Gavin MacDonald, 52 was sentenced to 27 month imprisonment for sexually assaulting a 24 year old woman. The trial heard that Mr MacDonald had locked the female inside a room, touched and rubbed her inappropriately and penetrated her vagina with his fingers to her injury. Mr MacDonald’s position throughout the trial was that the activity between himself and the complainer was consensual.

Following the evidence, the Sheriff, in addressing the jury, referred to the complainer as a ‘victim’, he instructed the jury to “look objectively at what the proven facts tell you about the interaction between the victim and the other party and their mutual or what understanding they would have had on that understanding about what was happening”. Mr MacDonald was found guilty.

Mr MacDonald’s appeal centred on the assertion that it had been inappropriate for the Sheriff to refer to the complainer as a “victim”. Mr MacDonald had admitted sexual conduct, the issue for the jury was whether or not the complainer had consented or whether or not Mr MacDonald could be said to have had a reasonable belief she was consenting.

The Appeal was heard by Lord Justice General, Lord Carloway, Lord Turnbull and Lord Pentland. In delivering the opinion, Lord Carloway stated “The court is not satisfied that the (use of the word victim by the trial Sheriff) has led to any miscarriage of justice. The Sheriff did not use the word in a manner which would have suggested that the crimes libelled had been committed or that the complainer was in fact a victim. It is clear from the context in which the words appear that the reference to a ‘victim’ were lapsus linguae. It would have been clear to the jury that the task which they had to undertake was a determination of whether the events had occurred as described by the complainer”. For this reason, the appeal was refused.

Lord Carloway did however go on to note that the case itself raised a number of issues in relation to the conduct of sexual offences trials in general, commenting the matter in which Mr MacDonald’s original trial was conducted raised “real causes of concern”. Referring specifically to sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995, Lord Carloway commented “the court has made repeated efforts to ensure that the ‘rape shield’ provisions of section 274 and 275 are properly adhered to by trial courts. It has explained the import of these sections in clear terms. It has also given definitive guidance on the duties of the judge to control the tone and content of cross examination especially in sexual offences cases. The importance of this to the proper administration of justice cannot be underestimated.”

Lord Carloway’s comments relate to the cross examination of the complainer in the trial. Many of the questions put to her had not been covered by the Defence s.275 application and many others were described as Lord Carloway as “irrelevancies” which “ought to have been objected to and excluded”. Concluding, Lord Carloway stated “This trial was conducted in a manner which flew in the face of evidence and procedure, not only the rape shield provisions but also the common law”. He went on, “During her cross examination, this complainer was subjected to repetitive and at times irrelevant questioning.  She became extremely distressed and rightly so. The court did nothing to intervene. Were this to be repeated, the situation in sexual offences trials would be unsustainable.”