Court of Appeal — Summary of Opinion

Citation: [2025] HCJAC 40. Panel included Judge Armstrong and Judge Carmichael; opinion delivered by Judge Beckett. Appeal under section 107A Criminal Procedure (Scotland) Act 1995. Date of opinion: 20 August 2025. Parties: Appellant (the Crown) v Respondent.

Factual and Procedural Background

The Appellant appealed mid-trial under section 107A of the Criminal Procedure (Scotland) Act 1995 against a sheriff's decision at trial to sustain a submission of no case to answer in respect of one count (charge 2) within an indictment that retained eight charges in total. The Respondent faced multiple charges spanning a long period; the indictment named four separate complainers for different charges. The submission of no case to answer was based on alleged absence of corroboration for the complainer's evidence on charge 2 and, in particular, on asserted differences in time, nature and circumstances between that charge and other specified charges.

Brief summary of the main charges (anonymised):

• Charges 1 and 2 concern the Respondent's daughter (referred to below as Complainant A). Charge 1 (assault to injury) concerned the child at about age 5. Charge 2 (described as lewd, indecent and libidinous practices) concerned the child between about ages 7 and 11 and includes allegations of digital vaginal penetration, insertion of objects into the anus (portrayed as clothes pegs or similar objects), touching of genitals and other sexualised conduct over a multi-year period.
• Charges 3 and 4 concern the Respondent's son (Complainant B). Charge 3 (assault to danger of life) concerned him between ages about 5 and 7. Charge 4 (indecent assault) concerned a single occasion when he was about 15, alleged to involve insertion of a hammer handle into his anus.
• Charge 5 is a later, serious assault on Complainant B when he was a young adult.
• Charges 6–8 concern two 14-year-old girls in 2022 (Complainant C and Complainant D) and include allegations of inappropriate touching and a message requesting naked pictures. Complainant C is alleged to be a grandchild of the Respondent; the opinion notes family links between the complainers.

At trial the prosecutor initially relied on the doctrine of mutual corroboration (one complainer's account corroborating another) to defeat the no case submission on charge 2, but shortly before the hearing advanced that there was also free-standing corroborative evidence for charge 2. The Crown's free-standing material included social work records documenting unexplained faecal soiling that ceased after removal to a residential school, medical notes describing anogenital redness or rectal-wall redness at relevant times, and a police interview in which the Respondent made admissions or statements (for example, referring to pegs and to the child's behaviour with pins or pencils) that the Crown relied on as independent corroboration. The sheriff sustained the no case submission on charge 2, finding (i) that charge 4 was a single, non-sexualised incident perceived by that complainer as punishment, and (ii) that the long gap between charge 2 and charges 6–7 (described in the sheriff's reasoning as a gap of some decades) and the differences in ages and character of the incidents meant mutual corroboration could not be established.

The Appellant appealed that ruling under s 107A. At the appeal hearing defence counsel accepted that, given the evidence led (including the Respondent's statements to police and certain medical and social-work evidence), there was a free-standing corroborated case on charge 2 without recourse to mutual corroboration. The principal contested legal question remained whether sustaining the no case submission was correct in law, in particular whether the sheriff had erred in her treatment of mutual corroboration and in performing factual evaluation that should be left to a jury.

Legal Issues Presented

1. Whether the sheriff erred in sustaining a submission of no case to answer on charge 2 (lewd/indecent practices) when the Crown had led free‑standing corroborative material and relied on mutual corroboration from other charges.
2. Whether, as a matter of law, mutual corroboration could properly be found between charge 2 and charge 4 (the single alleged indecent assault on Complainant B involving insertion of a hammer handle).
3. Whether mutual corroboration could properly be found between charge 2 and charges 6–7 despite a long interval between the periods of offending and differences in ages and circumstances.
4. Whether the sheriff improperly performed an evaluative exercise on questions of fact and degree (including assessment of motive and the complainers' impressions) that should have been left to the jury under the governing test for no case to answer.
5. Whether there was free‑standing corroboration on charge 2 independent of any mutual corroboration, such that the no case submission should fail.

