HMA v JSH – Re-asserting the Jury’s Role in Determining Mutual Corroboration in Domestic Sexual Abuse Cases

Introduction

The Appeal Court of the High Court of Justiciary has, in HMA v JSH ([2025] HCJAC 37), delivered a significant decision clarifying when a trial judge may withdraw sexual charges from a jury on a no-case-to-answer submission and how the doctrine of mutual corroboration (derived from Moorov v HM Advocate) operates in the context of domestic abuse that straddles both sexual and ostensibly non-sexual conduct.

The respondent, JSH, faced a 20-charge indictment alleging a course of domestic abuse against his wife and several daughters over two decades. Mid-trial, the judge upheld a defence submission of no case to answer on five charges (6, 7, 10, 11 and 12). The Crown appealed under s 107A of the Criminal Procedure (Scotland) Act 1995. The core issue was whether the jury could, on any reasonable view, find that the evidence on the remaining charges mutually corroborated each other, particularly the most serious allegations of rape and prolonged sexual assault (charges 6 & 7).

Summary of the Judgment

The Court (Lord Justice Clerk Beckett delivering the opinion, with Lords Matthews and Armstrong concurring) allowed the Crown appeal, quashed the acquittals and remitted the case to the trial judge to proceed on all charges. Key holdings were:

The trial judge applied too exacting a test and usurped the province of the jury. A judge may only sustain a no-case submission if on no possible view could the evidence support a finding that the charges are parts of a single course of criminal conduct (BL, MR, McMahon applied).
Less serious or apparently non-sexual conduct (e.g. “modesty checks”, corporal punishment, or intrusive prayer sessions) can, depending on an objective assessment under s 60 of the Sexual Offences (Scotland) Act 2009, be characterised as sexual and thus corroborate more serious sexual offences.
Section 97 of the 1995 Act obliges a judge to consider all alternative verdicts; therefore charges 10 and 12 could not be removed because a jury could still convict of simple assault even if not persuaded of a sexual element.
Charge 8 (showing pornography to a 5-year-old) plainly contained a sexual element and overlapped temporally and circumstantially with charges 6 & 7, offering potential corroboration.
The Court emphasised the high threshold for judicial intervention and the centrality of the jury’s evaluative function in cases involving familial sexual abuse.

Analysis

1. Precedents Cited and Their Influence

Moorov v HM Advocate (1930) – Foundation of mutual corroboration: offences committed as part of a single course of conduct can mutually corroborate. The Court reiterated that the doctrine applies by assessing similarity, proximity and relationship on a broad, jury-centred approach.
McMahon v HM Advocate (1996) – Labels are not determinative; underlying conduct is.
MR v HM Advocate (2013, Full Bench) – No rule that lesser offences cannot corroborate more serious ones.
HM Advocate v BL (2022) – Sets the “no possible view” test re-affirmed in the present case; warns judges against over-analytical interventions.
Somerville v HM Advocate (2010) – Sexual gratification is not an essential element of sexual offences.
Duthie v HM Advocate (2021, Full Bench) – Distinguishes cases where conduct contains no sexual element; relied on by the respondent but distinguished by the Court, emphasising that here each incident carried at least a potential sexual dimension.
Watson v HM Advocate (2019) & SM (No 2) (2019) – Earlier decisions on the scope of mutual corroboration; differences in facts explained why they did not assist the respondent.

2. Legal Reasoning

The Court’s reasoning rested on the intersection of three statutory pillars and the common-law doctrine of Moorov:

Section 97 Criminal Procedure (Scotland) Act 1995 – A judge must consider whether any charge (or alternative) could survive on the evidence. Because common-law assault is an available alternative to statutory sexual offences (s 50 & Sch 3, 2009 Act), charges 10 & 12 could not be disconnected from the indictment.
Section 60 Sexual Offences (Scotland) Act 2009 – Provides an objective test of “sexual” based on what a reasonable person would consider in all the circumstances. Thus, ostensibly disciplinary actions (lifting skirts, striking bare skin, intrusive bodily inspection) could rationally be viewed as sexual.
Section 107A Criminal Procedure (Scotland) Act 1995 – Governs Crown appeals against decisions to uphold no-case submissions; the appellate court reviews whether the judge’s intervention was correct in law.

Applying these provisions through the lens of Moorov, the Court found ample potential for mutual corroboration:

Temporal overlap: charge 8 (2003-2007) falls squarely within the period of charge 6; charge 10 (2014-2015) and charge 12 (2017-2020) overlap with charge 7.
Relational nexus: all complainers are immediate family members residing in the same household(s).
Behavioural similarity: each incident involved intrusion on sexual or bodily autonomy justified by the respondent’s claimed patriarchal religious beliefs.

Given these links, the Crown needed only one other charge to corroborate charges 6 & 7, yet here multiple candidates (8, 10, 11, 12) existed. Accordingly, the judge’s removal of the charges was an error of law.

3. Impact of the Decision

The judgment’s practical and doctrinal implications are wide-ranging:

Restatement of Trial Dynamics: Judges must resist the temptation to micro-analyse the evidence at the no-case stage in sexual/domestic abuse prosecutions. Unless the evidence is plainly incapable of supporting the Crown’s case, the jury must decide.
Expanded Corroborative Reach: Conduct that is objectively sexual, or which reasonable jurors might find sexual, can corroborate more overt sexual crimes even if some witnesses perceive it as discipline or prayer.
Religious Justification Irrelevant to Sexual Character: A perpetrator’s asserted religious motive does not negate the possibility of sexual character; indeed, it may provide the thematic glue justifying mutual corroboration.
Prosecutorial Strategy: The Crown can frame indictments capturing a spectrum of behaviour without fear that lesser counts will be excised mid-trial, provided charges are rooted in a coherent narrative of ongoing control or abuse.
Defence Tactics: Defence counsel must focus on persuasion of the jury rather than expecting judicial removal of charges, save in the most obvious cases.

Complex Concepts Simplified

Mutual Corroboration (Moorov Doctrine): Scots criminal law requires corroboration – at least two independent evidential sources for each essential fact. Where separate crimes are so similar and connected that they appear to form a single course of conduct, each victim’s testimony can corroborate the other, even if only one witness speaks to each charge.
No Case to Answer (Section 97 Motion): After the prosecution closes its case, the defence can argue that, even at its highest, the evidence cannot sustain a conviction. If the judge agrees, the charge is removed from the jury and an acquittal follows.
Section 60 “Sexual” Test: Determines whether an act is sexual by asking what a reasonable person would conclude in the circumstances, disregarding the accused’s alleged motives.
Section 107A Crown Appeal: Allows the Crown to challenge a judge’s mid-trial ruling on a no-case submission, ensuring wrongful removals can be corrected without waiting for a possible overall acquittal.

Conclusion

HMA v JSH is a forceful affirmation of the jury’s primacy in assessing the interconnectedness of sexual and domestic abuse offences. By overturning the trial judge’s intervention, the Appeal Court has enlarged the practical scope of the Moorov doctrine within the family context and underscored that conduct need not be overtly sexual, nor entirely free of alternative explanations, to function as corroborative evidence. The decision cautions trial judges against depriving juries of their evaluative role and provides prosecutors with a robust platform for advancing comprehensive, narrative-driven indictments in complex domestic abuse prosecutions.