Appellant: Keenan; Capital Defence Edinburgh

Respondent: Prentice QC; Crown Agent

17 April 2014

[1] The only issue which arises in this appeal is that focused in the first question to the stated case, namely whether there were sufficient circumstances of similarity between the evidence of the complainer on charges 1 and 2 and the evidence of complainers on other charges for the doctrine of mutual corroboration to be applied. Leave to appeal against the other charges was refused by the judge at first sift and there was no attempt to reinstate the challenge against conviction on those charges.

[2] As before the sheriff, it was argued first, that the lapse of time between the latest date in charge 2, 31 December 1969, and the earliest date of the subsequent allegations, 1 January 1978, was too great to apply the doctrine between the two sets of charges; and second, that the locus of the alleged offences in charges 1 and 2 were so different from those in the other charges that the doctrine could not apply. The locus in charge 1 was a motor vehicle in a public street, and in charge 2 was the complainer's parents' house when they were present, whereas the bulk of the remaining charges were said to have occurred in private or in the presence of only very young children.

[3] In relation to the doctrine of mutual corroboration the sheriff had regard to MR v HMA [2013] HCJAC 8 where the court said:

"[20] What the court is looking for are the conventional similarities in time, place and circumstances in the behaviour proved in terms of the libel ........... such as demonstrate that the individual incidents are component parts of one course of criminal conduct persistently pursued by the accused ...... Whether these similarities exist will often be a question of fact and degree..."

The sheriff noted that the behaviour was always towards someone with whom the appellant had a close emotional and domestic relationship, and showed a similar pattern of behaviour within each such relationship. The sheriff observed that there was no maximum interval of time beyond which the doctrine could not be applied, and the time lapse required to be considered in the context of the appellant's marital history, since the behaviour took place in the context of marital relationships.

[4] In determining whether it is permissible, as a matter of law, to find corroboration for the evidence of the first complainer in the evidence led in support of the remaining charges it is not appropriate to look at the evidence in the narrow and compartmentalised way contemplated in the submission advanced on behalf of the appellant. Rather, what matters is whether there can properly be said to be an underlying similarity of conduct described in the evidence, regardless of the labels attached to that conduct in individual charges or the place where the conduct has taken place or the time at which they are said to have taken place. The fundamental point is that the issue is whether the evidence is capable of indicating a course of conduct systematically pursued by an accused. The individual behaviour exhibited at different times may vary, but it is the course of conduct as a whole which must be examined. Looking at the matter this way, the sheriff was entitled to conclude that there was such an underlying similarity in the conduct described as to enable her to conclude that they were all part of the same course of conduct systematically pursued by the appellant.

[5] In relation to charges 1 and 2, the appellant's first wife had spoken of violence towards her before, during and after their marriage. The final incident, to which she spoke, charge 3, occurred during a subsequent reconciliation, which took place between the appellant's second and third marriages. His second wife spoke of similar behaviour during that marriage and whilst separated, whilst his third wife spoke of behaviour before and during the marriage. In our view it is entirely artificial to seek to compartmentalise the evidence of the first complainer in relation to charges 1 and 2, when in fact the complainer spoke of a course of conduct towards her, at periods when she was in a relationship with the appellant. We consider that the sheriff was entitled to hold that there was here a course of criminal conduct in the form of serial violence to successive domestic partners, and we will answer the first question in the negative.