APPEAL AGAINST CONVICTION AND SENTENCE BY ANDREW REILLY AGAINST HER MAJESTY'S ADVOCATE
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2017] HCJAC 5
HCA/2016/000280/XC
Lady Paton
Lord Malcolm
Lord Turnbull
OPINION OF THE COURT
delivered by LORD TURNBULL
in
APPEAL AGAINST CONVICTION
by
ANDREW REILLY
Appellant
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: Findlater; Faculty Services Limited, Edinburgh, for Muir Myles Laverty, Dundee
Respondent: Niven-Smith AD; Crown Agent
8 February 2017
Introduction
[1] This appeal concerns the extent to which the doctrine of mutual corroboration can properly be applied in circumstances where there is a long lapse of time between the relevant charges. On 18 January 2016, at the High Court in Aberdeen, the appellant was convicted after trial of 11 charges involving offences of disorderly conduct, physical abuse and sexual abuse. In addition he was convicted of one offence contrary to the Animal Health and Welfare (Scotland) Act 2006, charge number (7) on the indictment.
[2] Two of the charges of which the appellant was convicted concerned behaviour directed towards dogs that were family pets (charges (4) and (7)). The remaining charges all concerned behaviour directed towards women who were in relationships with the appellant at the time the offences were committed.
[3] The appellant was granted leave to appeal against conviction in respect of charges (1), (2), (3), (5), (6), (8), (9) and (11). Those charges were in the following terms:
“(1) on various occasions between 7 February 1986 and 15 July 1990, both dates inclusive, at [addresses], all Dundee, you […] did assault RG […] your then partner, and did repeatedly shout, swear and utter threats of violence towards her, punch, kick and scratch her on the head and body, seize her by the hair and pull her hair, seize hold of her body and drag her body around and, in particular,
(a) between 7 February 1986 and 1 April 1989 at [an address], Dundee you did present a firearm or imitation firearm and threaten to shoot her;
(b) between 7 February 1986 and 1 April 1989 at [an address], Dundee you did seize her by the hair, throw her to the ground, repeatedly punch and kick her on the head and body, seize her by her leg, pull her into a bedroom, throw her onto a bed, shout offensive remarks at her and utter threats of violence towards her, all to her injury;
(c) between 7 February 1986 and 1 April 1989 at [an address], Dundee you did strike her on the body with a knife, utter threats of violence towards her, all to her injury and permanent disfigurement;
(d) between 7 February 1986 and 1 April 1989 at [an address], Dundee you did force entry to the locked bathroom in said premises, seize her by the hair, repeatedly strike her head against a bath, repeatedly push her head into water and hold her head under water, utter threats to drown her, seize her on the body and shake her violently, all to her injury and danger of life;
(e) between 1 April 1989 and 15 July 1990 at [an address], Dundee you did whilst acting with another, seize and pull her by the hair and repeatedly punch and kick her on the head and body; and
(f) between 1 April 1989 and 15 July 1990 at [an address], Dundee you did throw a plate of hot food at her head and utter offensive remarks at her, to her injury;
(2) between 1 April 1989 and 15 July 1990, both dates inclusive, at [an address], Dundee, you […] did assault RG […] your then partner, and did forcibly remove her clothing, seize her legs and pull her towards you, force her legs apart, lie on top of her, seize hold of her by her arms and restrain her by holding her arms above her head, kiss her, penetrate her vagina with your penis, touch her vagina, penetrate her mouth with your penis, touch her breasts, cause her to vomit and did rape her to her injury;
(3) between 1 April 2005 and 1 September 2005, both dates inclusive, at [an address], Dundee, you […] did assault PB […] your then partner, and did repeatedly punch her on the arm, all to her injury;
(5) between 1 January 2010 and 8 April 2010, both dates inclusive, at [an address], Dundee, you […] did assault PB […] your then partner, and seize her by the body, pull her into a bedroom, throw her onto a bed, lie on top of her, pull her jeans and underwear down to her knees, and force her legs apart, penetrate her vagina with your penis and did rape her;
(6) on an occasion between 1 December 2014 and 26 December 2014, both dates inclusive, at [an address], Dundee, you […] did assault DH […] your then partner, seize her head, penetrate her mouth with your penis, cause her to almost vomit and you did thus rape her: CONTRARY to Section 1 of the Sexual Offences (Scotland) Act 2009;
