James Irvine McMeekin v. Her Majesty’s Advocate [2019] HCJAC 53

Note of appeal against conviction:- On 18 May 2018, at Glasgow High Court, the appellant was convicted after trial of the following two charges:- (1) a charge of vaginal rape whilst the complainer was asleep and continued when she awoke committed on an occasion between 1 and 23 July 2009 contrary to the common law; and (2) a charge of anal rape committed on 11 July 2015 contrary to section 1 of the Sexual Offences (Scotland) Act 2009. On 8 June 2018 the appellant was sentenced to 8 years imprisonment. The appellant’s position was that any sexual contact was consensual. At the trial there was no ‘no case to answer’ submission in terms of section 97 of the Criminal Procedure (Scotland) Act 1995. The judge directed the jury that it was open to them, if they considered it appropriate, that the principle of mutual corroboration could apply. In particular, the conduct described was an incident of domestic sexual abuse in an existing relationship with the complainer at a time when they were not cohabiting, but spending time at their respective houses. In addition, the conduct described by both complainers occurred in the appellant’s home and the complainers were younger than the appellant and the conduct amounted to an abuse of the trust of each complainer by having penetrative intercourse without consent. The appellant appealed against his conviction on the grounds that the conduct was not capable of being part of a course of criminal conduct systematically pursued by the appellant. It was submitted that it was not enough for the Crown to point to some similarities, rather, the Crown had to demonstrate that each incident was a component part in the course of criminal conduct systematically pursued by the appellant. It was further submitted that there were significant differences between the charges described and any similarities were superficial. It was also submitted that the time interval of 6 years was significant. On behalf of the Crown it was submitted that there were the similarities referred to by the trial judge and, whilst there were dissimilarities, for example the type of penetration, the various points of similarity were sufficient for the application of the doctrine. Here the court refused the appeal. The court reiterated that the assessment of similarities and differences between the conduct will often be a question of fact and degree requiring assessment by the jury under proper direction of the trial judge provided the features of time, place and circumstances would entitle the jury to hold that each incident described forms part of a course of criminal conduct persistently pursued by the accused. Here the court pointed to the following:- (1) the character of the offences was the same; (2) both offences were rape; (3) they both occurred within the appellant’s bed; (4) both complainers were involved in a relationship with the appellant at the time; and (5) both involved force following the complainers’ protests. In the circumstances the court considered that the jury were entitled to draw the inference that the incidents formed part of the same course of criminal conduct pursued by the appellant.