High Court rules disclosure of indecent assault nine years after offending conduct could not be used in corroboration

About this case:

• Citation:
  [2025] HCJAC 13
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Beckett

Peter McGuiness was found guilty of indecent assault in Glasgow Sheriff Court on 1 May 2024 and sentenced to three years’ imprisonment. He contended that the complainer’s disclosure of the offending several years later was not a de recenti statement and was thus inadmissible hearsay. The appellant was also admonished for an additional, non-sexual, charge of breach of the peace, which was not appealed.

The appeal was heard by Lord Matthews, Lord Armstrong and Lord Beckett. Loosemore, advocate, appeared for the appellant and Harvey AD for the Crown.

Natural outpourings of feelings

Charge 2 against the appellant libelled that, on various occasions between July 1992 and July 1995, he indecently assaulted a male complainer, who was aged 45 when he gave evidence at trial. The complainer’s evidence was that he met the appellant when he was aged 10 and took part in sporting and leisure activities he organised. He began to have individual contact with the appellant, including staying at his house overnight, ostensibly to prevent his parents finding out that the appellant had given him alcohol.

Over time, the appellant started to touch the complainer, including trying to touch his genitals while pretending to be asleep and trying to masturbate him. The appellant began to isolate him from his other friends and family, resulting in depression and suicidal feelings. The complainer later entered a relationship with a woman, DN, and at some time between 2004 and 2008 he disclosed to her the abuse he suffered at the hands of the appellant. This disclosure occurred after the couple had returned from a holiday in Gran Canaria in 2004, during which they were involved in a bus crash.

In advance of the prosecutor eliciting evidence from DN about the complainer’s distress, the appellant’s solicitor objected on the basis that the disclosure was not de recenti. The sheriff repelled the objection, considering it a matter for the jury. He reasoned it would be inconsistent with the decision in Lord Advocate’s Reference No 1 of 2023 if the jury were to hear evidence of the complainer’s distress but not what had caused it. The sheriff later repelled a no case to answer submission, reasoning that whether the complainer’s distress was attributable to the abuse was a matter for the jury.

For the appellant it was submitted that the approach of the sheriff was illogical. The temporal latitude afforded to de recenti statements could not be extended to distress or statements made many years after the offence, because it did not represent the natural outpourings of feelings from a recent injury. No case had indicated that distress exhibited more than a matter of days after the offence was corroborative.

Not shortly afterwards

Lord Beckett, delivering the opinion of the court, said of the relevant case law: “In Lord Advocate’s Reference No 1 of 2023, in delivering the opinion of a bench of 7 judges the Lord Justice General (Carloway) explained that distress observed by a third party, de recenti, can corroborate a complainer’s account that she was raped. In summarising how juries should be directed on distress as corroboration, he confirmed [this means] distress shown by a complainer to a third party shortly after an alleged incident.”

He continued: “Interesting and creative though the Advocate Depute’s argument was, it is not open to us, as a court of 3 judges, to overturn what was confirmed by a bench of 7 judges in 2023 and another of 9 in 2024 [in Lord Advocate’s References 2 and 3 of 2023]. In order to be corroborative of a complainer’s evidence that she was sexually assaulted, distress must be observed relatively shortly after the incident said to give rise to it.”

Taking these points into account, Lord Beckett said: “There is no hard and fast rule determining when observed distress ceases to be available as corroboration; everything will depend on the particular circumstances of the case. It will often be a question of fact for the jury. There are numerous examples in reported cases illustrating where this court did and did not consider evidence of distress to be available as corroboration.”

He concluded on this ground of appeal: “There will be cases where the interval between an incident and observation of distress will be such that, as a matter of law, it is not open to a jury to find corroboration from distress. This is such a case. An interval of 9 years cannot be viewed as shortly afterwards. Accordingly, it was not open to the jury to find corroboration in the evidence of the complainer’s condition as described by DN. The sheriff erred in repelling the submission of no case to answer.”

Lord Beckett added on the other grounds: “Having reached the conclusion we have on ground 2 it becomes unnecessary to determine grounds of appeal 1 and 3. The effect of our decision on ground 2 is that the jury should not have been considering charge 2 at all and we say no more about ground 3.”

Having confirmed that the Crown would not seek a re-trial, the court allowed the appeal and quashed the conviction.