Michael Finlay v. Her Majesty’s Advocate [2020] HCJAC 29

Note of appeal against conviction:- On 18 June 2019, following a trial on indictment at Glasgow Sheriff Court, the appellant was convicted of two charges:- (1) threatening or abusive behaviour directed towards his wife contrary to section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 (charge 1); and (2) repeatedly assaulting his baby daughter over a period of three months (charge 3). Charges 2 and 4 were withdrawn by the Crown at the close of the Crown case. Following the obtaining of a Criminal Justice Social Work Report the appellant was sentenced to a cumulo sentence in relation to charges 1 and 3 of five years imprisonment. The appellant appealed against his conviction in relation to charge 1. At the close of the Crown case a ‘no case to answer’ submission in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 was made on behalf of the appellant in relation to charges 1 and 3 it being contended that there was insufficient evidence to allow charges 1 and 3 to proceed to the jury for their consideration. In relation to charge 1 it was submitted that there required to be corroboration of each individual incident in the charge before the jury could convict. The sheriff repelled the submission (in relation to both charges). In relation to the section 38 charge the sheriff considered that the jury were entitled to find that charge 1 libelled “a single episode of multiple instances of abusive and threatening behaviour” and it was open to the jury to find that corroboration of some of the individual incidents libelled in the charge was sufficient to amount to corroboration of the whole charge. Here it was contended on behalf of the appellant that the various incidents narrated in charge 1 were separate and distinct criminal acts all of which required to be corroborated either directly or by application of mutual corroboration. It was submitted that the jury had not been directed on the basis that they had to find corroboration of the individual incidents or the application of mutual corroboration and the conviction should be quashed. On behalf of the Crown it was submitted that the terms of section 38 of the 2010 Act emphasised that, in terms of subsection (3)(1)(b)(ii), the behaviour constituting an offence under that section could consist of a single act or “a course of conduct” and what had been libelled here in charge 1 was a course of conduct including various separate incidents some of which were individually corroborated and others which were not. It was submitted that the trial sheriff did not err in directing the jury they could find corroboration of the entire charge if there was corroboration of the complainer in relation to at least some of the incidents libelled. The sheriff erred in directing the jury that they had to acquit the appellant of the entire charge if they were not satisfied that the charge constituted a single episode of multiple criminal acts, however, that misdirection was in favour of the appellant. It was conceded on behalf of the Crown that there had been no evidence led relating to the locus of the Gleddoch House Hotel and such reference ought to be deleted from the charge. Here the court refused the appeal. Whilst the court reiterated that where a charge libels a number of separate criminal acts each such act requires to be corroborated, the present statutory charge related to conduct which amounted to a single crime being committed over a period of time by a course of conduct. There required to be corroborating evidence of that course of conduct, namely, evidence relating to two or more of the incidents referred to in the libel from which the jury could conclude that they were part of a course of conduct. The court considered that the sheriff was correct to leave the question of whether (1) the conduct amounted to a single course of conduct; and (2) the complainer’s evidence was corroborated by the evidence from the complainer’s sister and the messages on social media, to the jury. The court deleted the reference to the Gleddoch House Hotel from the charge.