Introduction

The case of HMA v BL [2022] HCJAC 15 presents a significant appellate decision by the Scottish High Court of Justiciary concerning the evaluation of mutual corroboration in allegations of child sexual abuse. The appellant, Her Majesty's Advocate, challenged a temporary judge's decision to sustain a no case to answer submission. This submission was based on the determination that the evidence supporting two separate charges lacked the necessary mutual corroboration. The key issues revolved around whether the trial judge appropriately assessed the evidence or whether such evaluations should be reserved for the jury.

The parties involved include Her Majesty's Advocate as the appellant, and BL, represented by F Connor and John Pryde & Co of Blackwater Law, Glasgow, as the respondent. The appellate court was presided over by Lord Justice General Lord Woolman, Lord Pentland, and the judgment was delivered by Lord Carloway.

Summary of the Judgment

The High Court of Justiciary allowed the appeal brought forward by Her Majesty's Advocate, thereby overturning the temporary judge's decision to sustain the no case to answer submission. The original judgment had concluded that the evidence related to two separate charges against BL lacked mutual corroboration, a basis for dismissing the case without it proceeding to a jury. However, the appellate court emphasized that in cases involving child sexual abuse, the assessment of mutual corroboration should predominantly be within the purview of the jury rather than the judge.

The defendant, BL, faced two charges: the first involved alleged misconduct towards his sister, including making sexualized comments and inappropriate physical contact when she was between seven and nine years old. The second charge involved more severe allegations towards his brother, including inducing masturbation and oral sexual penetration between June 1980 and December 1981. The judge had initially deemed the evidence insufficiently corroborative, citing dissimilarities in the nature and severity of the allegations.

Upon appeal, the High Court clarified that while dissimilarities existed, the overall context and proximity in time and location warranted the case to be considered by a jury for mutual corroboration assessment. The court emphasized the high threshold required for sustaining a no case to answer submission, particularly in cases involving the sexual abuse of children.

Analysis

Precedents Cited

The judgment references several key precedents that shape the court's approach to mutual corroboration in criminal cases:

• HM Advocate v P [2015] SCCR 403: Established that mutual corroboration cannot be applied universally across all cases.
• Reynolds v HM Advocate [1995] JC 142: Sets the standard for sustaining a no case to answer submission, requiring that no possible view of the evidence connects the offenses.
• MR v HM Advocate [2013] JC 212: Clarifies that evidence of lesser criminal conduct can corroborate more serious conduct.
• Adam v HM Advocate [2020] JC 141: Suggested that cases involving the sexual abuse of children by adults be left to jury assessment, a point which was critical in this judgment.
• HM Advocate v SM (No. 2) [2019] JC 183: Reinforced the principles regarding mutual corroboration and the jury's role in assessing similar cases.

These precedents collectively influenced the court's decision to reinforce the jury's role in evaluating mutual corroboration, especially in sensitive cases of child sexual abuse where the nature and severity of allegations can vary significantly.

Legal Reasoning

The court's legal reasoning centered on reaffirming the jury's central role in assessing whether multiple allegations against an individual are mutually corroborative. The temporary judge had overstepped by delving into a detailed analysis of the similarities and dissimilarities between the charges, thereby encroaching upon the jury's evaluative domain.

Lord Carloway, delivering the opinion of the Full Bench, emphasized that mutual corroboration is a nuanced assessment best handled by a jury trained to consider the subtleties of such evidence. The appellate court underscored that a no case to answer submission should only be upheld when there is unequivocal evidence that no connection exists between the individual incidents, which is an exceedingly high standard to meet, particularly in cases involving the sexual abuse of children.

The court criticized the temporary judge for conducting an "intensive analysis" of the accounts, which should instead remain the jury's responsibility. By remitting the case back to the judge to proceed accordingly, the appellate court ensured that the jury would properly evaluate the mutual corroboration without judicial overreach.

Impact

This judgment has substantial implications for future cases, particularly those involving multiple allegations of child sexual abuse. It reinforces the principle that juries are the appropriate bodies to assess the credibility and corroborative value of such evidence. Judges are reminded to refrain from detailed factual analyses that should be left to the jury’s discretion.

Furthermore, the decision sets a precedent that makes it more challenging to sustain no case to answer submissions in similar cases, thereby potentially allowing more cases to proceed to trial. This ensures that allegations are thoroughly examined in a jury setting, promoting fairness and thoroughness in the judicial process.

Complex Concepts Simplified

Mutual Corroboration

Mutual corroboration refers to the process by which two or more separate pieces of evidence (often from different witnesses) support each other, thereby strengthening the overall case against the defendant. In the context of child sexual abuse cases, mutual corroboration is crucial because it can provide a more comprehensive picture of the alleged misconduct.

No Case to Answer Submission

A no case to answer submission is a legal argument raised by the defense after the prosecution has presented its case, suggesting that even if all the prosecution's evidence is true, it is insufficient to sustain a conviction. If successful, this submission can lead to the case being dismissed without it proceeding to the jury for deliberation.

Jury's Evaluative Role

The jury's role is to impartially assess the evidence presented during a trial and determine the credibility and reliability of that evidence. In cases involving allegations of child sexual abuse, the jury is responsible for evaluating whether the evidence from different complainers corroborates the defendant's misconduct.

Conclusion

The judgment in HMA v BL [2022] HCJAC 15 is a pivotal reaffirmation of the jury's essential role in assessing mutual corroboration, particularly in sensitive and complex cases of child sexual abuse. By overturning the no case to answer submission, the High Court of Justiciary has underscored that such determinations are best left to the jury, thereby preserving the integrity and thoroughness of the judicial process.

This decision serves as a crucial guidepost for future cases, ensuring that allegations are examined with the necessary depth and sensitivity they warrant. It emphasizes the high threshold required to dismiss cases without jury consideration, thereby promoting justice and fairness in the Scottish legal system.