High Court overturns trial judge’s acceptance of no case to answer submission in sexual abuse case

Lord Carloway

It had been argued by the accused and respondent, BL, that the evidence led in respect of two charges of lewd, indecent and libidinous practices was not mutually corroborative. The trial judge accepted the submission and held the case fell into the rare category in which it was his responsibility to uphold the submission.

The appeal was heard by the Lord Justice General, Lord Carloway, sitting with Lord Woolman and Lord Pentland. Prentice QC appeared for the Crown and F Connor, advocate, for the respondent.

Significant dissimilarities

The complainers in the two charges were a brother and sister who had been neighbours of the respondent between 1979 and 1981. At the time, the respondent had been around 18, the brother had been between 6 and 7 and the sister between 7 and 9. The first charge related to an incident in which the respondent was said to have made a sexualised comment towards the sister and touched her vagina over clothing, while the second involved various occasions on which the respondent touched the brother’s penis and encouraged him to masturbate him.

Both complainers gave evidence at trial. In her testimony, the sister stated that, while she could not remember any actual contact, she had a “pretty strong belief” that it had happened and that she had blanked it out. In accepting the no case to answer submission, the trial judge had expressed concern about this and considered that there were significant dissimilarities between the two charges as to prevent them from being used to mutually corroborate one another.

The trial judge agreed with the reasoning in HM Advocate v P (2015) that conduct at the top end of the spectrum offending could not be corroborated by conduct at the lower end, nor did he accept that the matter was better left to the jury in cases of sexual abuse of children by adults. He regarded the evidence of the loci as having limited similarities and the two incidents as being markedly different in their character and circumstances.

It was submitted that the trial judge had erred in accepting the no case to answer submission in this case, having regard to the similarities present between the charges. The complainers were related, had both been young children at the time, had been neighbours of the respondent, and both incidents had taken place in the vicinity of their home.

Province of the jury

Delivering the opinion of the court, Lord Carloway observed: “In a case where there are similarities as well as dissimilarities, a no case to answer submission should only be sustained where ‘on no possible view could it be said that there was any connection between the two offences’. That was a shorthand expression which meant simply that such a submission should only be sustained where, on no possible view of the similarities and dissimilarities in time, place and circumstances, could it be said that the individual incidents were component parts of one course of conduct persistently pursued by the accused.”

Noting the similarities present in this case, he said: “It is no doubt correct, as the judge observed, that there were dissimilarities in the accounts of the abuse spoken to by the two complainers. The scale of the abuse of the second complainer was far greater than that said to have been perpetrated against the first complainer. Whether that is significant will be for the jury to gauge. It is not for the judge to conduct an intensive analysis of the respective accounts at the stage of a submission of no case to answer.”

He went on to say: “The type of evaluative exercise which was carried out by the judge, involving questions of fact and degree, nuance and impression, falls quintessentially within the province of the jury. The jury’s role in that regard must be respected.”

Lord Carloway concluded: “The judge has to ask himself simply whether on no possible view of the evidence could it be said that the respective accounts of abuse constituted component parts of a single course of criminal conduct systematically pursued. This is a very high test. It is one that in modern practice will rarely be capable of being passed in cases of child sexual abuse.”

The appeal was therefore allowed, and the case remitted to the judge for further procedure.