Appeal under Section 107A of the Criminal Procedure (Scotland) Act 1995 by HMA against JSH (High Court of Justiciary)

Factual and Procedural Background

The Crown appeals mid-trial under section 107A of the Criminal Procedure (Scotland) Act 1995 against the trial judge's decision to sustain a submission of no case to answer on charges 6, 7, 10, 11, and 12 of a 20-charge indictment. The charges relate primarily to domestic abuse, including sexual offences, committed by the Defendant against members of his immediate family. The Defendant and his family adhered strictly to religious beliefs which influenced the conduct alleged. The charges involve various forms of sexual assault, indecent assault, and other abusive acts occurring over a period from 2003 to 2020, affecting the Defendant’s wife and daughters.

Legal Issues Presented

1. Whether the trial judge erred in sustaining the submission of no case to answer on charges 6, 7, 10, 11, and 12.
2. Whether mutual corroboration could be found among the charges to support the Crown’s case, particularly for charges 6 and 7.
3. Whether conduct alleged in charges 10, 11, and 12 had a sexual element sufficient to support sexual offence charges.
4. Whether the evidence on charges 10 and 12 could support convictions for assault if the sexual element was not established.

Arguments of the Parties

Appellant's Arguments

• All evidence should be considered together, with the Defendant’s religious justification and the family context being important.
• Charge 8, a sexual offence involving one daughter, could corroborate charges 6 and 7 involving the wife, and also give context to charges 10, 11, and 12.
• The evidence on charges 10, 11, and 12 had a sexual element or could be considered as such by the jury.
• The acquittals on the challenged charges should be quashed as the jury could find mutual corroboration among the charges.

Respondent's Arguments

• Accepted that charges 10 and 12 should not have been sustained as no case to answer, given alternative verdicts and sufficient evidence on charge 12 without corroboration.
• Argued there was no mutual corroboration for charges 6 and 7; charges 8 and 11 could not corroborate rape.
• Maintained that charges 10 and 12 involved physical discipline, not sexual conduct, and thus could not corroborate sexual offences.
• Relied on precedent indicating that differing offences without a course of conduct cannot support mutual corroboration.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the trial judge's decision in light of statutory provisions and case law on mutual corroboration and sexual offences. It noted that the trial judge considered charges 6 and 7 too dissimilar from charges 10, 11, and 12 to allow mutual corroboration. However, the court emphasized that the jury must determine questions of fact and degree, including whether conduct had a sexual element under section 60 of the Sexual Offences (Scotland) Act 2009, which requires an objective assessment of all circumstances.

The court found that the evidence on charges 10 and 12 could be sexual in nature and thus capable of corroborating charges 6 and 7. Similarly, charge 11, though not explicitly libelled as sexual, could be considered by the jury as having a significant sexual element. The court rejected the respondent's argument that charges involving physical discipline could not corroborate sexual offences, noting that the religious context and family circumstances linked the offences as part of a course of conduct.

Applying precedents, the court held that differences in offence type, timing, and severity do not preclude mutual corroboration if the offences can be seen as component parts of a single course of criminal conduct. The court underscored that it is not the judge's role at this stage to conduct an intensive evaluation of the evidence but to assess whether any view of the evidence could support mutual corroboration.

Accordingly, the court concluded that the trial judge erred in sustaining the no case to answer submissions on charges 10, 11, and 12, and that mutual corroboration was potentially available for charges 6 and 7 from other charges.

Holding and Implications

The court ALLOWED THE APPEAL, refused the no case to answer submissions on charges 6, 7, 10, 11, and 12, and remitted the case to the trial judge to proceed accordingly with all charges on the indictment.

This decision directly affects the parties by reinstating the charges for jury consideration and clarifies the application of mutual corroboration principles in complex familial sexual offence cases. No new legal precedent was established beyond the reaffirmation and application of existing principles.