Double rapist who claimed ‘mutual corroboration’ could not apply loses appeal against conviction

The High Court of Justiciary Appeal Court ruled that jury were entitled to infer that the two incidents were part of a “court of criminal conduct persistently pursued” by the appellant.

‘Did as he pleased’

The Lord Justice General, Lord Carloway, sitting with Lord Menzies and Lord Turnbull, heard that that appellant James McMeekin, 54, was convicted of two charges following a trial at the High Court in Glasgow in 2018.

The trial judge described the appellant’s conduct as follows: “He did as he pleased, when he pleased and ignored their protests that they were not consenting”.

The first offence occurred in 2009 at his flat in Rutherglen, where he raped the complainer “SK” while she was “asleep and incapable of giving or withholding consent”, and continued the assault after she awoke despite the complainer’s attempts to push him away.

He eventually rolled off, said that he was “sorry” and fell asleep, following which the complainer went home and the relationship ended.

The complainer did not make any formal complaint until 2016, when approached by the police who were investigating other matters.

The court was told that the second incident occurred six years later, in 2015, when the complainer “CB” stayed over at his home in Girvan.

The complainer had asked him to stop but he continued the assault, after which thanked her and went to sleep.

At trial, the appellant testified, during which he professed “shock” at the allegations and insisted that any sexual contact was with the complainers’ “consent”.

However, there was no submission to the trial judge that the evidence was insufficient.

‘Mutual corroboration’

The trial judge considered that the principle of “mutual corroboration”, as set out in the case of Moorov v HM Advocate 1930 JC 68 at 73, applied. 

The main similarity was that each crime was an incident of domestic sexual abuse.

Each involved the appellant in an existing relationship with the complainer, both of whom were younger than he was.

They were not cohabiting, but each offence occurred in the house occupied by the appellant, who abused the trust of each complainer by having penetrative intercourse without consent.

Immediately after each incident, the appellant’s attitude to each complainer was similar – acting as if nothing untoward or wrong had happened.

Although the crimes were separated by some six years, the judge considered that the whole circumstances revealed an “underlying course of conduct”.

But McMeekin appealed against his conviction, arguing that that the two charges were not capable of being understood as part of a course of criminal conduct systematically pursued by the appellant, and therefore the doctrine of mutual corroboration could not apply.

It was submitted that the Crown required to demonstrate that each incident was a component part in a “course of criminal conduct systematically pursued”.

It was not enough to identify certain similarities – here the differences between the two charges were “stark” and the similarities were “superficial” – and it was not enough to show that the accused had a “general disposition” to commit offences of this nature.

The first offence was one of vaginal rape while the complainer was sleeping and continuing after she had woken and protested, which ended in an apology, while the second offence, which occurred six years later, was one of anal rape occurring in the middle of consensual sex, following which he said “thanks”.

There was thus “no evidence” of an underlying unity whereby the offences could be regarded as subordinate parts in an overarching course of criminal conduct systematically pursued.

‘Course of criminal conduct’

However, the judges refused the appeal.

Delivering the opinion of the court, the Lord Justice General said: “In any case in which mutual corroboration is founded upon, it will often be possible to discern both similarities and differences in the conduct complained of.

“If the features of time, place and circumstances would entitle the jury to conclude that each incident was part of a course of criminal conduct persistently pursued by the accused, the matter should be remitted to them for assessment.

“In this case, the character of the offence is the same. Both are offences of rape.

“There is a coincidence of place; each occurring in the appellant’s bed in his house. Both involved the complainer in an existing relationship with the appellant. Both involved force in response to protest.

“Looking at the conduct as a whole, the jury were entitled to draw the inference that the incident was part of the course of conduct described.”