Arguments of the Parties

Appellant's Arguments (the Crown)

• The question whether incidents are sufficiently similar in time, character and circumstances to form part of a single course of criminal conduct is generally a question for the jury unless it is impossible on any view to so find; the Court of Appeal's recent authorities support this approach.
• The sheriff erred in placing decisive weight on the perceived motive or the complainer's impression regarding charge 4: motive is not determinative and an inference of sexual motivation could be available from the conduct and accompanying statements.
• A motive of sexual gratification is not a necessary element of a sexual offence at common law; therefore the absence of such an expressed motive does not preclude indecency or mutual corroboration.
• Differences in intensity or frequency (one incident versus a course of conduct) do not, as a matter of law, prevent mutual corroboration; a single incident can corroborate other incidents, depending on jury assessment.
• The Crown also advanced (late in the trial and before the appeal) that there was free‑standing corroborative material on charge 2 (social‑work and medical records and the Respondent's police interview) sufficient to defeat a no case submission.

Respondent's Arguments

• The sheriff correctly found there was no possible mutual corroboration between charge 2 and charge 4: the only similarity was insertion of an object into the anus, but charge 4 was a single episode perceived by that complainer as punitive rather than sexualised and involved an older, post‑pubescent child.
• The long interval between charge 2 and charges 6–7 (a multi‑decadal gap) and the differences in age (pre‑pubescent versus mid‑teenagers) were such that mutual corroboration could not be established; defence counsel relied on a body of authority to that effect.
• There was no compelling similarity or pattern extending across the charges sufficient to permit a jury to view the episodes as component parts of a single, systematically pursued course of criminal conduct.
• On reflection, defence counsel accepted that the evidence led included material that could amount to free‑standing corroboration of charge 2; counsel apologised that this had not been appreciated earlier in the trial.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
HM Advocate v SM (No 2) [2019] HCJAC 40; 2019 JC 183	Cited by the defence to support that differences or gaps may preclude mutual corroboration in some cases.	The court recorded reliance by defence but treated this among earlier authorities; it emphasised that later authorities (notably Adam and Duthie) have shaped the modern approach to mutual corroboration.
RB v HM Advocate [2017] HCJAC 24; 2017 JC 278	Cited by the defence as relevant precedent on assessment of similarity for corroboration.	Noted as a case relied on by defence; the court situated it among other authorities but did not treat it as determinative in light of subsequent appellate development.
RBA v HM Advocate [2019] HCJAC 56; 2020 JC 16	Cited by the defence in support of limits to mutual corroboration where incidents differ in time or character.	Recorded as part of the defence's foundation; the court observed that jurisprudence has continued to evolve and that issues of fact and degree are generally for the jury.
Adam v HM Advocate [2020] HCJAC 5; 2020 JC 141	Reiterated the high threshold for sustaining a no case submission: only where "on no possible view" could incidents be part of a single course of conduct should such a submission succeed; noted special considerations in child sexual‑abuse cases.	The court treated Adam as an important stage in the evolution of the law and relied on it to explain why the sheriff's evaluative approach was inappropriate; Adam supports leaving issues of course of conduct to the jury except in cases where no possible view exists.
GS v HM Advocate [2023] HCJAC 35; 2024 JC 35	Affirms that similarity in time, character and circumstances is normally a jury question unless it is impossible to say the incidents are part of one course of conduct.	The Appellant relied on GS to argue that the sheriff had usurped the jury's role; the court cited GS in support of that proposition.
