Her Majesty’s Advocate v. E.R. [2016] HCJ 98

Submission in terms of section 97 of the Criminal Procedure (Scotland) Act 1995:- The Accused was indicted to the High Court and proceeded to trial in respect of various charges. 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 Accused in relation to charges 1, 2, 3, 8, 9 and 13. Charges 1, 2 and 3 related to allegations by a complainer ‘E’ concerning conduct in the mid-1980s and charges 8, 9 and 13 related to allegations by a complainer ‘F’ concerning conduct in 2012/13. Charge 1 comprised of several assaults culminating in a charge of attempted murder, and charges 2, 3, 8, 9 and 13 were penetrative sexual assaults generally anal rape whilst charge 9 related to an allegation of sexual intercourse with the complainer whilst she was asleep. It was submitted on behalf of the Accused that the doctrine of mutual corroboration could not apply as the evidence had to demonstrate a course of conduct systematically pursued by the Accused and it was emphasised that there was a time interval of 24 years between the charges relating to complainer E and those relating to complainer F. A police officer who had given evidence stated that she had taken statements from a former partner of the Accused and three of his ex‑wives none of whom reported similar criminal conduct on the part of him and therefore it could not be said that the various charges could be seen as part of a course of conduct systematically pursued by the Accused. It was further submitted that the physical violence and the sexual charges should not be dealt with together and, whilst there may be some similarities between the conduct, given the time interval there had to be some particular striking feature, which was absent in the case, to allow the doctrine of mutual corroboration to be applied. On behalf of the Crown it was conceded that a time gap of 24 year was significant, however, there were a number of circumstances present which pointed to the conduct being component parts of a course of criminal conduct systematically pursued by the Accused in that it was part of a course of domestic abuse involving controlling behaviour, physical and sexual violence and threats within relationships defined by jealousy, possessiveness and control. It was further submitted on behalf of the Crown that the complainers all spoke of being controlled by a jealous abuser and any conduct attributable to that was corroborated by any other offence similarly described by another complainer, in other words that the physical assaults could support the sexual allegations and vice versa. Here the court sustained the ‘no case to answer’ submission made on behalf of the Accused in respect of charges 1,2, 3, 8, 9 and 13 and acquitted him of these charges. The court observed that any similarities relied upon by the Crown had to relate to the alleged criminal conduct and not simply the motivation or mental element for the conduct and that the course of criminal conduct must comprise of crimes which were examples of the same crime in any reasonable sense. More fundamentally, however, the court considered that an interval of 24 years was too great and there was no means by which the Crown could bridge that gap. The court considered that there were no features so striking, unusual, or extraordinary that could justify the application of the doctrine of mutual corroboration given the long time interval.