cases where such a direction is necessary and this was such a case. On behalf of the Crown it was submitted that such a direction was unnecessary where the conduct had been particularly idiosyncratic and the issue of the time interval had been referred to in both speeches and no miscarriage of justice had occurred. Here the court refused the appeal. The court stated that what was being said in Duthie at paragraph 28 was that the conventional directions are usually all that is needed whilst recognising that there may be occasions where something requires to be said eg where there are a large number of charges with different categories of offences or the evidence is particularly complex. The court stated here that what was decided in Duthie “put to bed bed once and for all the suggestion that a direction on special features had to be given.”