HM Advocate v JSH [2025] HCJAC 37	Discussed the (ir)relevance of the accused's motive or the complainer's perception to the question of indecency/mutual corroboration.	The court cited JSH to reject the sheriff's reliance on perceived absence of sexual motive in charge 4 and to stress that motive is not decisive.
HM Advocate v BL [2022] HCJAC 15; 2022 JC 176	Recognises that a single incident may corroborate a long course of conduct in appropriate cases.	The court relied on BL to support the proposition that isolated and repeated incidents may still provide mutual corroboration and that the question is usually for the jury.
MR v HM Advocate [2013] HCJAC 8; 2013 JC 212	Affirms there is no rule that a lesser incident cannot corroborate a greater one.	Cited to show flexibility in how incidents may corroborate each other; used as part of the court's discussion of corroboration principles.
Duthie v HM Advocate [2021] HCJAC 23; 2021 JC 207	Held that, as a matter of law, a long time-gap case does not require a special, compelling or extraordinary circumstance before a jury may find a course of conduct.	The court relied on Duthie as establishing the modern correct approach and as overruling the earlier requirement (expressed in CS) that special circumstances were necessary as a matter of law in lengthy gap cases.
CS v HM Advocate [2018] HCJAC 54; 2018 SCCR 329	Earlier authority that had stated a requirement for special circumstances in long gap cases.	The court noted that CS was overruled by Duthie and therefore is no longer to be treated as a binding obstacle to jury assessment in such cases.
AS v HM Advocate [2014] HCJAC 135; 2015 SCCR 62	Example where a later offence (many years after earlier offences) was held capable of forming part of an overall course of conduct (generational interval discussion).	Used by the court as an example of prior decisions allowing mutual corroboration across lengthy intervals in appropriate circumstances.
JH v HM Advocate [2022] HCJAC 39; 2023 SCR 26	Shows that a gap of nearly two decades did not preclude the jury finding mutual corroboration.	Relied on as post‑Duthie authority illustrating that long gaps do not automatically defeat mutual corroboration.
DW v HM Advocate [2023] HCJAC 28; 2023 SCCR 248	Confirmed that it is not necessary to lead evidence to explain a gap in offending for the purposes of mutual corroboration.	Cited by the Crown and relied upon by the court to show that lack of evidence explaining an interval is not fatal to mutual corroboration.
Mitchell v HM Advocate [2008] HCJAC 28; 2008 SCCR 469	When sufficiency of evidence is in question, the evidence relied on by the Crown must be taken at its highest (treated as credible and reliable for the purposes of the sufficiency test).	The court applied the Mitchell principle to hold that the sheriff should have treated Crown evidence at its highest when considering the no case submission and should not have engaged in jury‑level factual evaluation.
Taylor v HM Advocate [2019] HCJAC 2; 2019 JC 71	Principle that corroboration of one charge can permit corroboration of another charge in appropriate circumstances.	Applied to explain how corroboration of charge 8 could assist in corroborating charge 7 by transitive corroboration principles.
Rysamanowski v HM Advocate [2019] HCJAC 88; 2020 JC 84	Similar to Taylor on the transitive application of corroboration between charges.	Cited together with Taylor to support the court's observation about how corroboration of one charge may assist corroboration of another.
Somerville v HM Advocate [2010] HCJAC 14; 2010 SCCR 299	Authority cited for the proposition that absence of apparent sexual motive is not decisive in determining indecency or corroboration.	Used (by way of JSH citation) to reinforce that motive is a factual issue for the jury and not determinative of indecency or corroboration.
Grainger v HM Advocate [2005] HCJAC 11; 2006 JC 141	Sets out that the test for indecent assault at common law is an objective one for the jury and does not depend on the perpetrator's subjective intention or motive.	The court relied on Grainger to state that whether the hammer‑handle incident constituted an indecent assault is an objective jury question and that the sheriff should not have excluded the possibility.

