Her Majesty’s Advocate v. B.L. [2022] HCJAC 15

Note of appeal under section 107A and 110(1)(e) of the Criminal Procedure (Scotland) Act 1995:- At the close of the Crown case in a trial at the High Court the trial judge sustained a ‘no case to answer’ submission made on behalf of the respondent in terms of section 97 of the Criminal Procedure (Scotland) Act 1995. Here the Crown appealed against the decision of the trial judge to sustain the submission. The basis of the submission made on behalf of the respondent was that the evidence in respect of two charges was not mutually corroborative. The trial judge considered that the case fell into the rare category in which it was the responsibility of the judge to uphold the submission rather than leave it as a matter for the jury. It had been argued on behalf of the respondent at the close of the Crown case that it was not open to the jury to hold that the circumstances relating to charges 1 and 2 were mutually corroborative. It was argued that there was no evidence to entitle the jury to hold that the episode involving the first complainer and charge 1 occurred within the dates in the libel, the first complainer being unable to recollect when the incident had happened. It was submitted that there were limited similarities relating to the locus and that the allegation in the first charge involved conduct between a girl and an older boy and the allegation in charge 2 involved a boy and an older boy. It was submitted there were significant dissimilarities between the conduct in that charge 1 was a single episode involving a comment made by a boy in his late teens to a much younger girl being an inducement to allow sexual touching and the alleged touching was overclothing indoors. Charge 2 did not involve any form of sexual remark and there was no evidence of an inducement to participate in the behaviour which involved far more serious and intimate sexual contact including masturbation and oral penetration. Here the court allowed the appeal. The court highlighted numerous similarities between the between the episodes including that they occurred within a similar timeframe from 1979-1981, when the complainers were both children and the incidents took place in or around the respondent’s house. The court reiterated that where there are similarities as well as dissimilarities between charges a ‘no case to answer’ submission should only be sustained where “on no possible view could it be said that there was any connection between the two offences” (Reynolds v HMA 1995 JC 142 at page 146). The court stated that it was only in circumstances where, on no possible view of the similarities and dissimilarities in time, place and circumstances, could it be said that the individual incidents were component parts of one course of conduct persistently pursued by the accused should a ‘no case to answer’ submission be sustained.