APPEAL AGAINST CONVICTION AND SENTENCE BY BM AGAINST HER MAJESTY'S ADVOCATE
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2017] HCJAC 55
HCA/2016/000127/XC
Lord Menzies
Lord Malcolm
Lord Turnbull
OPINION OF THE COURT
delivered by LORD TURNBULL
in
APPEAL AGAINST CONVICTION AND SENTENCE
by
BM
Appellant
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: Scullion QC, More (sol adv); Robert More & Co
Respondent: Taylor (sol adv) AD; Crown Agent
26 July 2017
Background
[1] The appellant BM, who is 32 years old, went to trial in the High Court at Edinburgh on an indictment which contained 39 charges. Of these charges, one alleged breach of the peace (charge 19), one alleged malicious damage and theft (charge 20), one alleged an attempt to defeat the ends of justice (charge 34) and one alleged a breach of a condition of bail (charge 38).
[2] Three further charges alleged sexual conduct directed at young female children under the age of 13 years (charges 35, 36 and 37). The remaining 32 charges concerned sexual or violent conduct directed towards females, each of whom was in a relationship with the appellant at the relevant time. In addition to the three offences directed at young children, these 32 charges related to 15 further female complainers. Of these charges, 23 related to sexual conduct and nine related to non‑sexual violent conduct. The sexual conduct was alleged to have spanned the period between January 2001 and October 2014. The non‑sexual violent conduct was alleged to have spanned the period between March 2000 and December 2010.
[3] Prior to the case being considered by the jury the Crown withdrew 14 of the charges, with the result that the jury required to consider 25 charges relating to 14 complainers. Of these charges, 18 related to sexual conduct.
[4] The jury acquitted the appellant of 12 of the remaining charges, resulting in complete acquittal in relation to 8 of the complainers. In relation to the complainers KC and HM the jury returned verdicts of acquittal in one of the sexual charges relating to each (respectively charges 4 and 39).
[5] Verdicts of guilty were returned on charges 3, 5, 15, 16, 17, 18, 28, 29, 32, 33, 35, 36 and 38. The consequence was that the appellant was convicted of charges libelling non‑sexual violence in relation to the complainers NA (charge 3), NC (charge 17) and HM (charge 29). He was convicted of offences involving sexual conduct in relation to the complainers KC (charge 5), NC (charges 15, 16 and 18), HM (charges 28, 32 and 33), JD (charge 35) and KD (charge 36). Charge 38 was a charge of breaching a special condition of bail not to approach or contact HM.
The Appeal
[6] The appellant has appealed against his conviction on charges 32 and 33 on two grounds. The first argues that there was insufficient evidence to permit either of these charges to be corroborated, the submission being that the remaining charges of which the appellant was convicted related to conduct which was insufficiently connected in time, place and circumstance to permit the application of the doctrine of mutual corroboration. The second ground argued that the trial judge misdirected the jury by failing to direct them that evidence showing a general disposition to commit a particular type of offence is insufficient to permit the application of the doctrine of mutual corroboration, and failed to direct them that they must apply the doctrine with caution.
The Charges of which the Appellant was Convicted
[7] Charges 32 and 33 were in the following terms:
“(032) on an occasion between 1 December 2010 and 31 December 2012, both dates inclusive, at [an address] you BM did assault HM, c/o Police Service of Scotland, Bathgate and, while you were under the influence of cannabis and having penetrated her anus with your penis with her consent, ignore her when she repeatedly told you to stop so penetrating her anus, ignore the fact she was crying and continue to so penetrate her anus and you did thus rape her, to her injury: CONTRARY to Section 1 of the Sexual Offences (Scotland) Act 2009;
(033) on 30 January 2014 at [an address] you BM did assault HM, c/o Police Service of Scotland, Bathgate, push her onto a sofa, seize hold of her neck, remove her lower clothing, threaten to strangle her if she made a noise, repeatedly rape her by penetrating her vagina with your penis, penetrate her vagina with your fist, slap her on the face, repeatedly attempt to strangle her whereby she lost consciousness and continue to so penetrate her vagina with your penis while she was unconscious, to her injury and to the danger of her life: CONTRARY to Section 1 and 2 of the Sexual Offences (Scotland) Act 2009;”
HM was in a relationship with the appellant at the time of the incidents specified in each of these charges.
