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Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> APPEAL AGAINST CONVICTION AND SENTENCE BY PGT AGAINST HER MAJESTY'S ADVOCATE [2020] ScotHC HCJAC_14 (02 April 2020)
URL: http://www.bailii.org/scot/cases/ScotHC/2020/2020_HCJAC_14.html
Cite as: 2020 JC 205, 2020 GWD 13-190, [2020] HCJAC 14, [2020] ScotHC HCJAC_14
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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2020] HCJAC 14
HCA/2019/331/XC
Lord Justice General
Lord Brodie
Lord Turnbull
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
APPEAL AGAINST CONVICTION AND SENTENCE
by
PGT
Appellant
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: Shand; The Cumbernauld Law Practice
Respondent: Edwards QC, AD; the Crown Agent
2 April 2020
General
[1] On 8 May 2019 at the High Court in Glasgow the appellant was convicted of
3 charges as follows:
“(1) On an occasion between 13 March 1997 and 12 March 1999 … at an address in
Beechwood Road … Cumbernauld you … did indecently assault [GT] born … 1985,
your nephew, and did induce him to consume alcohol, remove his lower clothing,
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2
touch his penis, masturbate him, push him face down onto a bed, lie on top of him,
penetrate his anus with your penis and have unnatural carnal connection with him;
(2) on an occasion between 1 … and 31 March 2000 … at an address in
Beechwood Road, Cumbernauld … you … did indecently assault [GT], born … 1985,
your nephew … and did touch his penis and testicles over his clothing; and
(3) on an occasion between 1 January … and 31 December 2006 … at …
Dalshannon Place, Cumbernauld you … did assault [BT] your wife … and did seize
hold of her, remove her lower clothing, lie on top of her, penetrate her vagina with
your penis and you did thus rape her.”
The appellant was sentenced to 10 years imprisonment.
Evidence
[2] The complainer in charges (1) and (2) is the appellant’s nephew. On the first charge,
he spoke to an incident in which, as libelled, the appellant had assaulted him and committed
an act of sodomy. This took place when the complainer was 12 or 13 years of age. He had
gone to the appellant’s home in Cumbernauld in response to a request to fix a computer.
The appellant had given the complainer alcohol, which had made him feel dizzy. The
complainer and the appellant had gone into a bedroom. The complainer remembered lying
on his back. The appellant had come in, removed the complainer’s clothing and committed
the act libelled. He said to the complainer that he (the complainer) was the black sheep of
the family and that he would get him into trouble with his parents unless he co-operated.
This made the complainer afraid, as he did not wish to upset his mother and father.
[3] The second charge related to an incident in March 2000 when the complainer was
15 years of age. It also occurred in the appellant’s home, after a party at the complainer’s
grandparents’ home to celebrate their golden wedding. The complainer had been drinking
at the party. He was given more drink when he arrived at the appellant’s home. The
incident took place in the bedroom. The appellant threatened to tell the complainer’s
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parents about his (the complainer’s) bad behaviour unless he co-operated. The appellant
began to touch the complainer’s private parts over his clothing. The complainer was
frightened and ran out of the house. He did not tell anyone about either incident until 2017,
when he reported it to the appellant’s former wife (BT) who was the complainer in the third
charge.
[4] BT gave evidence about charge 3. It had occurred in 2006 when she and the
appellant had returned home after a social event. The appellant was “very drunk”. The
complainer had wanted to go to sleep and had put the light out. The appellant became
angry. He had said “you’re my wife so don’t turn off the light”. He said that he could tell
her what to do, because she was his wife. He told her that she was not going to sleep. He
then removed her lower clothing, lay on top of her and raped her. After the incident, the
appellant told the complainer not to tell her parents or sister about what had happened. He
gave her £10 to “keep her mouth shut”. The complainer had not told the police about the
incident until 2017, when she had told the complainer in charges 1 and 2.