Court's Reasoning and Analysis

The court proceeded through a structured legal analysis that can be summarised in the following steps, faithful to the opinion's text:

1. The governing legal standard for sustaining a submission of no case to answer was restated: such a submission should only succeed where "on no possible view" could the jury find that the incidents complained of were component parts of a single course of criminal conduct persistently pursued by the accused. The court cited Adam and other authorities to confirm this high threshold.
2. The court emphasised the recent evolution in authority. In particular, the court described Adam as an important stage and Duthie as correct in holding that a long time‑gap does not, as a matter of law, automatically require the presence of special, compelling or extraordinary circumstances before a jury may find a course of conduct persistently pursued. Duthie was recorded as having overruled the contrary approach in CS.
3. The court explained the rationale for generally leaving questions of similarity, time and character to juries: apparent differences between episodes may not be truly distinctive (for example, grooming may progress from minor touching to serious abuse and may be interrupted by factors outside the accused's control). Such assessments involve questions of fact and degree, nuance, and impression that ordinarily fall within the jury's province.
4. Applying these principles to the facts, the court found that the sheriff had engaged in an impermissible evaluative exercise. The sheriff gave decisive weight to factual inferences (for example, the complainer's perception that charge 4 was punitive not sexual, and the existence of a 34‑year hiatus) and thereby excluded on her own view the possibility that a jury could find mutual corroboration. The court held that such assessments should normally be left to the jury unless the evidence, even at its highest for the Crown, could not in law permit a jury to reach such a conclusion.
5. On the specific question of charge 4, the court underlined that insertion of the hammer handle into the anus of the Respondent's son was plainly an assault and that whether it amounted to indecent assault was an objective question for the jury. Motive or the complainer's subjective characterisation of the incident was not decisive; Grainger and later authority establish that indecency is assessed objectively.
6. The court accepted that there was free‑standing corroborative material on charge 2. It identified the relevant elements relied on by the Crown: social‑work entries documenting unexplained faecal soiling that ceased after removal to a residential school, medical records noting anogenital/rectal redness on occasions around the period alleged, and the Respondent's statements in a police interview (in which he referred to pegs, pencils and the child's behaviour) made long before the complainer's allegations were disclosed. Taking that evidence at its highest, the court concluded it was sufficient to corroborate Complainant A's account.
7. On the question of mutual corroboration across charges, the court rejected the sheriff's conclusion that the gap in time between charge 2 and charges 6–7 was insurmountable. The court reviewed post‑Duthie authorities (including AS, JH and DW) demonstrating that long intervals do not automatically preclude jury findings of course of conduct; each case depends on its circumstances. The court held that differences in age or temporal gaps are matters for jury evaluation, not reasons for judicially concluding that corroboration is impossible on any view.
8. The court therefore concluded that the sheriff erred in sustaining the no case to answer submission on charge 2: the evidence, taken at its highest for the Crown, could sustain either free‑standing corroboration or mutual corroboration (the latter being a jury question), and the sheriff's factual evaluation improperly usurped the jury's role.

Holding and Implications

Holding: The court allowed the appeal, refused the submission of no case to answer in respect of charge 2, and remitted the indictment to the sheriff to proceed as accords on charge 2 and on all other charges.

Implications:

• Direct effect: The no case to answer ruling on charge 2 is overturned; trial proceedings are to continue before the sheriff on charge 2 and the remaining charges. The jury (or trial process) will therefore be permitted to consider the sufficiency of the Crown's case on the basis of the evidence led, including the Crown's free‑standing corroborative material and the possibility of mutual corroboration between charges.
• On mutual corroboration and long gaps: The court reaffirmed that long intervals between incidents do not automatically preclude the jury from finding a single course of criminal conduct; post‑Duthie authorities support that such questions are primarily for the jury, subject to the high "on no possible view" threshold for sustaining a no case submission.
• On motive and indecency: The court emphasised that whether conduct is indecent is an objective question for the jury and that the accused's motive or the complainer's perception is not decisive in law for excluding indecency or mutual corroboration.
• On sufficiency review: The court reiterated the Mitchell principle that, when a sufficiency challenge arises, the Crown's evidence must be taken at its highest for the purpose of that legal test. Judicial assessment must not usurp the jury's role by engaging in evaluations of fact and degree that the jury should undertake.
• Practice note: The court commented on the practical importance of up‑to‑date guidance (the Jury Manual) for judges and sheriffs faced with no case submissions mid‑trial and encouraged use of such materials to avoid unnecessary delay and mid‑trial appeals. The opinion also highlighted the statutory obligation (by necessary implication from s 97(2) of the 1995 Act) on a presiding judge to be satisfied, before sustaining a no case submission, that the Crown evidence is insufficient in law to justify conviction.

Core ruling (emphasised): APPEAL ALLOWED; NO CASE TO ANSWER SUBMISSION REFUSED; CASE REMITTED TO THE SHERIFF TO PROCEED ON CHARGE 2 AND ALL OTHER CHARGES.

This summary is strictly confined to the matters presented in the court's opinion and does not add facts or inferences beyond the text of that opinion. All personal identifiers from the source opinion have been replaced with anonymised placeholders for consistency.