(008) on various occasions between 1 September 2014 and 27 December 2014, both dates inclusive, at [addresses], both Dundee, you […] did assault DH […] your then partner, and did pull and drag her by the hair, punch and kick her on the head and body and, in particular,
(a) between 1 September 2014 and 26 December 2014 at [an address], Dundee you did seize her by her hair, pull her to the ground, pull her, repeatedly kick and punch her on the head and body;
(b) between 1 September 2014 and 26 December 2014 at [an address], Dundee you did strike her on the body with a baseball bat, repeatedly kick and punch her on the body;
(c) between 1 September 2014 and 26 December 2014 at [an address], Dundee you did lock her in said premises and detain her against her will and did assault her, seize her by her neck and pin her against a wall, seize her on the body and attempt to push her down a flight of stairs, shout at her and push her on the body;
(d) on 29 October 2014 at [an address], Dundee you did repeatedly strike her to the head and body with a wooden cabinet to her injury and permanent disfigurement;
(e) between 1 November 2014 and 26 December 2014 at [an address], Dundee you did seize her on the body, throw her onto a bed, sit on top of her, place your fingers into her mouth and pull her jaw and lips and repeatedly stamp on her body, all to her injury;
(f) between 1 November 2014 and 26 December 2014 at [an address], Dundee you did strike her on her eye with a key or similar implement to her injury and permanent disfigurement;
(g) between 1 November 2014 and 26 December 2014 at [an address], Dundee you did present a knife at her throat and her hand in a threat to strike same;
(h) between 1 November 2014 and 26 December 2014 at [an address], Dundee you did brandish a knife at her and threaten to stab her; and
(i) on 27 December 2014 at [an address], Dundee you did punch her on the head and drive a Ford Focus motor car, registration mark […], at her, in an attempt to strike her causing her to take evasive action to avoid being struck by said motor car;
(009) between 1 September 2014 and 26 December 2014, both dates inclusive, at [an address], Dundee, you […] did sexually assault DH […] your then partner, in that you did bite her on her genitals to her injury: CONTRARY to Section 3 of the Sexual Offences (Scotland) Act 2009;
and
(11) between 1 December 2014 and 26 December 2014, both dates inclusive, at [an address], Dundee, you […] did assault DH […] your then partner, lie on top of her, sit on her, pull her pyjama bottoms down, force her legs apart, force your legs between her legs, penetrate her vagina with your penis and you did thus rape her: CONTRARY to Section 1 of the Sexual Offences (Scotland) Act 2009.”
It was accepted that parts (e) and (i) of charge 8 were each independently established and they were excluded from the appeal.
Background
[4] The Crown approached the case on the basis that it was necessary to find corroboration for each of the charges mentioned by application of the doctrine of mutual corroboration. In presenting the case to the jury the Crown divided the charges into two separate categories or chapters:
Chapter One, the sexual offences, namely: charge (2) a single incident concerning the complainer RG, charge (5) a single incident concerning the complainer PB, and charges (6), (9) and (11) all of which concerned the complainer DH.
Chapter Two, the physical assaults, namely: charge (1) repeated conduct concerning the complainer RG, charge (3) a single incident concerning the complainer PB and charge (8) repeated conduct concerning the complainer DH.
[5] The Crown did not suggest to the jury that the doctrine of mutual corroboration could be applied across the two chapters and the trial judge gave directions in line with the approach taken by the Crown.
[6] Accordingly, on the allegations made in respect of the sexual offences, the lapse in time between charge (2) and charge (5) was about 20 years, the lapse in time between charge (2) and charges (6), (9) and (11) was about 24 years and the lapse in time between charge (5) and charges (6), (9) and (11) was about 4 ½ years.
[7] In relation to the physical assaults, the lapse in time between charge (1) and charge (3) was about 15 years, the lapse of time between charge (1) and charge (8) was about 24 years and the lapse of time between charge (3) and charge (8) was about 9 years.
[8] The trial judge directed the jury that there was sufficient evidence to permit them to convict on each of the crimes within each chapter on the application of the doctrine of mutual corroboration, if they were satisfied that it should be applied. At the trial defence counsel did not make any submission of no case to answer.
