Beyond Beveridge: Distress as Non-Corroborative Yet Admissible, and the Primacy of Mutual Corroboration—TH v HM Advocate [2025] HCJAC 46

Beyond Beveridge: Distress as Non-Corroborative Yet Admissible, and the Primacy of Mutual Corroboration—TH v HM Advocate [2025] HCJAC 46

Introduction

In TH v His Majesty’s Advocate [2025] HCJAC 46, the Appeal Court (Lord Justice Clerk (Beckett) delivering the opinion of the court, with Lord Armstrong and Lord Ericht concurring) refused an appeal against conviction grounded on alleged misdirections regarding corroboration by distress and statements de recenti. The appellant, TH, was convicted at trial of three charges arising from sexual offences against two complainers: (1) the rape of his then wife, AA, during the period 1989–1994; (3) a sexualised breach of the peace directed at BB (aged 12–15); and (4) the rape of BB during 1992–1997. He was acquitted of two further charges involving the same complainers. On appeal, he argued that the trial judge had wrongly presented the jury with a second “route to verdict” based on free-standing corroboration by distress and de recenti statements, thereby occasioning a miscarriage of justice.

The appeal brought into sharp focus three interlocking areas of Scots criminal law: (i) when, and to what effect, distress and de recenti statements may corroborate sexual offences; (ii) the continuing operation of mutual corroboration (the Moorov doctrine) across complainers and charges; and (iii) the proper appellate test for assessing whether misdirection has resulted in a miscarriage of justice under section 106(3) of the Criminal Procedure (Scotland) Act 1995. The court engaged with, and clarified, the scope of recent authority, notably McGuiness v HM Advocate [2025] HCJAC 13 and Beveridge v HM Advocate [2025] HCJAC 23, and affirmed the pragmatic, evidence-led approach to “route to verdict” analysis.

Summary of the Judgment

The court refused the appeal. It held:

  • On charge 1 (rape of AA), there was no material misdirection. The jury could find corroboration in AA’s distress and de recenti account to her mother, CC, where the evidence permitted the inference that the conversation and observed distress occurred while the offending was ongoing and thus were sufficiently contemporaneous.
  • On charges 3 and 4 (sexualised breach of the peace and rape of BB as a child), the Crown conceded—and the court accepted—that, following McGuiness, distress exhibited by BB in 2022 was too remote to provide corroboration for offending in 1992–1997. There was, therefore, a misdirection insofar as the jury were presented with distress as a route to corroboration for these charges.
  • Nonetheless, there was no miscarriage of justice. The court concluded that the clear and most likely route to verdict adopted by the jury was mutual corroboration between the accounts of AA and BB. This was supported by strong similarities and links, the content of the Crown speech, the structure and emphasis of the judge’s directions, the trial judge’s report, and the cautionary directions given on distress. The alternative—that the jury founded conviction on the remote distress—was described as “fanciful.”
  • The court reaffirmed that even where distress cannot operate as corroboration, such evidence remains admissible and can inform the jury’s qualitative assessment of a complainer’s credibility and reliability.
  • The correct appellate test is whether there has been a miscarriage of justice under s 106(3). The “real possibility of a different verdict” test in McInnes applies to certain Convention rights cases (notably non-disclosure), and not to misdirection generally.

Factual Background and Evidential Features

The Crown case comprised two complainers connected to the appellant by family ties:

  • AA (then wife) described coerced sexual incidents during cohabitation, including pressure tied to financial control, offers of money for sexual intercourse, restriction of her movements, and penile penetration. She said she reported the abuse to her mother, CC, when living at one of the libelled addresses.
  • BB (the appellant’s cousin’s daughter, aged 12–15 at the time) described three rapes and other sexual conduct by the appellant when she babysat for the appellant and AA or when he encountered her elsewhere. Alcohol and money featured as recurrent aspects. She disclosed the historic abuse to her mother, DD, in 2022, exhibiting distress at that point.

