Appellant: CM Mitchell; John Pryde & Co

Respondent: P Kearney AD; the Crown Agent

27 November 2014

Introduction
[1]        On 7 February 2014, following a 5 day trial at Hamilton Sheriff Court, the appellant was found guilty of 3 offences of a sexual nature.  The first was lewd, indecent and libidinous practices towards his son, JS, then aged between 6 and 12 years, between 1988 and 1994 at an address in Hamilton.  The second was using such practices towards his daughter, MS, then aged between 12 and 16, at another address in Hamilton between 1990 and 1992.  The final charge was a single sexual assault on SM, his granddaughter and the daughter of MS, a girl then aged 6, at the same address as in the second charge in June 2012.  The verdicts on the first two charges were unanimous, but by a majority on the third.  On 28 March 2014, the appellant was sentenced to 2 years imprisonment.

Evidence
[2]        In relation to the first charge, the evidence of JS was that, when the appellant returned home from being out drinking, he would enter JS’s bedroom, which JS shared with his younger brother.  The appellant would put his hand down the front of JS’s pyjamas and touch his genital area.  This occurred in the then family home in Hamilton.  It stopped when the family moved to a different address in that town, namely the locus in the remaining two charges.

[3]        In relation to the second charge, the events libelled occurred in the new family home and involved the appellant’s daughter.  She was in the habit of getting into her parents’ bed because of nightmares.  When she did this, she said that, on occasions, possibly when the appellant had had a drink, the appellant would touch her breast area and her private parts, over and under her pants, progressing to inserting his finger into her vagina. 

[4]        After the separation of the appellant and his wife, MS continued to live in the family home, latterly with her husband JM and their daughter SM.  On 2 June 2012, the appellant had returned home with JM, having been out drinking.  The appellant was quite drunk.  During the course of the evening, JM saw the appellant moving his hand towards the waistband of SM’s shorts.  He put his hand inside the front of these shorts.  This was at a time when SM’s younger brother was also in the room.

Submissions
[5]        The central contention for the appellant was that the sheriff ought to have sustained a no case to answer submission to the effect that there was insufficient evidence to prove the third charge in respect of SM in 2012, given the time lapse between that offence and those alleged to have occurred with the appellant’s children almost two decades earlier.  The submission had been repelled by the sheriff on the basis that she was satisfied that there was a close correspondence in the character, place and circumstances of all three charges, albeit that there was, what she phrased as, a “generational interval”, which explained the time gap. 

[6]        It was contended that  the principle of mutual corroboration outlined in Moorov v HM Advocate 1930 JC 68 did not apply in respect of the final incident in 2012, which occurred after an interval of 18 years.  There was no “course of conduct” involving that incident.  Where a long period of time had elapsed, the circumstances of each offence had to contain more than a superficial similarity.  Rather, there had to be special features which made the similarities compelling (AK v HM Advocate 2012 JC 74, at paras [13]‒ [14]).  In AK, a gap of some 13 years would have been regarded as too long in the absence of an extraordinary feature involving the use of certain words.  This case involved no such feature, nor was it one in which there was no opportunity to commit similar offences over the time period concerned.

[7]        It was accepted that there were similarities between the offences.  There were dissimilarities too.  For example, the first two charges involved behaviour occurring at night time in children’s bedrooms, when they would have been in their night clothes.  The final charge involved a single incident occurring during the course of the day in a livingroom with an adult in close proximity.  The time lapse between the offences pointed away from any course of conduct.  At best, the most recent incident demonstrated only a propensity to commit the same kind of offence. 

[8]        In response, the advocate depute submitted that, although the interval was a very long one, and there had been no reported cases involving a greater interval, the authorities demonstrated that there was no maximum period outwith which conviction could not follow.  Time was just one of the circumstances.  Whether it was too great depended upon the other features in the case.  In the normal situation, the assessment of whether the principle of mutual corroboration applied ought to be left to the jury.  In this case there were striking and compelling features which demonstrated that the offence in the third charge was simply part of a course of conduct begun with the first two offences.  There were the familial relationships.  There was what was effectively cross‒generational abuse; the gap being explained by the absence of opportunity after the older children had reached adulthood.  The conduct itself was strikingly similar, involving the appellant lying down beside the children and putting his hand inside their clothing in order to handle their private parts, or with that intention.  The places where the offences had happened, being the same family homes of the children was also a feature, as was the fact that the conduct took place in the presence of other persons.  There was the recklessness aspect fuelled by the consumption of alcohol.  The time interval could be explained through lack of opportunity (Stewart v HM Advocate 2007 JC 198 at paras [23] ‒ [24]).

Decision
[9]        As was recently set out in R v HM Advocate 2013 JC 212 (LJC (Carloway) at paras [20] and [21]), what is being searched for in a case of this type, in relation to whether the principle of mutual corroboration applies, are the conventional similarities of time, place and circumstances in the behaviour proved in terms of the libel, such as demonstrates that the individual incidents are component parts of the one course of criminal conduct persistently pursued by the accused.  Whether these similarities exist or not will often be a question of fact and degree, primarily for assessment by the jury under direction of the trial judge (Reynolds v HM Advocate 1995 JC 142 (LJG (Hope) at 146)). 

[10]      The particular relevance of a significant time gap between offences can only be determined in light of all the circumstances.  The more similar the conduct is in terms of character, the less important a significant time gap may be (Moorov v HM Advocate 1930 JC 68, Lord Sands at 88; Stewart v HM Advocate 2007 JC 198 (LJC (Gill) at paras [23] and [24])).  Compelling similarities will merit consideration of the whole circumstances by the jury, even where there has been a substantial interval of time (AK v HM Advocate 2012 JC 74 (LJC (Gill) at para [14])). 

[11]      There were significant similarities in the character of the offences in this case, notably the familial relationships between the appellant and the complainers and his close contact with all three children.  There was a similarity in the nature of the sexual conduct, including, as it did, the touching of private parts.  All the incidents took place within the family homes of the complainers, in which the appellant either lived or was a frequent visitor.  All appeared to have been committed when the appellant was under the influence of alcohol.  Each occurred when another person was present.

[12]      There were compelling or extraordinary features, capable of demonstrating that each offence was part of a course of criminal conduct persistently pursued by the appellant, albeit with, as the sheriff correctly put it, a generational interval of 18 years, during which the first two complainers had ceased to be children.  In these circumstances, the sheriff was correct to refuse the no case to answer submission and this appeal must be refused.