Submissions
Appellant
[9] On behalf of the appellant, Mr Findlater, who had not appeared for him at trial, submitted that the Crown had been correct to approach the case in the compartmentalised way in which it did. He submitted that the nature of the charges within each chapter was different, one from the other, to the extent that the doctrine of mutual corroboration would not permit corroboration of any of the sexual charges to be found in the evidence as to the commission of the physical assaults, and vice versa. Taking this approach, he submitted that the principal issue in the appeal concerned the passage of time between the respective charges within each chapter. In order to set the background for the requirements of the doctrine of mutual corroboration he drew attention to what had been said in the case of Moorov v HM Advocate 1930 JC 68, in particular by the Lord Justice General at page 73 and by Lord Sands at page 89, and to what was said in the case of MR v HM Advocate 2013 JC 212 by the Lord Justice-Clerk at page 219.
[10] Turning to the particular importance of the passage of time, Mr Findlater submitted that the doctrine of mutual corroboration was not available in circumstances where a long lapse of time was present unless the evidence also disclosed similarities of an unusual, striking or exceptional nature such as would be capable of demonstrating that each offence was indeed part of a course of criminal conduct persistently pursued by the accused person, despite the lengthy lapse of time. He drew attention to what had been said in the cases of Tudhope v Hazleton 1985 SLT 209, Dodds v HM Advocate 2003 JC 8, AK v HM Advocate 2012 JC 74 and AS v HM Advocate 2015 SCCR 62.
[11] In identifying what the evidence demonstrated about the appellant’s conduct in the present case Mr Findlater drew our attention to the content of the trial judge’s report and to the directions he had given to the jury concerning the evidence which the Crown relied on. The similarities which the trial judge identified in respect of the physical assaults were: that the accused was in a relationship with each complainer at the relevant time, that the assaults were unprovoked, that they each happened out of the blue, that they reflected an abusive and controlling relationship and that the appellant’s initial behaviour towards each complainer in the early stages of the relationship had been fine but had later turned to verbal and physical abuse. The similarities which the trial judge had identified in respect of the sexual assaults were: that each complainer was in a relationship with the accused at the time, each event started at his whim and was out of the blue, he had been rebuffed on each occasion and this was followed by each complainer being restrained and by her clothes being pulled down, that their legs had then been parted, that in two cases there was oral penetration and that in the aftermath of each event there had been a glibness in the accused’s response.
[12] It was submitted that this evidence disclosed no features which could be characterised as having the necessary exceptional or unusual quality such as would permit the application of the doctrine over such lengthy periods of time as featured in the present case. In so far as the sexual offences were concerned it was submitted that what was described in evidence was little more than the mechanical components of most sexual assaults.
[13] Separately, it was submitted that whilst there was less of a time lapse between the sexual offences which featured in charges (5), (6), (9) and (11), the conduct which was described in those charges did not display the necessary similarities as to permit the doctrine to be applied. Charge (5) related to one instance of vaginal rape perpetrated during the course of a relationship which lasted in the region of five years, although the appellant did not live with that complainer. On the other hand, the remaining charges related to different conduct perpetrated during a period of around four months in the context of a relationship in which the complainer and the appellant lived together.
[14] The final argument advanced on behalf of the appellant concerned a submission that the trial judge had misdirected the jury by omission. It was submitted that if, contrary to the other submissions, the doctrine of mutual corroboration was available on the basis of the evidence led, then looking to the time gap between any of the events spoken to by the complainer RG, as compared with any of the events spoken to by the complainer DH, it became obvious that the evidence of the middle complainer PB was necessary in order to provide evidence of a course of criminal conduct systematically pursued by the appellant. The consequence was that the trial judge ought to have directed the jury that they could not convict on any of the charges within either chapter unless they accepted the evidence of the complainer PB and were also prepared to convict on the charges to which she spoke. In other words, the submission was that the evidence of this complainer was essential to the case and that in the absence of such a direction the jurors were left with the impression that the Crown’s case was stronger than it was.
Crown
[15] Despite the manner in which the Crown presented the case at trial, the advocate depute submitted before us that all of the behaviour complained of arose in the context of domestic relationships which the appellant had entered into with different women. He submitted that this conduct therefore ought to be viewed as a campaign of domestic abuse. Viewed in this way, it was submitted that it was artificial to separate out sexual misconduct by the appellant from physical assaults by him. What the court had to take cognizance of was the many different forms of abusive conduct which can be displayed as part of the campaign of terror which characterises domestic abuse. In this context the advocate depute referred us to what had been said by the court in KH v HM Advocate 2015 SCCR 242 at page 252 and in the subsequent case of McAskill v HMA [2016] HCJAC 64.