The defence case was that all sexual activity with AA had been consensual, and that BB’s underage allegations were fabricated; the appellant accepted a consensual sexual relationship with BB only as an adult. The Crown invited the jury to convict either on mutual corroboration or on distress/de recenti. The defence did not squarely contest the availability of mutual corroboration but attacked credibility and reliability.

Analysis

1. Precedents Cited and Their Role

  • McGuiness v HM Advocate [2025] HCJAC 13, 2025 JC 249: The court relied on McGuiness to confirm that distress which is not sufficiently proximate to the alleged events cannot serve as corroboration. Importantly, McGuiness also emphasises that evidence which is not corroborative is not thereby inadmissible; juries may still use it in evaluating credibility and reliability. This authority underpinned the concession that BB’s distress in 2022 could not corroborate offences committed decades earlier, while supporting the notion that such evidence could still inform the jury’s assessment of her account.
  • CA v HM Advocate [2024] HCJAC 29, 2024 JC 389: Cited by the appellant to argue that only where the court can affirm that verdicts are based on mutual corroboration (as signalled by the speeches) can misdirections be harmless. The court distinguished CA as a case where distress and consent were simply irrelevant to sexual offences against children under 13. Here, the court declined to read CA as setting a rigid precondition; rather, it applied a holistic “overall view” approach.
  • MacDougall v HM Advocate [2021] HCJAC 32 and Docherty v HM Advocate [2014] HCJAC 94, 2014 SCL 758: These authorities confirm that a material misdirection does not automatically amount to a miscarriage of justice. The court must consider the whole circumstances, including the directions as a whole, the speeches, and the evidence, to ascertain whether a discernible and legitimate route to verdict existed.
  • CH v HM Advocate [2016] HCJAC 4: Reaffirms the need for a discernible route to verdict, informing the appellate court’s assessment of whether misdirection undermined the integrity of the jury’s decision-making.
  • Stalley v HM Advocate [2022] HCJAC 12, 2022 JC 121: Supports the proposition that despite a misdirection, a court may be satisfied that the jury were bound to find mutual corroboration across sexual charges. Although Stalley involved more charges and complainers, it is used here to reinforce the permissibility of appellate inference where similarities and features are compelling.
  • JH v HM Advocate [2024] HCJAC 10, 2024 JC 300 and Beveridge v HM Advocate [2025] HCJAC 23: The court notes Beveridge as an example where the verdicts and directions made it a necessary or inevitable inference that mutual corroboration had been found. In TH, however, the court clarifies that Beveridge does not establish a rigid rule requiring an inevitable inference before upholding a conviction in the face of misdirection.
  • McInnes v HM Advocate [2010] UKSC 7, 2010 SC (UKSC) 28; Brodie v HM Advocate [2012] HCJAC 147, 2013 JC 142; Geddes v HM Advocate [2015] HCJAC 10, 2015 JC 229; AJE v HM Advocate: These authorities delineate the distinct appellate standards. McInnes’ “real possibility” test generally applies to certain Convention rights breaches (notably non-disclosure), whereas misdirection appeals are determined under s 106(3) by the court’s overall assessment of whether there was a miscarriage of justice.
  • Begg v HM Advocate; Fox v HM Advocate; McDonald v HM Advocate; PGT v HM Advocate: Cited to support the proposition that juries can consider all admissible evidence—including non-corroborative distress—in evaluating credibility and reliability.

2. The Court’s Legal Reasoning

The judgment proceeds in three logical stages: identifying any misdirection; determining admissibility and the evidential role of distress; and analysing whether a miscarriage of justice occurred given the alternative route to verdict by mutual corroboration.

