Introduction

The case of DW against His Majesty's Advocate ([2023] HCJAC 28) adjudicated by the Scottish High Court of Justiciary on July 27, 2023, presents a significant examination of how the judiciary interprets and applies the concept of a "single course of conduct" in cases involving sexual offences with substantial time intervals between incidents. The appellant, DW, was convicted on two charges of lewd, indecent, and libidinous practices, one under common law and the other under section 20 of the Sexual Offences (Scotland) Act 2009. The prosecution's case centered around alleged misconduct involving three minors over periods spanning seventeen years, raising critical questions about the applicability of mutual corroboration amidst prolonged intervals between offenses.

Summary of the Judgment

DW appealed against his conviction and sentence, contending that the time gaps between the alleged offences were too extensive to support the application of mutual corroboration as established in previous case law, specifically citing Duthie v HM Advocate [2021] HCJAC 23. The appellant argued that the seventeen-year interval undermined the cohesiveness of the alleged pattern of misconduct. However, the High Court of Justiciary upheld DW's conviction, emphasizing the compelling similarities in the nature of the offences, the profiles of the complainants, and the geographical consistency in the location of the incidents. The court determined that these factors sufficiently demonstrated a single, systematically pursued course of criminal conduct despite the significant time lapses.

Analysis

Precedents Cited

The court extensively referenced several pivotal cases to frame its decision:

• Duthie v HM Advocate [2021] HCJAC 23: This case addressed the applicability of mutual corroboration, particularly focusing on the temporal gaps between allegations. DW's defense drew heavily on this precedent to argue that the time gaps in his case were excessive.
• Adam v HM Advocate 2020 JC 141: Emphasized that the absence of similar conduct in the intervening period does not automatically invalidate the assertion of a single course of conduct.
• HM Advocate v BL 2022 JC 176: Highlighted the stringent requirements for establishing a persistent course of conduct in child sexual abuse cases.
• Additional cases such as JH v HM Advocate [2022] HCJAC 39, AS v HM Advocate 2015 SCCR 62, and AK v HM Advocate 2012 JC 74 were cited to reinforce the notion that compelling similarities can mitigate concerns about time intervals.

Legal Reasoning

The court's legal reasoning centered on the "single course of conduct" doctrine, which requires demonstrable similarities in time, character, and circumstances to link individual incidents into a cohesive pattern. Despite the seventeen-year interval between the first and second charges, the court found that the nature of the interactions, the profiles of the minors involved, and the consistent setting of Hawick provided sufficient continuity. The appellant’s role as a rugby coach and his established relationships facilitated repeated access to the victims, thereby supporting the assertion of a systematically pursued course of conduct.

The court also clarified that while time gaps are a significant factor, they are not sole determinants. What matters is the overarching pattern and the intensity of similarities across the incidents. The mere existence of a long interval does not automatically negate the possibility of a single course of conduct, especially when other compelling similarities are present.

Impact

This judgment reinforces the judiciary's willingness to consider patterns of behavior over extended periods, particularly in cases involving vulnerable victims such as minors. It underscores that substantial time gaps do not preclude the establishment of a single course of conduct if other elements convincingly indicate a sustained pattern of misconduct. This decision may influence future cases by providing clear guidance on balancing temporal gaps against substantive similarities, potentially leading to more convictions where systemic abuse is evident despite intermittent intervals between offences.

Complex Concepts Simplified

Single Course of Conduct

A legal principle used to determine whether multiple offenses committed by an individual can be considered as part of a continuous pattern of behavior. This involves assessing similarities in the nature of the offences, the victims, the circumstances, and the time frames within which they occurred.

Mutual Corroboration

A requirement where multiple independent pieces of evidence or testimonies support the prosecution's case, thereby strengthening the credibility of the allegations. In sexual offence cases, it often pertains to corroborating the accounts of victims to establish the reliability of the evidence.

Libidinous Practices

Conduct that is motivated by sexual lust or desire, typically referring to inappropriate or illegal sexual behavior.

Sexual Offences (Scotland) Act 2009

A key legislative framework in Scotland that outlines various sexual offences, their definitions, and corresponding penalties. Section 20 specifically deals with certain sexual activities involving minors.

Conclusion

The High Court of Justiciary's decision in DW against His Majesty's Advocate reaffirms the judiciary's approach to handling complex sexual offence cases where allegations span extensive periods. By meticulously evaluating the similarities across different incidents and recognizing the enabling circumstances that facilitated repeated misconduct, the court set a robust precedent for future cases. This judgment highlights the importance of a holistic assessment of evidence, ensuring that systemic abuse does not evade justice due to procedural technicalities such as time gaps. Consequently, it bolsters the legal framework aimed at protecting vulnerable individuals from prolonged and repeated exploitation.