[16] In any event though, the advocate depute submitted that the trial judge had been correct in the directions which he had given. No maximum time limit could be laid down beyond which the doctrine could not be applied ‑ Dodds v HMA. In order to vouch the suitability of the approach taken by the trial judge the advocate depute drew attention to the conduct as specified in charges (2) and (6), which he described as the polar extremes of the charges concerning sexual offences. Each was a charge of sexual assault which included the violent penetration of the complainer’s mouth by the accused’s penis, with the result that each complainer was caused to vomit or to almost vomit. Despite the separation in time of some 24 years between these two events, the advocate depute’s submission was that the appellant’s behaviour in each case could be said to display conduct which was “more than usual”. It therefore fell to be described as striking or extraordinary and made the significant time gap less important. Overall these, along with the other features listed by the trial judge, were said to be sufficient to permit the application of the doctrine of mutual corroboration as between charges (2) and (6). It followed that the presence of charges (3) and (5) concerning the intervening complainer PB assisted further in the submission that the doctrine was available in all of the circumstances of this case.
Discussion
[17] In giving the opinion of the court in the recent full bench decision of MR v HM Advocate the then Lord Justice-Clerk approved of the observations made by the Lord Justice‑General in the case of B v HM Advocate 2009 JC 88 concerning the importance, in understanding the application of the doctrine of mutual corroboration, of appreciating that the law has moved on since 1930 when the doctrine was enshrined in the case of Moorov. The Lord Justice‑Clerk observed that the law had moved on:
“.. in an attempt to keep pace with modern societal understanding of sexual and other conduct and, in particular, what are perceived to be characteristic links between the perpetration of different types of sexual and physical abuse especially, but not exclusively (our emphasis), of children and young persons.”
It was perhaps with these observations in mind that, in giving the opinion of the court in the subsequent case of McAskill v HM Advocate, the (by then) Lord Justice‑General held that charges of sexual offences ranging from indecent assault to rape could be seen as charges containing sexual violence, with the result that they could properly be taken along with other charges of repeated physical violence, and threats of violence, to be viewed in totality as reflecting a course of sustained abuse against a partner in a domestic setting designed within a context of jealousy to humiliate and control. It may well be therefore that the advocate depute was correct in submitting that, in appropriate circumstances, the proper approach is to see an accumulation of violent and sexual behaviour directed against different partners as reflecting an underlying course of conduct of domestic abuse. We will come to consider whether that approach can properly be taken in the present case later.
[18] However, having drawn attention to the fact that the law has moved on since the case of Moorov was decided, the court in MR v HM Advocate explained, in paragraph 20, that the correct approach was as follows:
“What the court is looking for are the conventional similarities in time, place and circumstances in the behaviour proved in terms of the libel (see NKS v HM Advocate, Lord MacLean, delivering the opinion of the court, para 10) such as demonstrate that the individual incidents are component parts of one course of criminal conduct persistently pursued by the accused (Ogg v HM Advocate, Lord Justice-Clerk (Aitchison), p158; AK v HM Advocate, Lord Justice-Clerk (Gill) para 10).”
This immediately brings into focus the question of whether the circumstances of the present case, with a lengthy lapse of time between the charges, can nevertheless be said to display the “conventional similarities” such as demonstrate that the individual incidents are component parts of one course of criminal conduct persistently pursued by the accused.
The Importance of the Inter-Relation of Time
[19] In the case of Moorov itself the judges were careful to identify that similarity in character as between the offences charged was not of itself sufficient. There required to be what the Lord Justice‑Clerk described as “some sort of nexus which binds the crimes together”. In looking to see whether this nexus, or underlying unity, was disclosed in the evidence the interrelation of time was seen as having an important part to play. As it was put by Lord Sands at page 89:
“This is an important and, in some aspects, a vital consideration. This results from the quality of the acts as evidence of a ‘course of conduct’. A ‘course’ involves some continuity. Acts isolated by a long period of time do not make a course of conduct.”
