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Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> APPEAL AGAINST CONVICTION BY MICHAEL FINLAY AGAINST HER MAJESTY'S ADVOCATE [2020] ScotHC HCJAC_29 (25 June 2020)
URL: http://www.bailii.org/scot/cases/ScotHC/2020/2020_HCJAC_29.html
Cite as: [2020] ScotHC HCJAC_29, 2020 SCCR 317, 2020 GWD 24-320, [2020] HCJAC 29, 2020 SLT 1309
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Lord Glennie
Lord Turnbull
Lord Pentland
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2020] HCJAC 29
HCA/2019/000379/XC
OPINION OF THE COURT
delivered by LORD GLENNIE
in
APPEAL AGAINST CONVICTION
by
MICHAEL FINLAY
against
HER MAJESTY’S ADVOCATE
Appellant
Respondent
Appellant: Ogg (sol adv); McCusker, McElroy & Gallagher, Solicitors
Respondent: Prentice QC, (sol adv) AD; Crown Agent
25 June 2020
Introduction
[1] On 18 June 2019 at Glasgow Sheriff Court the appellant was convicted by a jury on
two charges, the first (charge 1) being a charge of threatening or abusive behaviour directed
towards his wife contrary to section 38(1) of the Criminal Justice and Licensing (Scotland)
Act 2010 (“the 2010 Act”), and the second (charge 3) being a charge of repeatedly assaulting
his baby daughter over a period of some three months. The remaining charges against the
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2
appellant, charges 2 and 4, were withdrawn at the conclusion of the Crown’s case. After
deferral for reports, the sheriff pronounced a cumulo sentence in respect of charges 1 and 3 of
five years imprisonment. This appeal against conviction relates only to charge 1, other
grounds of appeal against conviction and sentence not having passed the sift.
[2] Charge 1 provides as follows (omitting parts which were deleted at trial):
“(1) on various occasions between 01 February 2014 and 28 December 2017, both
dates inclusive at [various addresses] you MICHAEL FINLAY did behave in a
threatening or abusive manner which was likely to cause a reasonable person to
suffer fear or alarm in that you did conduct yourself in a disorderly manner, shout,
swear, issue threats towards your wife … c/o Police Service of Scotland, behave in a
controlling and coercive manner towards her, monitor her use of social media, access
her social media accounts and personal mobile, discourage her interaction with
friends and family and isolate her and place her in a state fear and alarm for her
safety;
CONTRARY to Section 38(1) of the Criminal Justice and Licensing (Scotland) Act
2010;”
[3] To give some context to the events libelled in charge 1, it should be noted that the
complainer and the appellant first met in February 2014. They moved in together in June of
that year and were engaged in August. They married in November 2016, over two years
later. Their daughter was born in October 2017 and the allegations concerning her, which
were the subject of charge 3, focused on the period between her birth and 28 December 2017.
[4] The evidence in support of charge 1 came principally from the complainer. She
spoke to the various incidents. Her evidence was supported, so far as concerns the majority
of the incidents spoken to by her (though not all of them), by her sister, who spoke to the
appellant’s abusive and controlling behaviour towards the complainer. Further
corroboration came from messages exchanged between the appellant and the complainer on
social media, the recurring theme of which was of the appellant apologising for his
behaviour and promising that it would not continue. In addition there was evidence from a
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friend of the complainer, who provided some corroboration of the complainer’s account of
events towards the end of December 2017.
The no case to answer submission
[5] At the conclusion of the Crown’s case, a submission of no case to answer was made
in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 on the grounds that
there was insufficient evidence to allow charges 1 and 3 to proceed to the jury for their
consideration. It was argued inter alia that there required to be corroboration of each
individual incident in the charge before the jury could convict. The sheriff determined that
there was sufficient evidence on each of those charges and repelled the submission. His
reasoning, in short, was that the jury was entitled, on the evidence, to find that charge 1
libelled “a single episode of multiple instances of abusive and threatening behaviour”, while
charge 3 libelled “a single episode of multiple assaults” (see the sheriff’s report at para [73]).
In those circumstances it was open to the jury, if they did so find, to go on to find that
corroboration of some of the individual incidents libelled in the charge was sufficient to
amount to corroboration of the whole charge.