  • Charge 1 (AA): Distress as corroboration was open on the evidence. The court held there was no material misdirection. AA’s testimony was that she told her mother during the period when she lived at one of the libelled addresses where the abuse was ongoing. CC’s account included AA being in tears, reporting forced sex and rape, and CC’s response—“You’ll be okay”—implying contemporaneity with ongoing conduct. On that view, AA’s distress and de recenti disclosure to CC were capable of corroborating her account. The sole jury question was whether to accept CC’s evidence.
  • Charges 3 and 4 (BB): Misdirection conceded; distress too remote to corroborate. The Crown accepted, in light of McGuiness, that BB’s distress exhibited in 2022 could not corroborate alleged offences from the early-to-mid 1990s. The trial judge had erred in directing the jury that distress could be a route to corroboration for these charges. However, BB’s distress remained admissible to inform the jury’s assessment of her credibility. The court further noted evidence of contemporaneous behavioural change during the period BB was babysitting (DD described BB becoming “a bit unruly”), which, while not argued before the court as corroborative, was part of the relevant circumstantial landscape.
  • No miscarriage of justice: mutual corroboration was the “clear and obvious route to verdict”. Applying s 106(3), the court took an “overall view” of:
    • the trial judge’s repeated and accurate directions on mutual corroboration;
    • the Advocate Depute’s speech framing mutual corroboration as a primary route, anchored in similarities including timing, family connections, offending in the appellant’s home, offers of money for sex, and alcohol;
    • the judge’s explicit cautionary directions heavily qualifying the potential value of distress, especially its remoteness for BB;
    • the trial judge’s post-trial report, which assessed CC’s evidence as poor and DD’s distress evidence as likely to carry little or no corroborative weight given the long interval;
    • a particularly compelling link: the first rape of BB occurred while she was babysitting at AA’s home—one complainer’s rape occurring in the other complainer’s domestic sphere.
    Taken together, these features made it overwhelmingly likely the jury convicted by finding mutual corroboration between AA and BB, after accepting the essential credibility and reliability of both. The possibility that the jury relied on BB’s 2022 distress as corroboration, despite the judge’s caution, was rejected as fanciful.
  • Acquittals on charges 2 and 6 were consistent with discerning verdicts. The court observed that the evidence on these charges was less clear and cogent. Their rejection does not undermine the inference that the jury accepted the core accounts on the convicted charges and found mutual corroboration there.

3. Impact and Significance

This judgment refines and consolidates recent developments in three ways.

  • Distress: corroboration vs admissibility. Reaffirming McGuiness, TH clarifies that distress too remote from the events cannot supply corroboration. But the court underscores that such evidence remains admissible; it may legitimately support a jury’s evaluation of credibility and reliability. Practitioners should be precise about what distress evidence is being relied upon to do (corroborate, or assist credibility) and ensure judicial directions mirror that distinction.
  • Mutual corroboration remains a robust and practical route to verdict. The court’s analysis affirms that, where the evidence reveals strong similarities in character, time, and circumstances (here, familial connections, offending at home, alcohol, offers of money, and the spatial overlap at one address), juries may properly find mutual corroboration across complainers. TH is a reminder that even with a partial misdirection on another route, convictions will stand if the mutual corroboration route is clearly available and evidently taken.
  • Appellate test under s 106(3): overall assessment, not rigid formalism. TH confirms that not every material misdirection creates a miscarriage of justice. The appellate court will ask whether, looking at the charge as a whole, the speeches, the evidence, and the trial judge’s report, there remained a discernible and legitimate route to verdict actually taken by the jury. Beveridge does not impose a new “inevitability” threshold: the court can uphold convictions without an inevitable inference, provided the overall circumstances make the route sufficiently clear.