[5] The trial judge repelled the no case to answer submission on the basis of the
following similarities between the offences which were said to permit the application of
mutual corroboration: (1) the offences took place in the appellant’s home; (2) both major
incidents involved forced penile penetration; (3) both complainers were vulnerable; (4)
each was a relative of the appellant; (5) in each crime the appellant removed the
complainer’s lower clothing; (6) the crimes were committed in a bedroom with no-one else
present; (7) in each crime the appellant took steps to ensure that the complainer did not tell
anyone else; and (8) both crimes were committed when both complainers were under the
influence of alcohol, to a greater or lesser extent, and the appellant had also consumed
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alcohol. The judge took the view that the time gaps involved were not so lengthy that
compelling or extraordinary similarities were needed.
Advocate depute’s speech
[6] During the course of his address to the jury, the advocate depute explained why, in
his submission, the jury should accept the complainer GT’s evidence. This was that it was
not the only evidence in the case. Quite apart from the application of mutual corroboration,
the advocate depute said:
“Why, you might ask yourselves would two entirely different people come forward
and make such similar allegations against this man? Given what you heard from
[the police] regarding the accused’s position at interview and the lines of cross-
examination … it is clear that it is the accused’s position that both complainers are
lying. But why? Why would both complainers say these things about the accused?
Why would both [GT] and [BT] accuse him of, in effect, the same thing? ... [T]he
answer is obvious: because they are telling the truth. [GT’s] account is fully
supported by that of [BT] because … If you step back and look at the case as a whole,
they are really speaking about the same thing. They have both accused [the
appellant] of abusing and sodomising or raping them because that is precisely what
he did”.
[7] In relation to BT’s evidence, which was said to be corroborated by that of GT, the
advocate depute submitted that:
“The evidence of those two people make it crystal clear that the accused pursued a
course of criminally sexual conduct towards them and that they were in effect, both
speaking to the same thing. I have already explained why I suggest that that is so
and I will not waste your time further in that regard.”
Charge
[8] The trial judge gave the jury the standard directions on the application of mutual
corroboration. He explained that, if the jury were satisfied that the crimes charged were so
closely linked by their character, circumstances, place and time as to bind them together as
parts of a single course of criminal conduct systematically pursued by the accused, then the
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evidence of a single witness about the commission of one crime could be sufficiently
corroborated by the evidence of another single witness about the commission of another
crime or crimes. It was the underlying similarity of the conduct which had to be considered
in determining whether the principle applied. In order to convict of any of the charges the
jury had to accept the complainers as credible and reliable. The judge continued:
“... [I]t is the underlying similarity of the conduct ... which you have to consider in
deciding whether the doctrine applies. It does not matter that the charges have
different names or are more or less serious. For the doctrine to apply, you have to
believe the witnesses who speak to the individual charges at least about the essential
parts of their evidence which you must also find to be reliable.
... [I]f you do not believe a complainer ... or you do not find his or her evidence to be
reliable, that charge cannot be proved and you would be bound to acquit the accused
of it. If you do accept the evidence of a complainer ... you may be able to find
corroboration from the other witness who speaks to a different charge alleging
broadly similar conduct.
If you do accept that witness’s evidence, you then have to decide if, by reason of the
character, circumstances, place of commission and time of each charge, the crimes are
so closely linked that you can infer that the accused was systematically pursuing a
single court of criminal conduct. ...[I]t is not enough if all that is shown is that the
accused had a general disposition to commit this kind of offence.
… You have to apply this rule with caution, particularly where there are significant
intervals of time as there may be in this case and where there are only two witnesses,
which of course the bare minimum permissible in order to allow the doctrine to be
applied. … The Crown says that the rule can be applied in this case. It relies on the
points of similarity, which were highlighted to you by the advocate depute in his
speech.
If there are significant differences in the circumstances or the individual charges, it
does not mean that you cannot find that there is mutual corroboration but the
differences would form part of your exercise of evaluation as to whether it was being
shown that there was a single course of conduct.