The Remaining Charges
[8] Of the remaining charges involving sexual offences, which were not the subject of appeal, charge 28 also concerned HM and was a charge of attempting to rape her while she was asleep on an occasion between 1 August 2010 and 31 August 2010.
[9] Charge 5 concerned attempts to rape KC while she was asleep on various occasions between 9 October 2001 and 15 February 2002. KC was married to the appellant at the time of these offences.
[10] Charge 15 concerned unlawful intercourse with NC, aged 15, on various occasions between 24 November 2005 and 23 November 2006. Charge 16 concerned the same young girl and libelled acts of lewd, indecent and libidinous practices and behaviour specified as being penetration of her mouth with his penis. These acts also occurred on various occasions and in the same period of time as charge 15. Charge 18 specified two occasions between 24 November 2006 and 30 June 2008 when the appellant indecently assaulted NC (by this time aged 16 and 17) by licking her vagina while she was asleep. NC was the appellant’s girlfriend at the time of the offences committed in each of charges 15, 16 and 18.
[11] Charge 35 concerned the appellant’s child JD. It specified that on various occasions between 31 August 2012 and 31 July 2013, when she was 8 years old, he sexually exposed himself to her, sexually assaulted her and sexually penetrated her, all in contravention of sections 19, 20 and 25 of the Sexual Offences (Scotland) Act 2009. The behaviour specified included exposing his genitals to her, touching her vagina and penetrating her vagina with his fingers.
[12] Charge 36 concerned KD, who was JD’s half-sister. It specified that on various occasions between 31 August 2012 and 31 July 2013, when she was aged 10 and 11 years old, he sexually exposed himself to her, sexually assaulted her and sexually penetrated her, all in contravention of sections 19, 20 and 25 of the Sexual Offences (Scotland) Act 2009. The behaviour specified included exposing his genitals to her, attempting to induce her to touch his penis, touching her vagina, attempting to penetrate her anus with a vibrator and penetrating her vagina with his fingers. The offences in each of charges 35 and 36 took place when the young girls stayed over with the appellant and HM and when the appellant had temporary care of them.
Submissions
Appellant
[13] On behalf of the appellant, Mr Scullion QC compared the terms of charges 32 and 33. He pointed out that charge 32 related to circumstances which began consensually and developed into criminal conduct when the appellant ignored the complainer’s request for him to stop and continued, despite the obvious pain which she was in. By contrast, he described charge 33 as one which disclosed an extremely violent episode with no consensual activity. He submitted that not only was there little by way of similarity between these two offences but the same applied to the other offences on the indictment of which the appellant had been convicted.
[14] Attention was drawn to charges 15, 16 and 18. These charges involved a young girl NC, who was the appellant’s girlfriend at the time. Mr Scullion described charges 15 and 16 as involving consensual sexual activity which was illegal because of the complainer’s age at the time. Whilst charge 18 concerned events which occurred when she was aged 16 or 17, and which were non-consensual, they did not involve any form of penetration. It was submitted that the differences in the circumstances of these offences, as compared to the circumstances of charges 32 and 33, were such as to preclude the conclusion that they were part of the same course of conduct systematically pursued by the appellant.
[15] In relation to charges 35 and 36 it was pointed out that, by contrast with the other offences of which the appellant had been convicted, these did not relate to complainers with whom the appellant was in a relationship. They involved young children. The offences were committed on the young children when they were in the appellant’s temporary care and each offence was committed in the presence of the other child. The circumstances of these offences and the circumstances of the offences specified in charges 32 and 33 were significantly different. It could not be concluded that they formed part of the same course of criminal conduct systematically pursued by the appellant.
[16] Charge 5 was the only other charge involving sexual conduct of which the appellant was convicted. This related to the complainer KC, whom the appellant was in a relationship with at the time. Whilst this was a charge of attempted rape, it predated the charge of rape specified in charge 32 by a period of nearly 9 years, and predated the offence in charge 33 by a period of nearly 12 years. Not only was there a lengthy gap in time between these charges but there were also significant dissimilarities between the conduct specified. The attempted rape specified in charge 5 involved conduct of a clandestine nature when KC was asleep. The appellant desisted when she woke up and told him to stop. No violence was displayed. In the circumstances it was submitted that there was no suggestion of any exceptional feature such as might demonstrate the presence of compelling circumstances and permit the application of the doctrine of mutual corroboration despite the lengthy time period present. It was also submitted that the evidence led at trial demonstrated that the appellant had a number of other sexual partners in the period of time which elapsed between the commission of charges 5 and 32, meaning that the time gap could not be explained by a lack of opportunity.
