C.A. v. Her Majesty’s Advocate [2022] HCJAC 33

Note of appeal against conviction and sentence:-The appellant was convicted after trial on indictment at the sheriff court of two charges:- (1) a contravention of section 1 of the Domestic Abuse (Scotland) Act 2018; and (2) a contravention of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010. The appellant was sentenced to 3 years imprisonment on charge 1 and admonished in relation to charge 2. The appellant appealed against his conviction in relation to charge 1 it being contended that the trial sheriff misdirected the jury in relation to the requirements for corroboration for section 1 charges. In addition, the appellant appealed against his sentence it being contended that it was excessive. The circumstances of charge 1 related to various types of abusive behaviour [(i) – (xiii)] which were alleged to have constituted parts of a course of abusive behaviour. Of those different parts of abusive behaviour there was corroborative evidence for four of them. Section 2 of the 2018 Act provides guidance as to what is included in abusive behaviour but includes behaviour which is violent, threatening or intimidating and all of the conduct libelled in charge 1 fell within the section 2 guidance. The sheriff directed the jury that a course of behaviour involved behaviour that the accused had engaged in on at least two occasions and there was no criticism of that aspect of the charge. In relation to the requirements for corroboration, however, it was submitted that the sheriff had erred. In relation to corroboration, the directions by the sheriff were lifted from the Jury Manual:- “…What is crucial is that the course of behaviour is corroborated by evidence coming from at least two independent sources. That requires corroboration of at least two incidents forming the alleged course of behaviour. Provided that is the case, then whether you can convict of other uncorroborated elements of the charge depends on whether you are satisfied that those uncorroborated events or elements were part of the same course of abusive behaviourasIhavedefinedit. So, two incidents at least must be corroborated in the way I have described.” It was submitted that the subheadings of the charge each amounted to a separate allegation of criminality each of which required to be corroborated. It was submitted on behalf of the appellant that the effect of the sheriff’s directions were that an individual could be convicted of uncorroborated acts of criminality so long as the libel asserted a course of conduct and a distinction should be drawn between the case of Finlay v. H.M.A. 2020 SCCR 317 which dealt with a course of conduct in the context of section 38 charges and the present case. It was submitted that the purpose of the Act was to enable the prosecution of conduct which might not be considered to be criminal or conduct that  might be difficult to prosecute, and it would not have been the intention to abolish a need for corroboration for individual criminal acts. It was submitted on behalf of the Crown that the rationale in Findlay applied equally in charges brought under the 2018 Act. Here the court refused the appeal against conviction. The court observed that in separate crimes, including different episodes of assault, even when libelled as part of a composite charge, generally corroboration is required (as was seen in Wilson v. H.M.A. 2019 SCCR 273). In cases, however, where the conduct comprises of component parts of a single assault the same does not apply. At paragraph 37 of Wilson the court stated:-“Separate episodes of assault do not constitute a separate crime known as a course of conduct in which only one incident requires to be corroborated as if it were an element in a single episode of assault as in Campbell v Vannet (cf. lewd and libidinous practices: Stephen v HM Advocate and now the Domestic Abuse (Scotland) Act 2018 s.1(1)).” The Lord Justice General described section 1 of the 2018 Act as creating a new offence which constitutes “a separate crime known as a course of conduct” and it is the course of behaviour which is the offence and requires proof by corroborated evidence on at least two occasions. The court stated that where a course of conduct is alleged it is the proof of a course of conduct which constitutes the essential element of the offence and once there is corroboration of it being a course of conduct (i.e. conduct on two occasions corroborated) then it is open to the jury to determine that other incidents also form part of the course of conduct even if those incidents  were only spoken to by a single witness. The court considered that the directions given by the sheriff were entirely consistent with those provided in the Jury Manual and in the cases of Finlay and HMA v DF (currently embargoed) and were appropriate for the offence brought under the 2018 Act. In relation to the appeal against sentence the court refused the appeal. Whilst the court noted that the appellant had no previous convictions, the court stated that the present offence was committed over a period of 6 months and included serious acts of violence, to injury, permanent disfigurement and the danger of life, all of which were perpetrated in the context of emotionally abusive and controlling behaviour.