[Counsel] for the accused says that the rule should not be applied. He relies upon
the points of dissimilarity which he highlighted to you in his speech. …
… It is entirely a matter for you to decide whether the rule can and should be applied
in this case. … “
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Submissions
Appellant
[9] The appellant submitted, first, that there was insufficient connection between
charges 1 and 2 on the one hand and charge 3 on the other to allow the application of mutual
corroboration. On no reasonable view could it be said that the circumstances were such as
to demonstrate that the individual incidents were component parts of one course of conduct
HM Advocate [2020] HCJAC 5). Mutual corroboration could be applicable between charges
with a comparable level of similarity but with a much shorter time gap. It could be
applicable between charges with a comparable time gap when the level of similarity was
much greater. It had no application in cases such as the present where the circumstances
were not particularly similar, the time gap between them was significant and the number of
occasions when the behaviour was said to have taken place was small. It was the time gap
which appeared from the evidence which was important; not that libelled in the charge.
There was a lack of evidence on when the offences had occurred.
[10] When determining whether it could be inferred that two incidents were truly
component parts of a course of conduct persistently pursued, time was a crucial
at para 28). There was no arbitrary dividing line between long gap cases, which required
compelling or extraordinary similarities, and standard gap cases, which did not. The
question was always whether the allegations were capable of being considered as
constituent parts of a course of conduct persistently pursued. A lack of strength in one
similarity required extra force from the others (Tudhope v Hazelton 1985 SLT 209 at 212 citing
Ogg v HM Advocate 1938 JC 152). It was not possible to lay down a maximum period beyond
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minimum gap of 7 years was substantial (ibid).
[11] The observations in Reynolds v HM Advocate 1995 JC 142, that the application of
mutual corroboration was something which should be left to the jury unless on no possible
view could it be said that there was any connection between the charges, were, if not wrong,
prone to be misunderstood. They involved an incorrect understanding of what was said in
Moorov. What had been said in Reynolds was merely shorthand for saying that a submission
ought only to be sustained when, on no possible view of the similarities and dissimilarities
in time, place and circumstance, could it be held that the individual incidents were
component parts of one course of conduct persistently pursued (A(R) v HM Advocate 2019
country” and “middle ground” tended to suggest the existence of wide open expanses in
which the matter would lie within the province of the jury. Donegan v HM Advocate (supra)
was also apt to be misunderstood. It was not correct to say that, at the stage of a no case to
answer submission, it did not matter if there were dissimilarities. The court rejected the idea
that it was only in extreme cases that a no case to answer submission should be upheld (RF v
HM Advocate 2016 JC 189 at para 23). The role of the trial judge at that stage was more
significant than some of the observations in Donegan might suggest. The need for the court
to conduct a vigorous analysis of the evidence was doubly important, given the risks in a
mutual corroboration case. Donegan was contrary to Moorov and the reasoning in it could
not be justified by reference to Reynolds. The principle in Moorov had been developed since
the 1930s, but there were now expressions of opinion to the effect that it had been extended
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[12] It was not enough simply to catalogue some similarities and to dismiss others for
mutual corroboration to apply. There required to be an overall similarity (HM Advocate v
SM (No 2) 2019 SCCR 262 at para [8]). The phrase “a course of conduct” may be a useful
shorthand, but it came with the rider of “systematically pursued” (RB v HM Advocate 2017
JC 278 at paras [21-22]). The charges involved only 2 complainers and 3 incidents. There
was a significant passage of time between charges 1 and 2 on the one hand and 3 on the
other. The similarities indicated little more than a disposition towards general sexual
offending. Whilst each offence occurred in the context of familial relationships, that was no
more than a coincidental connection.
[13] The second ground of appeal was the failure of the trial judge to correct the error in
the advocate depute’s speech in relation to using the similar nature of the different charges
in the assessment of the complainers’ credibility and reliability. The correct approach was
for the jury to assess the credibility of each complainer separately, based solely on their own
testimony and any other evidence specifically relating to the particular allegation, and
without reference to testimony concerning other allegations. Only if the jury found each
complainer to be credible and reliable could they go on and consider the applicability of
mutual corroboration. The trial judge ought to have a clear and emphatic direction that the
approach advocated by the advocate depute was incorrect. He should have directed the
jury that it was not open to them to use another sexual allegation by a different complainer
to support the credibility and reliability of a complainer in a general way, separate from and
prior to its use as corroboration. The obiter opinions of the court in Dreghorn v HM Advocate
correct.
