The appellant was convicted of three charges of lewd, indecent and libidinous practices. The complainers in two of the charges were sisters and were aged between 7 and 12 years old at the time of the offences. The third complainer was 5 or 6 years old when the offence occurred.
The complainers told the court that the appellant had lay on top of them and pressed his private parts against theirs whilst moving up and down. It was not disputed that the jury were entitled to convict the appellant of all three charges on the basis of mutual corroboration.
However, it was argued that as there was a 19-year time gap between the offences against the first two complainers and the third complainer, the sheriff ought to have directed the jury that there required to be special, compelling or extraordinary features before convicting the appellant of the charge against the third complainer. It was submitted that as the sheriff had not specifically directed the jury in this way, it amounted to a material misdirection.
Counsel for the appellant referred to the case of Duthie v HM Advocate (2021) which stated that ‘normally’ the jury would only be directed that there has to be similarities in time, character and circumstance. However, in cases where there is a lengthy time gap between the allegations it was argued that this was a case where further direction was necessary.
In delivering the opinion of the court, Lord Matthews stated: “It does not mean, and was not intended to mean, that there will still be some cases with a lengthy time gap where a direction on special features has to be given on account of that factor. It is made explicit in Duthie that judges or sheriffs may elect to give such a direction but the words ‘it is not essential’ could not themselves be clearer.”
In concluding he said: “The appellant’s submissions rely on a proposition of law which is the polar opposite to that which was decided in Duthie, where the intention was to put to bed once and for all the suggestion that a direction on special features had to be given.”
The appeal was therefore refused.