James Adam and Brian Daisley v. Her Majesty’s Advocate [2020] HCJAC 5

Notes of appeal against conviction:- The appellants appealed in respect of their convictions following the application of the doctrine of mutual corroboration. The issue which arose in both appeals was whether, in cases involving allegations of sexual abuse by adults of children in circumstances where there is a lengthy temporal gap, it is essential for there to be a special or compelling feature present and whether a jury must be given specific directions on that. In relation to the first appellant on 28 March 2019, at Edinburgh High Court, he was found guilty after trial of 7 charges relating to the sexual abuse of 3 complainers, with four charges occurring in the period 1975 to 1981. The later charges, charges 5, 7 and 8 occurred in 1988-96, 1996-2000 and 2001 respectively. On 23 April 2019, the first appellant, aged 81, was sentenced to 8 years imprisonment. In relation to the second appellant on 29 January 2019, at Glasgow High Court, he was found guilty after trial of 3 charges relating to the sexual abuse of two individuals over a period of around 14 years. On 5 March 2019, the second appellant was sentenced to an extended sentence of 10 years, comprising of a custodial element of 8 years. On behalf of the first appellant it was submitted that in relation to charges 5, 7 and 8 involving the complainer LD a time interval of at least 6 ½ years required compelling similarities before mutual corroboration could apply. It was further submitted that if it did there were no such similarities were present. A number of submissions were made on behalf of the first appellant:- (1) whilst it was recognised that there is no maximum interval of time beyond which mutual corroboration cannot apply it was generally considered that 4 years was a substantial gap; (2) where there was such a long interval there had to exist compelling similarities between the conduct for the principle to apply; (3) intervals of between 4 and 8 years have been considered to be long enough to require compelling similarities; and (4) where there was such a lengthy time interval, further specific directions to the jury was necessary, in particular, that a clear direction that it was necessary for a special or compelling feature of the conduct to exist. On behalf of the second appellant it was submitted that the trial judge erred in repelling the ‘no case to answer’ submission in relation to charges 2 and 3 in that mutual corroboration could not apply between charge 1 and charges 2/3. It was submitted that where there was such a time interval (8 years 9 months) there required to be compelling similarities and in the absence of some extraordinary feature the doctrine could not apply. In addition, there were a number of dissimilarities of significance, for example, in charge 1 the complainer was a 5 year old male and there was no kissing or masturbation, whereas in relations to charges 2 and 3, the complainer was a 9 year old female and there was evidence of kissing, masturbation and vaginal penetration. On behalf of the Crown it was submitted that in relation the first appellant it could not be said that it fell into the category that it could be said that on no possible view of the evidence were the jury entitled to return a conviction. In relation to the second appellant it was submitted on behalf of the Crown that there was a compelling picture of a course of conduct systematically pursued and that this was not a case where there was a need for a compelling feature. The Crown submitted that the abuse of children should be seen as a special feature. Here the court refused both appeals. The court stated at paragraph 35:- “In essence, in cases involving the peculiar crime of the sexual abuse of children by adults, there already exists a special, compelling or extraordinary circumstance which will be sufficient for the jury to find the necessary course of conduct established, at least in cases which do not involve an exceptionally long gap in time.” The court went on to state that the need for a specific direction on the necessity for a special or compelling feature will depend on the circumstances of the case. The court observed that, unlike in CS v HMA [2018] HCJAC 54 where the time interval was 11 years and a specific direction was deemed necessary, in the case of the first appellant here the time interval was much shorter. In relation to both appeals submissions made on behalf of both appellants regarding the absence of similar conduct in relation to other children was considered to be a matter for the jury and was irrelevant in relation to the question of sufficiency. The court took a similar view in relation to the difference in the gender of the two complainers in relation to the second appellant.