R.B.A v. Her Majesty’s Advocate [2019] HCJAC 56

Note of appeal against conviction:- On 29 August 2018, at Glasgow High Court, the appellant was convicted after trial of 5 charges of sexual offences perpetrated against two complainers. On 10 October 2018, the appellant was sentenced to 8 years imprisonment. The Crown case was based on the application of the doctrine of mutual corroboration. At the close of the Crown case a ‘no case to answer’ submission was made on behalf of the appellant in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 it being argued that the time interval between the conduct relating to the charges concerning the first complainer and the conduct relating to the charges concerning the second complainer were so great that the evidence could not sustain the application of the doctrine. The trial judge repelled the submission and the appellant was subsequently convicted by the jury. The appellant appealed against his conviction it being contended that the trial judge erred in repelling the ‘no case to answer’ submission. Broadly, the circumstances were that there was a gap of 12 years and 10 months between the conduct described by the two complainers. The trial judge in repelling the submission stated inter alia “...I have concluded that it cannot be said that on no possible view could it be asserted that the individual instances in the libel can be seen or characterised as component parts of a single course of conduct...”. It was submitted on behalf of the appellant that there had to be an underlying unity of intent such as to indicate a course of conduct on the part of the appellant, systematically pursued and not just a general disposition to commit a particular type of offence. It was accepted that there were similarities between the conduct described, however, it was submitted that it was in the way described by the Lord Justice Clerk in RB v HMA (2017 JC 278 as “the similarities one might expect to find in any two offences of this kind.” It was submitted that in light of the interval of 13 years there was an absence of an extraordinary feature to explain such a gap. There were no features present to enable a jury to conclude that the conduct formed part of a single course of conduct systematically pursued by the appellant in light of the lengthy time interval and the Crown had failed to demonstrate how the doctrine could apply in light of that. It was submitted that caution ought to be exercised particularly given there were only two complainers. On behalf of the Crown it was submitted that the trial judge was correct in saying that a ‘no case to answer’ submission must not be sustained unless the court is persuaded that on no legitimate view of the evidence, taken at its highest, could it be open to a reasonable jury, properly directed to convict the appellant. It was submitted that there is no maximum time limit for the application of the doctrine and the presence of dissimilarities does not preclude the operation of the doctrine. Here the court allowed the appeal. The court pointed to the time interval of 13 years and the obvious difficulty such an interval presents in demonstrating that the conduct are component parts of one course of conduct persistently pursued by the appellant. The court reiterated that the longer the time-gap “the more it will point away from a unitary course of conduct and the more difficult it will be for the Crown to discharge its onus.” The court noted that where there is such a lengthy interval the Crown may seek to explain it by, for example, leading evidence of a lack of opportunity to offend. There was no such evidence in this case to explain the interval. In relation to the threats made by the appellant to both complainers the court considered that it could not be said that the threats were a sufficiently special or extraordinary feature to link them as a single course of conduct.