[17] In all of these circumstances it was submitted on behalf of the appellant that there had been no evidence led in support of any other charge of which he had been convicted which would have been sufficient to provide corroboration for either of charges 32 or 33 through the application of the doctrine of mutual corroboration. There had, therefore, been insufficient evidence in law to entitle the jury to convict the appellant of either of these charges.
[18] In relation to Ground 2, the submission on behalf of the appellant was that the trial judge had failed to give necessary and important directions. He ought to have directed the jury that it was not enough to enable the doctrine of mutual corroboration to apply to show that the appellant had a general disposition to commit a particular kind of crime. He ought also to have directed the jury that the doctrine required to be applied with caution.
[19] It was submitted that these were standard directions normally given in cases of this sort which are suggested as appropriate in the Jury Manual provided to judges and sheriffs. Such directions ought to be given as part of the standard explanation of the application of the doctrine and their absence in the present case had a particular importance. Attention was drawn to what the trial judge had said in explaining the application of the rule at page 5 of the transcript of the second part of his charge. There he explained the Crown’s allegation of what the appellant had engaged in as:
“A course of criminal conduct systematically pursued over a period of years involving sexual attacks upon, or sexual abuse of, females who were vulnerable in one way or another within the domestic context, all people known to him. And what they say is, in relation to the sexual offences, that there was this course of criminal conduct … that the crimes are linked because they were all sexual attacks or involved sexual abuse…”
[20] It was submitted that given the far‑reaching nature of the course of conduct relied upon by the Crown, it was essential that the jury had a clear understanding of the difference between a course of conduct systematically pursued and a general disposition to commit crimes of a particular kind. In the absence of a direction that a general disposition was insufficient, Mr Scullion submitted that there was a risk of the jury concluding that a series of offences were sufficiently linked merely because they were sexual offences. It was submitted that the absence of the two suggested directions became all the more important since the jury had apparently disbelieved or rejected significant portions of the evidence led by the Crown, as could be seen from the verdicts of acquittal returned in relation to the charges involving many other complainers.
[21] In presenting this aspect of his argument Mr Scullion recognised that in the case of Russell v HM Advocate 1992 SCCR 257 the court had rejected the suggestion that there was an obligation on a trial judge to warn a jury that they should only apply the doctrine with caution. Mr Scullion suggested that the decision in that case sat rather uneasily with what had been said in more recent cases such as RG v HM Advocate 2016 SCCR 360 and JL v HM Advocate 2016 SCCR 365. In any event, he argued that the presence of the two missing directions in the present case distinguished it from Russell and that this combination had led to a miscarriage of justice.
Crown
[22] On behalf of the Crown, the advocate depute submitted that it was important to see the connection between the appellant and the complainers on the sexual charges of which he had been convicted. The category of the appellant’s victims had been quite closely drawn from those within his circle at any one time. The victims were all younger than him, were all female and were all in a relationship with him of one sort or another. They had either been his partners, or, as in the case of the two young children, were under his care. His criminal conduct therefore occurred in a domestic context and did not reflect any random or opportunistic series of offences against members of the general public. Nor, for that matter, were there any male victims. Although it could be said that the complainer NC had consented to the conduct specified in charges 15 and 16, the point was that the appellant was in his 30s by the time of his relationship with her and he would have known that his behaviour was criminal, whether she consented or not.
[23] In addition to the connections identified, the advocate depute submitted the evidence disclosed that each complainer was vulnerable to one extent or another. In order to vouch this proposition reference was made to the extracts from the evidence given at the trial, which had been agreed by the parties in a joint minute for the purposes of the appeal.
[24] The Crown’s submission was that there was a course of conduct, or unity of purpose, which could be seen in the appellant’s offending. It was to achieve sexual gratification by way of sexual contact with the vagina or anus of younger females who were within his domestic circle, who were vulnerable by reason of age or other difficulty, and where consent to such conduct was absent, by virtue of the complainer being asleep, being of an age where she could not legally consent, or actively not consenting.
