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Full bench to consider jury directions on video evidence

15 May 2017

A full bench of the High Court of Justiciary is to consider the appropriate directions to be given to a jury on how to treat video evidence presented at trial.

Three judges of the Criminal Appeal Court agreed that the law at present is in a "state of uncertainty" that should not be allowed to continue, given the increasing frequency with which video evidence is relied on.

The issue arose in appeals by Justinas Gubinas and Nerijus Radavicius, who were charged, with two co-accused, with the rape and sexual assault of RD at a farmhouse near Fraserburgh. The Crown case was that RD, whi was very drunk, had left a nightclub with the accused thinking she was going to a party but had been taken to the house where she was forced to take more alcohol and then assaulted. Various acts had been recorded on mobile phones. Consent was in issue and the appellants argued among other points that the trial judge had misdirected the jury in failing to direct them that the video evidence should be considered through the testimony of witnesses. RD had accepted that the footage appeared to show consensual activity, while also giving evidence that she was so heavily intoxicated as to be incapable of consenting.

Noting that there were only three Scottish decisions in point, the most recent in 2000, and that they contained conflicting judicial comments on whether the jury were able to make up their own minds about what had been shown, Lady Dorrian, who sat with Lord Brodie and Lord Malcolm, said: "We accept the submission made by counsel for the second appellant that the circumstances in which a jury may examine for themselves the content of a video are ill-defined in our law. We also accept that this is a matter which causes confusion within the profession."

Delivering the opinion of the court, the Lord Justiuce Clerk added: "We consider that it is undesirable that the law in this area should be in a state of uncertainty. We consider that this would be an opportune time for the matter to be reviewed by a larger court, and on this ground of appeal alone, we will put the case out for a hearing before a bench of five judges."

The judges agreed that there was no merit in other grounds of appeal concerning sufficiency of evidence, reasonableness of verdict, and directions on mixed statements.

Click here to view the opinion of the court.

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