The importance of continuity was therefore recognised, although it was also observed that the question must always be one of circumstances. Nevertheless, in coming to their conclusions the majority of the judges in Moorov held that the period of 4 years which had elapsed between the first and the remainder of the assault charges was too long a period and that the evidence was insufficient to permit that first charge to be corroborated by application of the doctrine. On many occasions over the years which followed this decision the court was asked to revisit the question of the impact of a lapse of time. So in the case of Ogg v HM Advocate 1938 JC 152 an interval of 14 months was held to be too long to permit the application of the doctrine, in HM Advocate v Cox 1962 JC 27 a period of three years was held to be too long to permit its application, in McHardy v HM Advocate 1982 SCCR 582 a period of 4 ½ years was held to be too long and in Russell v HM Advocate 1990 JC 177 a period of 3 ½ years was held to be too long to enable the doctrine to apply. In Russell the court once again observed that no hard and fast rule could be laid down so far as time was concerned but found it significant that no case could be identified in which the doctrine had been applied in circumstances where there was an interval of 3 years or more between two similar offences. Even as late as 1995, in the case of Turner v Scott 1995 JC 150, the court decided that a period of approaching 3 years was just within the borderline of the principle when there were two charges with very similar circumstances.
[20] By the time of the decision of the court in Dodds v HM Advocate the notion that there might be some upper time limit beyond which the doctrine could not apply had finally run its course. In that case it was firmly stated that it was impossible for the court to lay down any maximum period of time in relation to the application of the doctrine. In arriving at this decision each member of the court drew on what had earlier been said by Lord Justice‑Clerk Wheatley in Tudhope v Hazelton. At page 11 the Lord Justice‑Clerk (Gill) put it in this way:
“The extent of the period of time within which a Moorov similarity can be applied is not and cannot be fixed by rule of law. If the circumstances of the commission of two crimes are of particularly unusual similarity, it may be that corroboration can be found to exist even if the charges are separated by a long period of time.”
At page 12, Lord Kirkwood observed that the time factor can be of considerable importance in determining whether there has been shown to have been a course of criminal conduct and said:
“What can be said is that the more unusual and striking are the similarities between the offences founded on by the Crown, then the greater the latitude in relation to time that may be permitted. However, the over-riding consideration will be whether the evidence as a whole establishes that the offences constituted a course of criminal conduct on the part of the accused.”
At page 25, in giving his opinion, Lord Osborne said this:
“The element of time is one of those circumstances which require to be considered in its application. Whether any particular period of time is or is not too great for the application of the doctrine must depend on the particular circumstances of the case involved and the force of the other elements in the criterion.”
[21] Following this final rejection of the notion of an upper time limit the court has in very recent years considered very long lapses of time in a number of other cases and has assessed the impact of that circumstance by an examination of the force of the other elements in the criterion. In AK v HM Advocate the court was dealing with a lapse of time between two charges which was in the order of 13 years and 10 months which, at the time, was described as a far greater interval than any that the court had previously considered in a Moorov appeal. In giving his opinion at paragraphs [14] and [15], with which the other judges agreed, the Lord Justice‑Clerk (Gill) said:
“… where the interval is a long one, it is necessary to consider whether there are any special features in the evidence that none the less make the similarities compelling (Dodds v HM Advocate; Stewart v HM Advocate)…
The question then is whether there is, as the trial judge has put it, some extraordinary feature in the evidence that could be said to change the whole complexion of the Crown case and entitle the jury to conclude that the evidence considered as a whole disclosed a course of conduct, notwithstanding the lengthy interval to which I have referred.”
In AS v HM Advocate 2015 SCCR 62 the court considered the application of the doctrine between charges which were separated by a minimum period of 18 years. In giving the opinion of the court, at paragraph [10], the Lord Justice-Clerk (Carloway) said this:
“The particular relevance of a significant time gap between offences can only be determined in light of all the circumstances. The more similar the conduct is in terms of character, the less important a significant time gap may be (Moorov v HM Advocate, Lord Sands at p. 88; Stewart v HM Advocate (LJC (Gill) at paras 23 and 24)). Compelling similarities will merit consideration of the whole circumstances by the jury, even where there has been a substantial interval of time (AK v HM Advocate (LJC (Gill) at para. 14))”
[22] In each of these two cases special features were identified which made the similarities sufficiently compelling to permit the application of the doctrine, despite the lengthy lapses of time. In AK there was evidence of things said by the appellant to the second complainer which were strongly indicative of him thinking that he was carrying on from where he left off with the first complainer. In AS the appellant had engaged in a course of conduct with his own two children and subsequently, when they were adults, with his granddaughter involving what the court described as a generational interval.
