Introduction

The case of John Deeney vs. Her Majesty's Advocate ([2021] HCJAC 33) presents a pivotal examination of mutual corroboration in sexual offence prosecutions involving significant age disparities between the accused and the victims. Deeney, convicted of indecently assaulting minors during his adolescence, challenged his conviction on grounds related to the sufficiency of evidence and the application of mutual corroboration principles, particularly considering the ages of the involved parties at the time of the offences.

Summary of the Judgment

The High Court of Justiciary upheld John Deeney's conviction for multiple counts of indecent assault against fostered minors aged between 9 and 17. Deeney appealed on the basis that the trial judge erred in directing the jury regarding mutual corroboration and sufficiency of evidence, emphasizing that certain actions occurred when he was below the age of understanding consent. The Appeal Court dismissed the appeal, affirming that the evidence presented, including the docket referencing events at ages 9 and 10, was admissible for mutual corroboration. The court held that these acts formed part of a systematic course of criminal conduct and that Deeney's capacity to consent or comprehend consent was irrelevant to the admissibility of the evidence.

Analysis

Precedents Cited

The judgment referenced several key precedents that shaped the court’s decision:

• MR v HM Advocate (2013 JC 212) - Established that mutual corroboration requires the related events to amount to a crime, facilitating inference of a systematic course of conduct.
• HM Advocate v Moynihan (2019 SCCR 61) - Affirmed that acts in a docket need not individually constitute offences if they collectively demonstrate a pattern relevant to the primary charge.
• Fisher v HM Advocate, HCJAC (2021) - Reinforced the admissibility of docket entries for corroborative purposes even if framed as charges they cannot independently support.
• CW v HM Advocate (2016 JC 148) - Clarified the use of underlying conduct to establish mutual corroboration in sexual offence cases.
• C v HM Advocate (1987 SCCR 104) - Highlighted the irrelevance of the accused's consent in proving indecent assault.
• RKS v HM Advocate (2020 JC 235) - Emphasized that evidence not objected to pre-trial remains admissible.

Legal Reasoning

The court meticulously dissected the appellant’s argument that mutual corroboration was flawed due to the age-related incapacity to consent and the legislative changes affecting the age of criminal responsibility. It was determined that:

• Mutual Corroboration: The events detailed in the docket, although occurring when Deeney was 9 or 10, were part of a continuous pattern of conduct. This pattern correlated with the primary charge, thereby satisfying the mutual corroboration requirement as per MR v HM Advocate.
• Admissibility of Docket Evidence: Section 288BA(1) of the Criminal Procedure (Scotland) Act 1995 permits the inclusion of acts in a docket connected to the charged offence, irrespective of their standalone legality. This principle was upheld in HM Advocate v Moynihan and Fisher v HM Advocate.
• Age and Consent: While the appellant argued that his understanding of consent was impaired due to age, the court found this irrelevant to the admissibility of the evidence. The primary focus was on the systematic nature of the offences, not on the appellant's cognitive capacity.
• Objection Procedures: The appellant failed to timely object to the relevance of the docket evidence, as mandated by Section 118(8) of the Criminal Procedure (Scotland) Act 1995, thus forfeiting the basis for appeal on this ground.

Impact

This judgment underscores the judiciary’s stance on the admissibility of corroborative evidence, particularly in sexual offence cases involving minors and adults. Notably:

• Strengthening Corroboration Standards: The decision reinforces that a systematic pattern of conduct can suffice for mutual corroboration, even if some acts fall below the age of consent or criminal responsibility, provided they are connected to the main offences.
• Admissibility of Docket Evidence: Legal practitioners must recognize that docket entries, even those referencing acts not individually prosecutable, can be pivotal in establishing a pattern of criminal behaviour.
• Procedure Compliance: The ruling emphasizes the importance of adhering to procedural requirements for raising objections, highlighting that failures in this regard can nullify appellate remedies.
• Legislative Clarity: The court clarified that subsequent legislative changes do not retroactively affect the admissibility of evidence or the interpretation of past conduct, maintaining legal consistency.

Complex Concepts Simplified

Mutual Corroboration

Mutual corroboration refers to the use of separate pieces of evidence that support each other, thereby reinforcing the credibility of the overall case. In criminal prosecutions, particularly for serious offences like sexual assault, courts often require that the accused's version of events is supported by additional evidence or testimonies. This ensures that convictions are based on a reliable and consistent body of evidence rather than isolated claims.

Docket Evidence

A docket is an additional charge or piece of information attached to the primary indictment that does not stand alone as an independent charge. In sexual offence cases, docket entries might include related acts that provide context or corroboration for the main offence. These entries help establish a pattern of behaviour that can substantiate the allegations against the accused.

Age of Criminal Responsibility

The age of criminal responsibility is the youngest age at which a person is deemed legally capable of committing a crime and being prosecuted. In Scotland, legislative changes have adjusted this age, impacting how offences involving minors are prosecuted. However, in this case, the appellant was above the age of criminal responsibility at the time of the alleged offences, rendering the age-related arguments moot in terms of mutual corroboration.

Section 288BA of the Criminal Procedure (Scotland) Act 1995

This section allows for the inclusion of additional acts in a docket connected to a main sexual offence charge. These acts can be related either to the same event or to a series of events and serve to support the primary charge by demonstrating a pattern of conduct, even if the acts themselves are not independently prosecutable.

Conclusion

The High Court of Justiciary's decision in John Deeney vs. Her Majesty's Advocate reinforces the judiciary's commitment to robust standards in establishing mutual corroboration within sexual offence cases. By upholding the admissibility of docket evidence and focusing on the systematic nature of the accused's conduct, the court ensures that convictions are firmly grounded in comprehensive and corroborated evidence. This judgment serves as a critical precedent for future cases, emphasizing the importance of pattern recognition in prosecuting complex offences and safeguarding the integrity of the judicial process.