Within this context the advocate depute submitted that the appellant’s conduct could be seen as an escalation of offending behaviour, commencing with the complainer KC when she was asleep, then involving NC when she was asleep, moving on to the attempted rape of HM when she was asleep (charge 28) and then onto the increasingly more violent sexual assaults on HM perpetrated whilst she was awake (charges 32 and 33). This was of some significance, it was said, since no appeal had been taken against the appellant’s conviction on charge 28. If it was accepted that corroboration for this charge could be found in charges 5 and 18 (with or without taking account of charges 15 and 16), that same evidence ought to be capable of providing corroboration for the escalation in the seriousness of the course of conduct as reflected in charges 32 and 33. On this basis it could be said that corroboration was available without even requiring to take account of charges 35 and 36.
[25] In relation to the misdirection argument, the advocate depute pointed out that in the case of Russell the court had rejected the suggestion that a jury must, as a matter of necessary instruction, be told that caution was needed in the application of the doctrine. He submitted that the directions given by the trial judge in the present case were sufficient to ensure that the jury did exercise caution in their assessment of whether and how the doctrine ought to be applied. He submitted that, as in Russell, what had been said by the trial judge enabled the jury to appreciate that before the doctrine could be applied they would have to be satisfied that there was the necessary interrelation in character, circumstance and time. He pointed out that in light of the verdicts which were returned it was plain that the jury had in fact approached their task in a careful and discerning manner. They had acquitted the appellant of all charges in relation to certain complainers and some charges in relation to others. Importantly, they had also acquitted on charge 39, which was a further charge of rape concerning the complainer HM. These circumstances made it plain, he submitted, that the jury had appreciated that more than a disposition to commit a certain type of crime required to be established.
Discussion
[26] When the court is considering whether there is sufficient evidence available to permit a charge, or charges, to be corroborated by the application of the doctrine of mutual corroboration, it is the underlying similarity of the conduct described in the evidence, rather than the label which has been attached to it in the indictment, which must be examined (McMahon v HM Advocate 1996 SLT 1139, Lord Justice General Hope giving the opinion of the court at page 1142). As the Lord Justice Clerk (Carloway) explained in delivering the opinion of the court in MR v HM Advocate 2013 JC 212 at paragraph 20 (as stripped of its references):
“What the court is looking for are the conventional similarities in time, place and circumstances in the behaviour proved in terms of the libel such as demonstrate that the individual incidents are component parts of one course of criminal conduct persistently pursued by the accused. Whether these similarities exist will often be a question of fact and degree requiring, in a solemn case, assessment by the jury under proper direction of the trial judge.”
We do not consider it correct to approach matters in the compartmentalised manner advanced on behalf of the appellant. The individual behaviour exhibited at different times may vary, but it is the course of conduct as a whole which must be examined. The fact that some of the incidents in a course of conduct involve penetration, while others do not, does not lead to the conclusion that they cannot all be part of one course of conduct. (HMcA v HM Advocate 2015 JC 27 per the Lord Justice Clerk at para. 11).
[27] Whilst it is correct that there are significant gaps in time between the dates of some of the offences of which the appellant was convicted, there is no maximum interval of time beyond which the principle can be applied (K v HM Advocate 2012 JC 74 Lord Justice Clerk (Gill) at para. 14). The more similar the conduct is in terms of character, the less important a significant time gap may be (S v HM Advocate 2015 SCCR 62). Even where there has been a substantial interval of time, compelling similarities will merit consideration of the whole circumstances by the jury (K v HM Advocate).
[28] In the whole circumstances of the present case we are satisfied that the advocate depute was correct to submit that there were similarities in the conduct spoken of by the various complainers in support of charges 5, 15, 16, 18, 28, 32, 33, 35 and 36. The complainers were all drawn from those within the appellant’s domestic circle at any given time. The complainers were all female and younger than the appellant. Each was vulnerable for the individual reasons identified by the advocate depute. The conduct described involved sexual gratification through contact with the vagina or anus of the complainers perpetrated in the absence of consent. The complainers were either too young to consent, sleeping or actively not consenting. To this list we would add (as in AL v HM Advocate [2016] HCJAC 120) the consideration that the offences were all committed in the environment of controlling and dysfunctional domestic relationships.