[23] Different results have occurred in other cases though. In KH v HM Advocate 2015 SCCR 242 the court considered the application of the doctrine as between a single charge of rape involving one complainer and a further charge involving two instances of rape with a second complainer, with each of the charges being separated by a period of 8 years. Each complainer had been in a relationship with the appellant at the time. In giving the opinion of the court at paragraph [28] Lord Brodie said this:
“Long lapse of time does not preclude the finding of sufficient similarity between two incidents to infer a course of conduct: Dodds v HM Advocate at pp. 845 and 857, but it is very relevant. Where the interval is a long one it is necessary to consider whether there are any extraordinary features in the evidence that none the less make the similarities compelling: K v HM Advocate at para. 14”
In RF v HM Advocate 2016 SCCR 319 the court considered the application of the doctrine concerning charges which the Crown submitted were eloquent of an underlying intent to obtain sexual gratification from vulnerable young female family members irrespective of their wishes. The relevant time gap between the charges which the court was concerned with on appeal was around 10 or 11 years. In giving the opinion of the court, at paragraph [22] Lady Smith said this:
“… it is clear from the opinions in K and H that where there is a long lapse of time, the features required are those which can properly be described as ‘special’ or ‘extraordinary’ so as to render any similarities ‘compelling’. It is not enough that a general description or characterisation applicable to all the charges may be arrived at. Something more is required--something special or extraordinary that casts the similarities in such a light as to demonstrate that they can properly be regarded as evidence of the requisite underlying unity of intent.”
[24] In neither of these two cases did the court consider that there were any special or extraordinary features, or compelling points of similarity. In each case the court concluded that the jury had not been entitled to infer the necessary underlying unity of intent or purpose which is the pre-requisite to the application of the doctrine of mutual corroboration. In RF one of the features which weighed with the court was that there had been two other children born into the appellant’s household and no allegation that either of them had been sexually abused by the appellant, and thus the time gap could not be explained by intervening lack of opportunity.
The Circumstances of the Present Case
[25] Returning to the circumstances of the present case it may be useful to summarise what the evidence disclosed.
[26] The appellant was in a relationship with the complainer RG between around early 1986 and the middle of 1990. During that period he physically assaulted her repeatedly and in a variety of different ways. On one occasion, on a date between April 1989 and July 1990, he raped her during the course of which he also penetrated her mouth with his penis causing her to vomit.
[27] By April 2005 he had commenced a relationship with PB, which subsisted for around five years. On one occasion, in the first few months of that relationship, he assaulted her by repeatedly punching her on the arm. On a second occasion, in the region of five years later, he raped her.
[28] By September 2014 he had come to be in a relationship with DH. On various occasions over the next three months he assaulted her in a variety of different ways. On two occasions in December of that year he raped her, one of these comprising oral penetration causing the complainer to almost vomit. On a separate occasion he committed a sexual assault by biting her on her genitals.
[29] At the commencement of the appellant’s relationship with RG he was aged 18. The evidence at trial did not disclose whether or not this was his first relationship and nor did it disclose whether he entered into any other domestic relationships, or had any other partners, in the 15 years which elapsed between the end of this relationship and the start of his relationship with PB, by which time he was aged 37. Nor did the evidence disclose whether he had any further relationships or partners in the four years between the end of his relationship with PB and the commencement of his relationship with DH, when he was aged about 47 years old.
[30] The various charges of which the appellant was convicted therefore concerned behaviour on his part from when he was aged 18 years old until aged 47.
Domestic Abuse as the Appellant’s Course of Conduct
[31] What is meant by domestic abuse is a question which is likely to produce different answers according to who is asked to respond. In the Scottish Government’s Consultation Paper on “A Criminal Offence of Domestic Abuse”, published in December 2015, the following observations were made:
“3.2 The exact point at which behaviour that might be considered “controlling” should result in a breach of the criminal law, or what amounts to “coercive” behaviour, are issues on which there will understandably be a range of views. While some behaviour is of a kind that any reasonable person would consider it abusive, such as assault or threats of violence, the point at which, for example, belittling comments, threats made in the heat of an argument or an unequal approach to financial decision-making can be said to amount to psychological abuse or coercive and controlling behaviour is one on which there will be a range of opinion, and which may depend on, for example, the wider context in which the behaviour occurs.