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[14] Thirdly, the trial judge had misdirected the jury in relation to the approach to mutual
corroboration. The direction, that the existence of significant differences in the
circumstances did not mean that the jury could not apply mutual corroboration, was
inconsistent with the correct direction that the circumstances had to be “so closely linked” to
bind them together as a single course of conduct systematically pursued. Given the time
gap, the jury required to find more than simply “broadly similar” conduct. It was
incumbent on the judge to give the jury a direction that they would need to find some
special feature of the behaviour which rendered the similarities compelling (see Scottish Jury
at para [11]). It was the existence of the significant time gap that triggered the direction
recommended in the Jury Manual. If the time gap was not sufficient to require the
suggested direction, some other direction should have been given to make it clear that the
longer the time gap, the greater the need for strong similarities in character and
Respondent
[15] The advocate depute submitted that the evidence led was eloquent of a single course
of criminal conduct persistently pursued by the appellant. The trial judge had correctly
allowed the matter to be considered by the jury. Although there was no maximum interval
beyond which mutual corroboration could not apply, where there was a decrease in the
similarities in time, there required to be a corresponding increase in the similarities of
circumstance. Where the gap was significant, extraordinary features of circumstance were
paras [14-15]; and Adam v HM Advocate (supra) at para [35]). No compelling or extraordinary
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similarities were required in this case (RMY v HM Advocate (supra) at para [5]). There was
sufficient evidence, as described by the trial judge, from which it could be inferred that the
individual incidents were component parts of the requisite course of conduct. Whilst there
were dissimilarities, mutual corroboration could still apply (Livingstone v HM Advocate 2014
SCCR 675 at para [17]). It could not be said that on no possible view could the episodes be
regarded as component parts of such a course (Reynolds v HM Advocate (supra) at para [146];
and HM Advocate v SM (No. 2) (supra) at para [8]). The offences occurred in a domestic
setting against a background of coercion and control. Taken in conjunction with the
penetrative nature of the sexual activity, the totality of the conduct displayed the requisite
para [8]).
[16] The jury were entitled to take into account the totality of the evidence when
approaching credibility and reliability of the complainers (Dreghorn v HM Advocate 2015
SCCR 349 at para [35]). Although mutual corroboration concerned sufficiency, it could also
assist in determining whether the testimony of a witness should be accepted (Adam v HM
Advocate (supra) at para [28]). The comments of the advocate depute had not detracted from
the cautionary directions given by the trial judge.
[17] The charge required to be looked at as a whole (Walker v HM Advocate 2014 JC 154 at
para [25] ). The reference by the judge to “broadly similar conduct” had to be seen in its
context, which was within his directions on mutual corroboration. The direction was at that
point in the charge when the judge was directing the jury that they had to consider the
course of conduct regardless of the particular nomen criminis. The trial judge required to
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Decision
[18] The first question is whether the testimony of the two complainers displayed the
requisite similarities in time, place and circumstance, such as could demonstrate that the
individual incidents were component parts of one course of criminal conduct persistently
pursued by the accused. Whether those similarities exist is a question of fact and degree
212). It is only where “on no possible view” could it be said that the individual incidents
were component parts of such a course of conduct that a no case to answer submission
should be upheld (ibid, citing MR v HM Advocate (supra); Donegan v HM Advocate 2009 SCCR
106; and Reynolds v HM Advocate 1995 JC 142). In this case, for the application of mutual
corroboration, where there was a gap of several years between the offences, the similarities
in the place and circumstances of the offences required to be such as allowed the jury
nevertheless to draw the appropriate inference relative to a course of criminal conduct
persistently pursued. As detailed by the trial judge (supra) at para [5], there were such
similarities, notably the familial circumstances of the offences and the fact that they took
place in the appellant’s home. There were other similarities and dissimilarities, but it could
not be said that on no possible view could the jury draw the appropriate inference. In the
event they did so. The first ground of appeal accordingly fails.
