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JH AGAINST HMA [2022] ScotHC HCJAC_39 (26 October 2022)
URL: http://www.bailii.org/scot/cases/ScotHC/2022/2022_HCJAC_39.html
Cite as:
[2022] HCJAC 39,
2023 SCCR 26,
[2022] ScotHC HCJAC_39,
2022 GWD 35-514,
2022 SLT 1295
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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2022] HCJAC 39
HCA/22-122/XC
Lord Matthews
Lord Tyre
Lord Boyd
STATEMENT OF REASONS
delivered by LORD MATTHEWS
in
APPEAL AGAINST CONVICTION
by
JH
Appellant
against
HER MAJESTY'S ADVOCATE
Respondent
Appellant: Gravelle (Sol Adv); Beltrami & Co Ltd
Respondent: Goddard KC AD; Crown Agent
26
October 2022
Introduction
[1]
We refused this appeal on 26 October 2022 and indicated that we would give our
reasons in writing. This we now do. On 24 February 2022 the appellant was convicted of
three charges before a jury in the Sheriff Court. These were as follows:
"Charge 4 - lewd, indecent and libidinous practices and behaviour towards SD on an
occasion between 1 January 1972 and 5 April 1980;
2
Charge 5 lewd, indecent and libidinous practices and behaviour towards GD on
two occasions between 1 January 1972 and 11 July 1981 and;
Charge 6 lewd, indecent and libidinous practices and behaviour towards SH on
various occasions between 1 January 2000 and 9 March 2003."
[2]
In due course the sheriff sentenced the appellant to 12 months' imprisonment in
cumulo in respect of charges 4 and 5 and to 18 months' imprisonment consecutively in
respect of charge 6.
[3]
The complainers in charges 4 and 5 were sisters aged, respectively, 7 and between 8
and 12 when the offences took place. The complainer in charge 6 was 5 or 6 years old when
the offence occurred.
[4]
All three complainers described the appellant lying on top of them, pressing his
private parts against theirs and moving up and down. All parties were clothed during the
commission of the offences. It is not necessary to go into the full details since it is accepted
that there was sufficient evidence to allow the jury to convict of all three charges on the basis
of mutual corroboration.
[5]
It is contended, however, that, given the time gap (approximately 19 years) between
the events of charges 4 and 5 and those of charge 6,, the sheriff ought to have directed the
jury that there required to be special, compelling or extraordinary features present before
they could convict of charge 6. It is accepted that the sheriff gave appropriate standard
directions on mutual corroboration but the lack of a direction on special features was a
material misdirection by omission.
Submissions for the appellant
[6]
A number of authorities had observed that a special feature ought to be identified in
cases involving a significant gap in time. Duthie v HM Advocate 2021 JC 207, while
3
over-ruling these cases, left open the possibility that a direction about special features might
be required in particular cases.
[7]
At paragraph [28] in Duthie the court said the following:
"It is important that what began as a cautious remark by a trial judge, which was
intended to assist the jury in their assessment of the mutual corroboration issue (in
K at [7]), is not elevated into a principle of the law of evidence which is applicable in
all cases in which there is a lengthy interval between the relevant incidents. It is not
the case that, as a matter of law, in a lengthy time gap case, there require to be
special, compelling or extraordinary circumstances before the appropriate inference
can be drawn. What is essential, in terms of the settled law, which was described in
Adam v HM Advocate (at [28]), are similarities in time, character and circumstances
such as to demonstrate that the individual incidents are component parts of one
course of conduct persistently pursued by the accused. The jury will have to be
directed to that effect but, normally, that is all that is required. The judge or sheriff
may elect to explain to the jury in a particular case that there is a long time gap and
that, because of that factor, the similarities would require to be strong ones when
compared to those needed where the incidents are closely linked in time. The giving
of such a direction is not essential and in some cases it may be undesirable. In so far
as S v HM Advocate is seen as being to the contrary effect, it is over-ruled."
[8]
The use of the word "normally" showed that the appeal court had in contemplation
that there might well be cases where such a direction was required. This was such a case.
Submissions for the Crown
[9]
Duthie made it perfectly plain that no such direction was required. In this case the
conduct had been particularly idiosyncratic, and there had been evidence of a lack of
opportunity. The issue of the gap in time was explored in the speeches and there was no
miscarriage of justice.
Analysis and decision
[10]
The appeal raises a short point. It is not a good one. The comments of the court in
paragraph 28 of Duthie have to be read in the context of paragraph 27 which runs as follows:
4
"[27] The court in Adam v HM Advocate (at [31] and [32]) examined the various dicta
in which there had been reference to the necessity, in lengthy time gap-cases, of
having special, compelling or extraordinary circumstances before a course of conduct
persistently pursued could be inferred. The source of these references is the opinion
of the Lord Justice Clerk (Gill) in K v HM Advocate, 2012 JC 74 (at [14] ) which
There have been subsequent cases which have adopted similar language (eg. S v HM
H at [28]-[29]).
[11]
The use of the word, "normally" in para [28] must be seen in its context. All that is
being said is that the conventional directions are usually all that is needed. It recognises that
there may be occasions where something more might appropriately be said, for example
where there are a large number of charges with different categories of offences or the
evidence is complex, although whether to go further than the standard directions in any case
will be a matter for the discretion of the presiding judge. It does not mean, and was not
intended to mean, that there will still be some cases with a lengthy time gap where a
direction on special features has to be given on account of that factor. It is made explicit in
Duthie that judges or sheriffs may elect to give such a direction but the words "it is not
essential" could not themselves be clearer.
[12]
The appellant's submissions rely on a proposition of law which is the polar opposite
to that which was decided in Duthie, where the intention was to put to bed once and for all
the suggestion that a direction on special features had to be given.
[13]
The appeal is without substance and is refused.