3.3 Providing for an offence of this nature in a way that has the necessary degree of legal certainty – i.e. that is sufficiently precise that the courts will be able to give effective meaning to it and clear enough to enable people to know what behaviour is unlawful - is challenging.”
In his paper published in October 2016 titled “The Creation of A Specific Offence of Domestic Abuse –Proposed Associated Reforms to Criminal Procedure” the Cabinet Secretary for Justice explained:
“That is why we are going to legislate in this Parliamentary year to create a new domestic abuse offence. This offence, which was consulted upon between December 2015 and April 2016, will criminalise the complex coercive and controlling behaviour that for many victims is their experience of domestic abuse.”
[32] The legal definition of domestic abuse in the context of the criminal law will therefore be provided in due course. Nevertheless, we can begin to examine the advocate depute’s submission that the appellant’s conduct throughout should be seen as manifestations of a campaign of domestic abuse by looking to the evidence of the first complainer RG. We can see easily enough that the various physical assaults perpetrated against her are eloquent of conduct which most people would describe as domestic abuse. We also agree that it might be possible to see the single incident of sexual violence perpetrated during the four years of that relationship as falling into a category of domestic abuse, although whether this would be seen as part of the same campaign or not is a less straightforward proposition.
[33] Turning to the evidence given by the complainer DH, we also agree that the regular physical assaults which she spoke to were eloquent of what might be called domestic abuse. In her case there were also repeated and varied acts of sexual violence, all interspersed amongst the other violent behaviour to which she was subjected so as more easily to permit a conclusion that all of the appellant’s conduct towards her was of a generally demeaning, coercive and abusive sort.
[34] The Crown’s submission becomes weak though when we move on to consider the charges concerning the evidence given by the complainer PB. In her evidence she described a single act of physical violence perpetrated at some point between April and September 2005 in which the appellant repeatedly punched her on the arm (charge (3)). In addition to this she described a single act of rape perpetrated between January and April 2010 (charge (5)). We do not think that two such distinct instances of violent conduct, separated by nearly 5 years, match the advocate depute’s description of a campaign of terror such as would characterise domestic abuse.
[35] We do not therefore consider that the advocate depute was well founded in his submission that all of the appellant’s conduct should be seen as a single campaign of domestic abuse, as he defined it. Nor do we agree with his implicit argument that both the trial advocate depute and the trial judge had been wrong to separate the behaviour described in evidence into different chapters. Even apart from the difficulty in fitting the evidence of the complainer PB into the submission advanced, the question of the extent to which evidence of physical assaults can support evidence of sexual assaults for the purposes of the doctrine of mutual corroboration remains uncertain. The traditional view has been that the similarities necessary must relate to the alleged criminal conduct, not just to the motivation or mental element. As was said at paragraph 35 in KH:
“The legal perspective has been to view rape as a significant and very serious offence, having a different quality from assaults, even serious assaults, which lack an obvious sexual element.”
[36] In any event, even if the advocate depute’s submission was well founded, and it was feasible to apply the doctrine of mutual corroboration across all of the evidence of the appellant’s conduct towards all of his partners, there would remain a time lapse of almost 15 years between the last episode of any form of violent conduct against RG and the first episode of any form of violence against PB.
The Effect of the Time Lapse in the Present Case
[37] For the reasons which we have given we are satisfied that the trial judge was correct to approach the application of the doctrine of mutual corroboration by separating the evidence in relation to the physical assaults and the sexual assaults into two separate categories or chapters.
THE SEXUAL OFFENCES
[38] The period of time separating charge (2) and charge (5) was about 20 years. By any description or test this is a very long period. The period between charge (2) and charges (6), (9) and (11) is even longer. As we have noted, at one point in his submissions the advocate depute sought to suggest that charges (2) and (6) each displayed conduct which was “more than usual”, and would therefore provide the sort of compelling similarity which would permit such a long time gap to be bridged. The difficulty which he immediately acknowledged though was the suggestion that two such acts, separated by 24 years, could constitute evidence of conduct which was “persistently” pursued.