Complex Concepts Simplified

  • Corroboration (Scots criminal law): A requirement that essential facts (typically the commission of the crime and the identity of the perpetrator) are supported by two independent sources. In sexual offence cases, corroboration can be provided by different types of evidence, including circumstantial evidence.
  • Mutual corroboration (Moorov doctrine): Where multiple offences form part of a single course of conduct due to similarities in time, character, and circumstance, the testimony of one complainer can corroborate the testimony of another. The focus is on the underlying unity of conduct.
  • Distress as corroboration: A complainer’s genuine distress, observed by another soon after an alleged sexual offence, may corroborate the occurrence of the offence or lack of consent. The distress must be sufficiently proximate to the event and attributable to it; very remote distress is not corroborative.
  • De recenti statements: Statements made shortly after an alleged incident, often accompanying distress, are admissible and may provide corroboration if sufficiently contemporaneous and tied to the event. They are not treated as hearsay in this context because of their timing and connection to the event.
  • Misdirection: An erroneous or incomplete legal direction given to the jury by the trial judge. A misdirection may be material, but the question on appeal is whether it led to a miscarriage of justice.
  • Miscarriage of justice (s 106(3) of the 1995 Act): The standard test for appeal against conviction in Scotland. The appellate court takes an overall view of the case (directions, speeches, evidence) to decide whether the conviction is unsafe. The “real possibility of a different verdict” test from McInnes applies to certain Convention rights breaches (e.g., non-disclosure) and not generally to misdirection.
  • Route to verdict: The legitimate legal pathway by which a jury could reach a conviction on the evidence and directions. If a flawed route was offered but a sound, clear route was obviously available and used, the conviction can stand.

Practical Guidance Emanating from the Decision

  • For trial judges:
    • Calibrate directions on distress with care. Make explicit that remote distress cannot corroborate historic events; demarcate where distress may instead assist only with assessing credibility.
    • When multiple routes to verdict are left, consider giving clear cautionary directions if one route is weak or unavailable, to minimise the risk of appellate challenge.
  • For prosecutors:
    • Where mutual corroboration is available, articulate the similarities concisely (time overlap, modus, relationships, locations, ancillary features like alcohol, money) and signpost it as the primary route to verdict.
    • Be precise about the function of distress evidence—corroboration (if proximate) versus credibility (if remote).
  • For defence:
    • Contest the availability of mutual corroboration expressly where appropriate; silence or equivocation may later support an appellate inference that mutual corroboration was the route taken.
    • Challenge the temporal proximity and causal linkage of distress evidence rigorously; where remote, emphasise its limited probative function.

Conclusion

TH v HM Advocate [2025] HCJAC 46 both consolidates and subtly advances Scots criminal law in the corroboration-misdirection arena. It reaffirms the contemporary limits of distress as corroboration per McGuiness—especially for historic offending—while emphasizing that such evidence is not thereby inadmissible and may still inform the jury’s assessment of credibility and reliability. The judgment underscores the enduring strength and utility of mutual corroboration to bridge complaints spanning time, relationships, and venues where a coherent course of sexual conduct is shown.

On appellate review, the court applies s 106(3) flexibly but rigorously, insisting on a discernible, legitimate route to verdict. Importantly, it clarifies that Beveridge does not impose a rigid requirement of an “inevitable inference” before upholding convictions despite a misdirection. Instead, the court takes an overall, practical view—engaging with directions, speeches, the evidential matrix, and the trial judge’s assessment—to determine whether the jury’s verdicts rest on a sound legal foundation. Here, the strong similarities between the complainers’ accounts and the “highly compelling” link of the first rape of BB occurring at AA’s home pointed to mutual corroboration as the route actually taken. The appeal was rightly refused.

Key takeaways:

  • Distress that is too remote in time cannot corroborate historic sexual offending, but remains admissible to inform credibility.
  • Mutual corroboration remains a primary, practical route to verdict where similarities and links are compelling.
  • Not every material misdirection leads to a miscarriage of justice; the appellate court will uphold convictions where a clear, legitimate route to verdict was taken.
  • The correct appellate test is s 106(3): whether there was a miscarriage of justice, not whether there is a “real possibility” of a different verdict (save for certain Convention rights contexts).

Case Details

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