Introduction

The case of Michael Finlay v. Her Majesty's Advocate ([2020] HCJAC 29) presents a significant examination of the application of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 ("the 2010 Act"). This appeal against conviction centers on whether the appellant's repeated threatening and abusive behavior over an extended period constitutes a single "course of conduct" warranting a cumulo sentence of five years imprisonment. The appellant, represented by Ogg (sol adv) and Solicitors McCusker, McElroy & Gallagher, challenges the conviction primarily on the grounds of jury direction regarding the necessity of corroboration for multiple incidents alleged within the charge.

Summary of the Judgment

The Scottish High Court of Justiciary upheld the appellant's conviction on charge 1, which involved allegations of threatening or abusive behavior towards his wife over a period spanning nearly four years. The sheriff originally repelled a "no case to answer" submission by the appellant, asserting that the accumulated evidence sufficiently demonstrated a single episode of continuous criminal behavior. On appeal, the court examined whether the sheriff erred in instructing the jury about the necessity of corroborating the entire charge based on some corroboration of individual elements. The appeal was ultimately refused, with the court affirming that the sheriff's directions were appropriate and that the conviction stood duly established.

Analysis

Precedents Cited

The judgment references several key cases that influence the interpretation of "course of conduct" and corroboration requirements:

• Spinks v Harrower (2018 JC 177)
• Wilson v HM Advocate (2019 SCCR 273)
• Rysmanowski v HM Advocate (2020 JC 84)
• Dalton v HM Advocate (2015 SCCR 125)

These cases collectively establish that when multiple criminal acts are charged under a single episode, each act traditionally requires individual corroboration unless mutual corroboration principles apply. The Wilson case emphasizes that determining whether actions constitute a single episode or separate incidents is a matter of fact and degree, significantly influencing the court's approach in Finlay's case.

Legal Reasoning

The court's reasoning centered on interpreting the statutory language of section 38(1) of the 2010 Act, particularly the notion of a "course of conduct." The critical points include:

• Single Episode vs. Course of Conduct: The court clarified that "course of conduct" aligns with portraying a pattern of behavior rather than isolated incidents. The sheriff's use of "single episode" was deemed confusing, preferring "course of conduct" to reflect the statutory intent.
• Corroboration Requirements: For a "course of conduct," it suffices to have independent corroboration for two or more incidents within the charge, reinforcing that the behavior is part of a continuous pattern rather than disparate acts.
• Jury Directions: The court agreed with the sheriff's direction that the jury could consider some corroboration of individual incidents as supportive of the entire charge if deemed part of a single course of conduct.

The decision underscores that the determination of whether multiple incidents constitute a single course of conduct is intrinsically tied to the jury's interpretation of the evidence, guided by the statutory framework and existing precedents.

Impact

This judgment reinforces the legal standards surrounding the interpretation of "course of conduct" under the 2010 Act. It clarifies that for charges involving repeated behavior over time, the prosecution must provide corroborative evidence for multiple incidents to establish a continuous pattern. This decision impacts future cases by setting a clear precedent that the jury can uphold convictions based on corroboration of select incidents within a broader pattern, rather than requiring every individual act to be independently corroborated.

Additionally, the court's emphasis on precise terminology ("course of conduct" vs. "single episode") serves as a guiding principle for future jury directions and legal interpretations, promoting clarity and consistency in the application of the law.

Complex Concepts Simplified

Course of Conduct

Course of Conduct refers to a series of related actions or behaviors by an individual that, when taken together, demonstrate a pattern or continuous activity, rather than isolated incidents. In the context of this case, it pertains to the appellant's repeated abusive behavior over several years, which collectively satisfy the legal threshold for an offense under section 38(1) of the 2010 Act.

Corroboration

Corroboration is evidence that supports or confirms other evidence. In criminal law, it serves to strengthen the reliability of the prosecution's case. In Finlay's case, corroboration refers to independent evidence supporting the complainant's account of abusive incidents, such as testimonies from the complainant's sister and messages exchanged on social media.

No Case to Answer

The No Case to Answer submission is a legal procedure where the defense argues that the prosecution has not presented sufficient evidence to proceed to a verdict. If successful, it results in the acquittal of the defendant without the need for a trial. In this case, the appellant contested that the evidence was insufficient, but the sheriff rejected this submission, allowing the case to proceed to the jury.

Conclusion

The appellate decision in Michael Finlay v. Her Majesty's Advocate solidifies the judicial approach to interpreting "course of conduct" within the framework of the 2010 Act. By affirming that corroboration of multiple incidents can substantiate a continuous pattern of behavior, the court ensures that victims of prolonged abuse have their experiences adequately represented in court. This ruling not only clarifies the application of corroboration requirements but also reinforces the importance of precise legal language in ensuring fair and consistent judicial outcomes. Consequently, this judgment holds significant weight in shaping future prosecutions involving repeated or sustained criminal behavior under similar statutory provisions.