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[19] The appellant’s second contention, that the credibility of a complainer in a mutual
corroboration case should be tested within a single silo containing only evidence relating to
that complainer’s allegation, contemplates a situation whereby, no matter how many
complainers have made allegations against an accused, perhaps of a very similar nature, the
fact of the multiplicity of complaints cannot be taken into account in the credibility equation.
(Carloway) at para [35], Lady Cosgrove at para [48]; see also Adam v HM Advocate (supra) at
para [26]). Reference was made in Dreghorn to the reasoning in Attorney-General of Hong
Kong v Wong Muk Ping [1987] AC 5011 in which the Privy Council (Lord Bridge at pp 510-
512) stated that potentially corroborating testimony can be taken into account in the
assessment of the credibility of the witness whose testimony requires corroboration. In light
of the submission made by the appellant, it may be of value to dig a little deeper into the
Privy Council’s reasoning to see how it might resonate in Scots law.
[20] The problem, which arose in Wong Muk Ping, concerned the principle whereby the
trial judge required to direct the jury on the dangers of convicting a person on the basis of
the uncorroborated testimony of accomplices. At that time, the same principle applied in
Hong Kong to the evidence of complainers in sexual offences and that of young children.
The ground of appeal against conviction had been the trial judge’s failure to direct the jury
that the evidence of an accomplice had to be regarded as credible before it could be used as
corroboration. In particular, the contention was that the jury had, first, to consider the
credibility of the testimony of the “suspect” witness in isolation from the other evidence in
1 The citation at para [35] in Dreghorn to R v Morris is wrong and misplaced. It may have been
intended to be a reference to Morris (1969) 54 Cr App R 69, but that pre-dated Wong Muk Ping. See,
however, Willoughby (1989) 88 Cr App R 91 at 94 and Jelen (1990) 90 Cr App R 456 at 462.
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the case. If they did not find it credible, it had to be rejected in limine. Only if the jury found
the testimony to be credible could the jury proceed to the second stage and use it as
corroboration. The precise dictum of the court was as follows (at 510):
“It is a commonplace of judicial experience that a witness who makes a poor
impression in the witness box may be found at the end of the day, when his evidence
is considered in the light of all the other evidence bearing upon the issue, to have
been both truthful and accurate. Conversely, the evidence of a witness who at first
seemed impressive and reliable may at the end of the day have to be rejected. Such
experience suggests that it is dangerous to assess the credibility of the evidence given
by any witness in isolation from other evidence in the case which is capable of
throwing light on its reliability; it would ... be surprising if the law requiring juries to
be warned of the danger of convicting on the uncorroborated evidence of a witness ...
should have developed to the point where ... the jury must be directed to make such
an assessment of credibility in isolation.”
It was, in short (at 511), wrong to direct the jury to adopt a two stage test.
[21] Generally, evidence is admissible if it is relevant to proof of a fact in issue; ie that it
makes that fact more or less probable. That is subject to certain rules of evidence which
exclude testimony on various grounds or prohibit its use for particular purposes. It is
important that, in so far as it is necessary to do so, these rules can be explained to juries in an
intelligible manner (see generally Scottish Law Commission: Hearsay Evidence in Criminal
Proceedings (SLC no. 149) para 2.3 et seq). As a generality however, subject to these rules,
once evidence is deemed admissible, it is available for the jury’s consideration at large in the
manner which the jury deem appropriate. It is simply not practicable, nor does it accord
with common sense, to direct a jury that, although they, as well at the trial judge, may, in the
modern era, require to determine whether a complainer’s testimony is formally corroborated
by that of another, they cannot take the existence of that other’s testimony in determining
whether the first complainer’s account is credible and/or reliable. It defies reason to suggest
that the existence of a second complainer, with an account of the same nature as is required
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to establish mutual corroboration, can play no part at all in assessing the credibility of the
first complainer and vice versa.
