His Majesty’s Advocate v. J.S.H. [2025] HCJAC 37

Appeal under section 107A of the Criminal Procedure (Scotland) Act 1995:- At the close of the Crown case the trial judge upheld a ‘no case to answer’ submission in relation to charges 6, 7, 10, 11 and 12 of an indictment containing 20 charges. The Crown appealed against that decision under section 107A of the 1995 Act. Charge 6 alleged rape at common law along with various forms of indecent assault. Charge 7 alleged various forms of sexual assault under sections 1, 2 and 3 of the Sexual Offences (Scotland) Act 2009. The complainer on both charges was the respondent’s wife (UV). Charge 8 on which there was no submission, alleged lewd, indecent and libidinous practices by inducing WX, when she was aged 3-6 years, to look at sexual images. Charge 10 alleged the sexual assault of WX on various occasions by compelling her to bend over and raise her skirt and repeatedly striking her on the body with a rod or similar implement and with a wooden spoon. Charge 11, brought under section 38 of the Criminal Justice and Licensing (Scotland) Act 2010, related to a single occasion when WX was aged 19 years when the respondent examined her body and made reference to her underwear. Charge 12 alleged a sexual assault of a young child, another daughter YZ, on various occasions when the child was aged 7-11 years by the respondent placing his hand on her thigh and stroking it. It had been submitted on behalf of the respondent that the only potential source of corroboration in relation to charges 6 and 7 was by the application of mutual corroboration and there was no such evidence available. In relation to charges 10, 11 and 12 it had been submitted that there was nothing sexual about the charges and so the respondent should be acquitted of them. Here it was submitted on behalf of the Crown that Charge 8 was available on its own to corroborate charges 6 and 7 and also gave context to charges 10, 11 and 12. It was submitted that evidence from the three sisters describing events relating to charge 12 provided sufficient evidence on that charge, a point conceded by senior counsel on behalf of the respondent. It was submitted that, whilst charge 11 was libelled under section 38, it was open to the jury to infer that there was a significant sexual element and use it as a source of mutual corroboration for charges 6 and 7, as they could also do in relation to the evidence relied upon in charges 8, 10 and 12 and, as such, the acquittals for all of the charges should be quashed on the basis that it was open to the jury to find mutual corroboration for all of those charges. On behalf of the respondent it was conceded that in relation to charges 10 and 12 the ‘no case to answer’ submission should have been repelled given the terms of section 97 and the availability of alternative verdicts as in relation to charge 10 if the jury were not satisfied of a sexual element it would have been open to convict of assault finding mutual corroboration from another charge of assault against a different complainer. In relation to charge 12 there was sufficient evidence on charge 12 without mutual corroboration. In relation to charge 11 whilst corroboration could be found on another section 38 or breach of the peace charge the issue was that there was no evidence available to mutually corroborate charges 6 and 7. It was submitted that charges 8 and 11 could not corroborate rape and charges 10 and 12 related to conduct which amounted to physical assaults in the form of acts of discipline rather than anything sexual. It was further submitted on behalf of the respondent that charges 6 and 7 involved repeated offending behaviour which was very different from those offences involving a single incident and in no possible view of the evidence could the jury find that the various offences were component parts of a single course of criminal conduct systematically pursued by the respondent. Here the court made reference to a number of factors in disposing of the appeal which had not been fully considered at first instance:- (1) section 97 provides that where the accused can be convicted of any other alternative offence at the close of the Crown case then a no case to answer submission will fail; (2) section 50 and schedule 3 of the 2009 Act provide that it is open on a sexual offence to convict of assault at common law; (3) the 2009 Act provides a definition of sexual in section 60 that touching or any other activity is sexual if a reasonable person would, in all of the circumstances of the case, consider it to be sexual; (4) in HMA v BL 2022 JC 176, another section 107A appeal, the court stated that the question a judge must ask is whether on no possible view of the evidence could it be said that the respective accounts of abuse constituted component parts of a single course of criminal conduct systematically pursued by the accused which is a high test and will rarely be capable of being passed in cases of child sexual abuse; (5) in McMahon v HMA 1996 SLT 1139 the court stated that the fact that the crimes each have a different nomen juris necessarily point against its application as it is the underlying similarity of the conduct described in the evidence which must be examined to assess whether the rule can be applied; (6) in MR v HMA 2013 SCCR 190 the court stated that there is no rule that what might be perceived as less serious criminal conduct cannot provide corroboration of what is libelled as a more serious crime; and (7) sexual gratification is not necessary as that does not form any part of the definition of sexual offences under the 2009 Act nor was it for common law offences like lewd, indecent and libidinous practices. Here the court allowed the Crown appeal. The court confirmed that the judge had erred in sustaining the submission in relation to charges 10 and 12, with it being open to the jury in charge 10 to convict of assault and in relation to charge 12 the evidence of the sisters could corroborate the evidence of the complainer. In relation to charge 11 the court stated that the judge erred in sustaining the submission as in the event the jury did not consider there was anything sexual about this conduct, they could convict by the application of mutual corroboration from other charges of non-sexual domestic abuse and if the jury did find there was a significant sexual element the evidence on charges 6 and 7 would be a potential source of corroboration and the evidence on charges 10 and 12 was a possible source of corroboration if the jury find that there was a sexual assault. In relation to charges 6 and 7 the court considered that in relation to charges 10 and 12 the court could not say that it was not open to the jury to determine from the evidence that these charges involved sexual touching and therefore amounted to sexual assault as neither the respondent’s motivation nor the child’s impression was decisive with section 60 of the 2009 Act providing for an objective assessment to be made and, as such, was capable of providing mutual corroboration in relation to charge 6 and 7. Further, the court queried why the Crown and the judge at first instance did not identify charge 8 as a potential source of mutual corroboration as it was clearly a sexual offence and together with charges 10 and 12 (together with charge 11 if the jury considered there to be a significant sexual element in the conduct) was available to provide corroboration for charges 6 and 7 by the application of mutual corroboration. The court reiterated what was said by the court in Duthie v HMA 2021 JC 207 at paragraph 21:- “.. that an act which contains no sexual element at all can corroborate a sexual one when they occur in a domestic context of abusive, controlling or coercive conduct” with the respondent’s religious justification for the conduct being a potential further factor supportive of the availability of mutual corroboration.