The sheriff’s charge to the jury
[6] The sheriff adopted the same approach in his charge to the jury. Unsurprisingly, in
view of the relative seriousness of the two charges, he first focused his attention on the
evidential requirements in relation to charge 3, but he then explained to the jury that a
similar approach had to be taken in respect of charge 1. He commented that because these
incidents were alleged to have taken place within the home, there was inevitably a lack of
corroboration of some of the individual incidents, and that this had shaped the Crown’s
approach. The approach taken by the Crown could be summarised in this way:
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“Now, the Crown says that each charge describes a single episode of multiple
criminal actions in which [the complainer] was the victim in charge 1 and [the baby
daughter] was the victim in charge 3, and the Crown says they were each subjected
to continuous criminal activity. Now each of these charges stands apart from the
other. In charge 3, the Crown says that describes a single episode of multiple
criminal assaults on [the baby daughter] in which she was subjected to continuous
criminal activity. … And the Crown says that, looking at all the circumstances,
taking all the circumstances into account, looking at it in the round, what happened
to [the baby daughter] amounted to a single episode. Now, episode here means a
group of events as part of a sequence. It means a set of incidents which are
connected. It’s a course of conduct, where the individual incidents are connected
and the idea is that the behaviour was persisted in and had some continuing and
some underlying unity.”
The sheriff directed the jury that it was not enough for the Crown to describe the events in
this way; they, the jury, would have to be satisfied about that on the evidence. Turning his
attention to charge 1, he told the jury that in relation to that charge:
“… your approach would have to be similar. Again, you would have to accept the
testimony of [the complainer] and you would have to find evidence independent of
her account which was capable of supporting or confirming her account of a single
episode of continuing threatening or abusive conduct, which makes the test in terms
of section 38 as I’ve described it to you.
So you would have to find that [the complainer] was subjected to continuous
criminal activity by being repeatedly abused and that [there is] independent
corroboration of that to allow you to hold that what happened amounted to a single
episode of multiple abuse or threatening behaviour.”
The appeal
[7] The appellant applied for leave to appeal against conviction on both charges and
against sentence, but leave to appeal was granted at second sift only on ground (iii) and only
so far as that ground related to charge 1. That ground of appeal, as so restricted, reads as
follows:
(iii) That the learned sheriff erred in directing the jury that if it found in … Charge
1 … that there was a single episode of multiple criminal acts then it could find
corroboration of the entire charge if it found there to be corroboration aliunde of the
evidence of [the complainer] in relation to a single element of [the] charge …”
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Having read carefully the transcript of the sheriff’s charge to the jury, we are not persuaded
that the sheriff did in fact direct the jury that sufficient corroboration could be found by
evidence in relation to a single element of the charge. That would be sufficient to dispose of
this appeal, but we do not think it appropriate to deal with the matter in such a peremptory
way. We return to this point later.
Submissions
[8] For the appellant, it was submitted that the incidents narrated in charge 1 were
separate and distinct criminal acts, each of which required to be corroborated either directly
or by application of the principle of mutual corroboration. Reference was made to Spinks v
incidents amounted to a single episode or course of conduct was a matter of fact and degree.
But it was submitted that in the present case the conduct libelled in charge 1 could not
amount to a single episode of threatening or abusive behaviour; the narrative in the libel
was that the threatening or abusive behaviour occurred on various occasions between the
two dates, spanning a period of nearly 4 years, and there was no suggestion, unlike in the
case of Wilson, that the complainer had been held captive or was for some other reason
unable to leave during this period. The incidents libelled in the charge were in fact separate
incidents, separate criminal acts, each of which required corroboration. It was not arguable
that they constituted one single episode of criminal behaviour, and the sheriff ought not to
have left that question to the jury. The appeal should be allowed and the conviction on
charge 1 quashed. The jury was not directed on the basis that they should look for
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corroboration of the individual incidents or as to the principle of mutual corroboration, and
the court should not seek to uphold the conviction by either of those routes.
[9] For the respondent, the Advocate Depute drew the court’s attention to the terms of
section 38 of the 2010 Act and emphasised that, in terms of subsection (3)(1)(b)(ii) thereof,
the behaviour constituting an offence under that section could consist of a single act or “a
course of conduct”. What was libelled in charge 1 was a course of conduct, a pattern of
abusive behaviour by the appellant spanning the period of the libel, causing her fear and
alarm. Many of the incidents narrated in the charge were individually corroborated. There
was sufficient corroboration of individual incidents to provide a sufficiency and to justify
the verdict even if the charge was regarded as comprising a number of single events each of
which required corroboration. The Crown’s primary case, however, was that the individual
incidents were all part of a single episode capable of being corroborated as a whole by the
evidence of the complainer’s sister and the messages on social media even if that evidence
and those messages did not corroborate each individual event. What amounts to a single
episode or separate episodes of criminal acts is a question of fact and degree: Wilson at
para [37]. That was a matter for the jury to determine and the sheriff was right to leave it to
the jury. The sheriff did not err in directing the jury that if they found in charge 1 that there
was a single episode consisting of multiple criminal acts, they could find corroboration of
the entire charge if there was corroboration aliunde of the evidence of the complainer in
respect some but not all of the incidents libelled in the charge.
