Appeal against Conviction by Peter McGuiness against HMA (High Court of Justiciary)

Factual and Procedural Background

This appeal concerns a conviction for indecent assault committed between July 1992 and July 1995. The Appellant was found guilty by a jury at Glasgow Sheriff Court on 1 May 2024 and sentenced to three years imprisonment on the charge of indecent assault, alongside a lesser charge of breach of the peace for which he was admonished. The principal issue on appeal is whether evidence from a witness (referred to as DN) describing the complainer's distress many years after the alleged offences is capable of corroborating the complainer's evidence that the Appellant committed the crime.

The complainer met the Appellant as a child and was subjected to a course of grooming, including alcohol provision and sexual touching over several years. The complainer disclosed the abuse to DN sometime between 2004 and 2008, describing significant distress. At trial, the Appellant challenged the admissibility and corroborative value of DN's evidence, arguing that the disclosure was not a de recenti statement and that the distress was too remote in time to corroborate the offences.

Legal Issues Presented

1. Whether the complainer's disclosure to DN was a de recenti statement and thus admissible as corroborative evidence or inadmissible hearsay.
2. Whether distress exhibited many years after the alleged offence can be attributed to the crime and serve as corroboration.
3. Whether the trial judge's directions to the jury regarding the use of distress evidence as corroboration were adequate and legally correct.

Arguments of the Parties

Appellant's Arguments

• The complainer's disclosure to DN was not a de recenti statement and therefore inadmissible hearsay.
• The distress observed by DN occurred too long after the offences (approximately nine years later) to be considered corroborative; thus, the no case to answer submission should have been upheld.
• The sheriff's directions on distress as corroboration were inadequate, lacking guidance on the effect of the passage of time and how the jury should assess the evidence.
• The disclosure statement should have been directed as having no corroborative value and only relevant to understanding the cause of distress.
• The temporal latitude afforded to de recenti distress or statements cannot be extended to distress or statements made many years after the offence, supported by case law.

Respondent's Arguments

• The complainer's disclosure to DN was admissible as primary hearsay; the sheriff was correct to repel the objection.
• Evidence of distress is corroborative even if the interval between the offence and distress is lengthy, provided there is an explanation for the delay.
• There is no fixed time limit for distress to be corroborative; the jury should consider the circumstances and explanations for the passage of time.
• The sheriff's directions to the jury on distress and corroboration were adequate, requiring the jury to be satisfied that the distress was attributable to the offence.
• The jury was properly directed that only DN's evidence of distress was corroborative, and the accompanying statement was not presented as corroboration.
• Modern legal principles and statutory provisions support admission of distress evidence despite delayed disclosure in historical sexual offence cases.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by acknowledging established legal principles that distress observed de recenti—shortly after an alleged sexual offence—can corroborate the complainer's evidence. It reviewed recent authoritative decisions, including the Lord Advocate's References of 2023 and 2024, which clarified that de recenti distress means distress shown relatively shortly after the incident and under the uninterrupted emotional influence of the offence.

The court noted that while no fixed temporal limit exists, the longer the interval between the offence and observed distress, the less likely it is that the distress is causally connected to the offence. The jury must be directed to consider the timing, causation, and any intervening events.

Applying these principles, the court found that an interval of approximately nine years between the alleged offences and the observation of distress by DN could not be considered de recenti. Consequently, it was not open to the jury to find corroboration based on DN's evidence of distress. The sheriff erred in repelling the no case to answer submission on this ground.

The court further explained that the sheriff's approach, treating the disclosure as non-de recenti and inadmissible as corroboration while accepting the distress as corroborative despite the long delay, was inconsistent and illogical.

Regarding the admissibility of DN's testimony about the complainer's disclosure, the court observed that such evidence could be admissible as primary hearsay for purposes other than corroboration, such as explaining the cause of distress or rebutting attacks on credibility, but not as corroborative evidence given the lapse of time.

Given the decision on the central issue of corroboration and distress, the court found it unnecessary to determine the other grounds of appeal.

Holding and Implications

The appeal is allowed on the ground that the evidence of distress observed approximately nine years after the alleged offences cannot serve as corroboration of the complainer's account.

The court quashed the conviction for indecent assault. The direct effect is that the jury should not have been allowed to consider the charge based on the evidence of distress as corroboration. No new precedent was set beyond clarifying the application of existing principles regarding the timing of distress as corroborative evidence. The Crown confirmed it would not seek a retrial on the charge.