[39] In our opinion this is a difficulty which pervades much of the Crown’s submission. Looking first to the question of whether charge (2) could be corroborated by the evidence led in support of charges (5), (6), (9) and (11), we require to consider all the circumstances. In our view, the similarities in the conduct relied upon by the Crown were in reality no more than the conventional sort of similarities which the court would be looking for in considering whether the doctrine of mutual corroboration could be applied. No extraordinary or special features are disclosed. The advocate depute was unable to contend that the appellant had no other partners in the intervening period. The Crown could not therefore argue absence of opportunity and the time lapse remained unexplained. As was said in MR the court is looking for the conventional similarities such as demonstrate (our emphasis) that the individual incidents are component parts of one course of criminal conduct persistently pursued by the accused. What is missing in the present case, in our view, is evidence of continuity, such as is necessary to distinguish between isolated acts and a course of conduct which is persisted in. For these reasons we accept the submission advanced on behalf of the appellant to the extent that we agree that there was insufficient evidence available to provide corroboration of the evidence led in support of charge (2).
[40] The remaining sexual offences were those spoken to by the complainers PB and DH (charges (5), (6), (9) and (11)). We reject Mr Findlater’s submission that there was insufficient by way of similarity to permit the evidence led in support of these charges to provide mutual corroboration. In our view the similarities identified by the trial judge were sufficient for this purpose. These charges were separated by a period of around 4 ½ years. It is correct to note that in the case of Stewart v HM Advocate 2007 SCCR 303 the court treated a time lapse of 4 years as a long period requiring the presence of some special feature making the similarities which were present compelling. There is though no fixed period of time lapse beyond which it will be necessary to identify the existence of special features in the evidence. Each case will always turn on its own facts and circumstances. Our own experience of cases involving the application of the doctrine in more recent years leads us to think that time lapses of this order feature with greater regularity than they did in the past. In the case of Cannell v HM Advocate 2009 SCCR 207 at paragraph 31 the court made the following observation:
“It is the function of the jury, properly directed, to assess the evidence and to decide whether or not various incidents involving the appellant were so linked in time, character and circumstances as to demonstrate a course of criminal conduct and a unity of purpose such that it would be appropriate to apply the Moorov doctrine and find mutual corroboration established: Sinclair v HMA. The Appeal Court is reluctant to interfere in such matters, but may do so where, for example there has been a misdirection; or where, following upon a discriminating verdict of the jury, convicting of some charges but not others, certain time lapses emerge between the various incidents which are so excessive in the circumstances that the law would not permit the application of the Moorov doctrine: cf Lord Justice Clerk Gill in Dodds v HMA at paragraph 7.”
Bearing in mind the whole circumstances of the evidence led in support of charges (5), (6), (9) and (11) we cannot say that the law would not permit the application of the Moorov doctrine. We cannot therefore say that the jury were not entitled to find the charges established in the manner which they did and in light of the directions given by the trial judge.
THE PHYSICAL ASSAULTS
[41] For the same reasons as we have identified in paragraph [39] above we are satisfied that there is nothing by way of an extraordinary or special feature disclosed in the evidence led in support of charges (1) and (3) such as would be eloquent of continuity and therefore sufficient to bridge the time lapse of around 15 years between them. We therefore conclude that there was insufficient evidence available to provide corroboration of the evidence led in support of charge (1).
[42] The evidence led in support of charges (3) and (8) disclosed that they were separated by nine years. Charge (3) concerned a single incident which appears to bear no meaningful similarity in terms of its circumstances with the various acts of violence specified in charge (8). For these reasons we also consider that the doctrine could not be applied as between these charges in order to provide the necessary corroboration.
The Misdirection Point
[43] We do not consider that there is any merit in the appellant’s submission concerning misdirection. In any event our decision concerning the charges in relation to the complainer RG makes the point redundant.
Disposal
[44] For the reasons which we have given we shall sustain the appeal to the extent of quashing the appellant’s conviction on charges (1), (2), (3) and (8) with the exception of parts (e) and (i). The appeal in relation to charges (5), (6), (9) and (11) is refused. We shall hear submissions from counsel for the appellant at the advising hearing on what, if any, impact this decision has on sentence.