[10] The sheriff had directed the jury that if they were not satisfied that the conduct
libelled in the charge constituted a single episode of multiple criminal acts, then they must
acquit the appellant of the entirety of the libel. That was a misdirection, albeit one in favour
of the appellant. There was sufficient corroboration of individual incidents to allow the jury
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to convict of that charge either in whole or in part. Nor were the jury directed, as they
should have been, that the doctrine of mutual corroboration could apply in this case.
[11] The Advocate Depute drew our attention to the fact that there had been no evidence
before the jury of any incident at the Gleddoch House Hotel, Renfrewshire. That locus
should therefore be deleted from the libel. Quoad ultra the appeal should be refused.
Decision
[12] It is not in dispute that where a charge libels a number of separate criminal acts, each
2020 JC 84. Nothing in what we say in this case in any way detracts from that. However in
some cases there may be room for uncertainty as to whether the events set out in the libel
constitute, on the one hand, a single criminal act or, on the other hand, a succession of
separate criminal acts. It is in every case a matter of fact and degree: Wilson v HM Advocate
2019 SCCR 273 at para [37].
[13] In Rysmanowski the Lord Justice General, delivering the Opinion of the court, in the
context of discussing the need to corroborate each separate criminal act, emphasised that,
except in the context of mutual corroboration, the phrase “course of conduct” has no
significance in relation to sufficiency of evidence: see para [17]. In other words, where a
number of separate criminal acts are libelled within the same charge, each will require to be
corroborated in the normal way; and, except where the doctrine of mutual corroboration is
available, one cannot avoid the need for each such act to be individually corroborated
simply by asserting that they were all part of a single course of conduct. We endorse that
view.
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[14] But that is not this case. We are here dealing with a particular statutory offence. In
the present case the charge was a charge under section 38(1) of the 2010 Act, and the
allegation was that the appellant had behaved in a threatening or abusive manner over a
substantial period, his behaviour over that period consisting of “a course of conduct”. The
expression “course of conduct” is not used in the charge as libelled, but is clearly implicit in
how the libel is framed. It is part of the statutory definition of one manner of committing the
crime: see section 38(3)(b)(ii). As the sheriff pointed out in his charge, many, perhaps most,
of the incidents narrated in the libel would not of themselves necessarily amount to a
criminal act. They take on their characteristic of being threatening and abusive because they
are all part of a course of conduct which, taken together, go to demonstrate a pattern of
controlling and coercive behaviour. In his decision on the no case to answer submission and
in his charge to the jury, the sheriff identified the question as being whether the appellant’s
behaviour in relation to the events libelled in charge 1 amounted to “a single episode” of
multiple abuse, threatening behaviour, criminal acts, etc., and this terminology was adopted
by the Advocate Depute in his submissions before this court. The sheriff used that
expression interchangeably with “course of conduct”; and the jury could have been in no
doubt that he was talking about a “course of conduct”. We would deprecate the use of the
phrase “single episode” in this context as apt to cause confusion. The expression “course of
conduct” used in this context better conveys the idea of there being a single crime in
accordance with the wording in the 2010 Act, that single crime being committed over a
period by a course of conduct, and being capable of corroboration by independent evidence
of two or more of the incidents narrated in the libel. In such circumstances, where the
alleged commission of the crime is by a course of conduct, there would require to be
corroborating evidence of that course of conduct, i.e. evidence relating to two or more of the
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incidents referred to in the libel from which the jury could conclude that these were not
isolated acts but truly part of a course of conduct. Corroboration of one incident alone
might be sufficient for corroboration of the crime restricted to that one incident, or single act,
(see s.38(3)(b)(i)), but not for a course of conduct.
[15] On a proper reading of charge 1 on the indictment, it is impossible to say that the
conduct there narrated could not amount to a single course of conduct capable of being
corroborated by the evidence from the complainer’s sister and the messages on social media.
The matter being one of fact and degree, it was for the jury to decide on the evidence
whether the charge libelled a single course of conduct and, if so, whether it was
corroborated by that evidence – and the sheriff was right to leave that matter to the jury.
There is no merit in the challenge to his direction on this matter.
[16] In those circumstances there is no need for us to consider the question raised by the
Advocate Depute of whether there was in any event sufficient corroboration of the
individual incidents narrated in the libel to justify the conviction on this charge or whether
the matter might have been resolved against the appellant in any event by reference to the
principle of mutual corroboration. We simply note that the jury was not directed on either
of these points.
[17] We shall give effect to the concession by the Advocate Depute that no evidence was
given about anything having occurred at the Gleddoch House Hotel, Renfrewshire, by
deleting that locus from the libel in charge 1. Save for this one change, the appeal is refused.