[29] Looking at the course of conduct as a whole, we are satisfied that the similarities identified were such as to permit the jury to apply the rule of mutual corroboration between all the charges of which the appellant was convicted. Looking at the course of conduct as a whole, rather than in individual compartments, we are also satisfied that the time lapses between the respective charges was not such as to prevent the application of the doctrine.
[30] In considering the second ground of appeal we agree with Mr Scullion that judges regularly do give the directions which he argued for. It is also correct to note that each features as part of the “Possible Form of Direction On The Moorov Doctrine” as given at pages 15.3 to 15.4 of the Jury Manual published by the Judicial Institute for Scotland. We do not consider that these factors are determinative.
[31] It is helpful to start with what the trial judge did say to the jury as to how the various charges might be corroborated. His charge was split overnight. At pages one and two of the transcript of the second part he explained that certain of the charges could be corroborated in the normal or usual way, since there were at least two separate sources of evidence pointing to the appellant’s guilt on those charges. On page two he went on to explain that there was another way in which there can be corroboration. He gave careful and faultless directions over the next few pages on the conditions which require to be met before the doctrine of mutual corroboration can be applied. He made it plain that it was for the jury to decide whether the necessary link had been established between any two or more charges, he gave a helpful example of the practical application of the rule, and he reminded the jury of the particular course of conduct which the Crown alleged in the present case. None of these directions have been criticised.
[32] The suggestion that directions of the sort identified in the second ground of appeal should be given seems to emanate from a passage in the opinion of Lord Justice-Clerk Aitchison in Ogg v HM Advocate 1938 JC 152 at page 158 where he said:
“As I have said, the doctrine of Moorov is a valuable doctrine, but it must be applied with great caution. If it is not applied with caution there is a danger that evidence showing a general disposition to commit some kind of offence might be treated as corroboration. That must always be guarded against, and the doctrine ought not to be applied unless inter-relation of the similar offences in some substantial sense can be with certainty affirmed.”
[33] When considering this passage in the case of Russell the Lord Justice-Clerk (Ross) in giving the opinion of the court said this:
“We are not persuaded that there is any obligation on a trial judge to direct the jury that they can only apply the doctrine of Moorov with great caution. We do not consider that that is what the Lord Justice-Clerk was meaning at all in the passage upon which Mr Findlay founded. What the Lord Justice-Clerk was stressing was that before the doctrine can be applied the jury must be satisfied that there is the necessary interrelation in character, circumstance and time. That is in effect the direction which the sheriff gave the jury in the present case.”
We do not detect any tension between what was said there and what was said in the cases of RG and JL to which Mr Scullion drew attention.
[34] In the present case the trial judge made it clear that corroboration through the application of the doctrine of mutual corroboration was something different from “the normal and usual” way in which evidence is corroborated – page 1 line 8 to page 2 line 17. He made it plain that corroboration by this method could only arise “provided certain conditions apply”. He made it plain that it was for the jury and not for him to decide in any particular case whether the necessary link has been established between two or more charges – page 3 lines 3 to 6. He made it plain that the doctrine could only apply if the jury were satisfied that the crimes were so closely linked by their character, the circumstances of their commission and the time between them so as to bind them together as parts of a single course of criminal conduct systematically pursued by the accused – page 3 line 16 to page 4 line 2. In our view, the directions were sufficient to convey a proper understanding of the circumstances in which the doctrine of mutual corroboration could be applied.
[35] We recognise that judges and sheriffs may well wish to direct juries that the doctrine requires to be applied with caution and that a disposition to commit a particular kind of crime is something distinct from, and insufficient to establish, a course of conduct persistently pursued. In a particular case a jury may well find such directions helpful. In the present case however we do not accept that the trial judge’s directions were inadequate. From the various different verdicts returned it is obvious that the jury applied themselves with care to their deliberations and that they applied the doctrine of mutual corroboration in a discerning manner.
[36] For these reasons the appeal against conviction is refused on both grounds.
Appeal against Sentence
[37] Leave to appeal against the sentence imposed was contingent on there being some success in the appellant’s appeal against conviction. That not having occurred there is no ground available to argue and the appeal against sentence is refused.