[22] The exercise for the jury is not one to be carried out in isolation or in strict sequence.
The jury require to determine whether they accept the complainers as credible and reliable.
They also need to decide whether mutual corroboration is applicable. If the jury does not
consider both (or more) complainers to be credible and reliable, or if the jury consider that
mutual corroboration does not apply, an acquittal must follow. How a particular jury goes
about these tasks, which are concerned with the assessment of matters of fact, is for the jury
to determine. There may be a degree of circularity, but it is none the worse for that. In some
cases the value of the other complainer’s evidence in the assessment of credibility and
reliability may be minimal. In others, where the similarities are great, it may be
considerable. These considerations fall firmly into the jury’s province and involve a
practical application of the jury’s combined intelligence and experience. In the Scots system,
as explained in Adam v HM Advocate (supra) at para [26], there is already a limiter on the
type of evidence which is put before a jury for this exercise, notably the exclusion of general
similar facts evidence which is not capable of providing mutual corroboration in the
conventional manner. The trial advocate depute’s approach in addressing the jury cannot be
faulted. There was no need for a correction by the trial judge. This ground of appeal is
rejected.
[23] On the third ground of appeal, the trial judge’s directions on the application of
mutual corroboration were unexceptionable. He stressed the need to hold that it could only
apply if the jury held that the incidents were parts of a single course of conduct
systematically pursued by the appellant. He focussed the jury’s mind on the necessity to
find an underlying similarity in the conduct. He said that mutual corroboration had to be
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applied with caution, particular where there were significant intervals of time and only two
complainers. The reference to “broadly similar conduct” was made in the context of a
direction that it was not necessary for the nature of the conduct to involve the same crime or
level of seriousness. No misdirection is apparent. This ground also fails, with the
consequence that the appeal against conviction is refused.
Sentence
[24] The trial judge described the circumstances in charge 1 as a vicious attack, involving
forced penile penetration committed against a 12 or 13 year old child. Charge 3 was the rape
of the appellant’s wife in circumstances in which he sought to exert control and authority
over her as her husband and subjected her to a cruel and humiliating attack. The appellant
had three previous convictions, all of which were for sexual offences. In 1980 he had been
placed on probation on 4 charges of lewd and libidinous practices. In October 1980 in
relation to that case, he had been committed to a mental hospital. In 1983 he was placed on
probation in respect of 2 charges of lewd and libidinous practices. In 1985 he was convicted
of assault with intent to ravish and again committed to a mental hospital. He was
transferred to the State Hospital Carstairs, where he remained until 1988. He was
discharged conditionally from Lennox Castle Hospital in 1992. Although the appellant did
not suffer from a mental disorder, he was of low intelligence and suffered a degree of
learning disability.
[25] It was submitted that 10 years was excessive, having regard to the appellant’s mental
deficiencies, the absence of previous custodial sentences and his age (56). He had had a
heart attack in 2017 and suffered from high blood pressure. The judge could have imposed
an extended sentence with a shorter custodial term.
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[26] There was no basis for an extended sentence. For such a sentence to have been
imposed, the sentencing judge would have to have been satisfied that, upon his release, the
appellant would pose a risk of serious harm to the public (Criminal Procedure (Scotland)
Act 1995, s 210A). Given that the most recent of the offences occurred at least 13 years ago
and the appellant was now aged 56, it is difficult to say that, even were he to be released on
parole in 4 or 5 years time, the appellant would pose such a risk; although that is what the
Criminal Justice Social Work Report concluded.
[27] Were it not for the significantly low level of the appellant’s intelligence, the period of
custody selected by the trial judge could not be regarded as other than appropriate. Once
the appellant’s level of intellectual functioning is taken into account, the court is satisfied
that the sentence is excessive. It will quash that of 10 years and substitute one of 8 years
imprisonment.