Man accused of rape of sister and fiancée to face trial after Crown wins ‘mutual corroboration’ appeal

The trial judge acquitted the accused on the basis that the “mutual corroboration” rule could not apply between the sexual offences involving his sister and ex-partner, but the Appeal Court of the High Court of Justiciary ruled that the there were similarities in the alleged acts which were sufficient to be put to the jury.

‘Lewd, indecent and libidinous practices’

The Lord Justice General, Lord Carloway, sitting with Lord Menzies and Lord Drummond Young, heard that the respondent “MM” went to trial at the High Court of Justiciary in Glasgow on 18 charges. 

Charges 1 to 3 related to physical assaults on his sister “LM”, born in 1975, his mother “EM” and his brother “TM” over a period of 12 years from 1981 to 1993, while charges 9 to 11 were also physical assaults on his brother, his father, also “TM”, and on “EQ”.

The court was told that the respondent, who was born in 1969, had been adopted by LM’s and TM’s parents.

Charges 4 to 8 consisted of a variety of lewd, indecent and libidinous practices, indecent assaults and rapes on LM in the years over the same period, from when his sister was aged six in 1981 until she was 18 in 1993 - all of which of involved non-consensual sexual activity, including anal, oral and vaginal penetration, while charge 18 was one of a further indecent assault on LM, contrary to section 3 of the Sexual Offences (Scotland) Act 2009, in 2012.

AC, the complainer in charges 12 to 17 - which consisted of a number of assaults, indecent assaults on, and anal rape between 1996 and 2001 - first met the respondent in a nightclub when she was 22 years old in 1995, and they went on to have a consensual sexual relationship and were engaged to be married. 

‘No case to answer’

On 31 October 2019, the trial judge sustained a defence submission of no case to answer and acquitted the respondent on charges 4 to 8, 12, 14, 15 and 18, after ruling that mutual corroboration could operate between the sexual offences involving LM and those involving AC, and having observed that “caution” was required when there were only two complainers (Mackintosh v HM Advocate 1991 SCCR 776). 

The alleged offences against LM commenced when they were both children and occurred with great regularity over a prolonged period of time, initially taking place in a park and then in the family home, while in contrast the evidence from AC related to events occurring in the context of a consensual relationship between adults. 

The judge did not consider that charge 12, which involved anal rape in a hotel room during the course of a consensual sexual encounter, was similar in character to the events spoken to by LM. 

Charge 14, an alleged assault with intent to rape, occurred when the respondent and AC were living together, but the judge did not consider that what was libelled was comparable to the offences described by LM. 

Charge 15 involved a number of episodes of sexual touching while AC had been asleep and the events had occurred, again in the context of a consensual sexual relationship, and the judge considered that charge 18 related to matters far too removed in time to satisfy the mutual corroboration test.

The trial judge was therefore not satisfied that there were the conventional similarities in time, place and circumstances, which demonstrated that the individual offences were part of a “course of criminal conduct persistently pursued” by the respondent, and the disparities were such that he could not say that they were sufficient to allow these charges to go to the jury. 

‘Single course of conduct’ 

However, the Crown appealed against the decision, arguing that while there were differences between the circumstances of the offences relating to LM and those involving AC, the similarities which existed were “sufficient” to permit the matter to be remitted to the jury.

The advocate depute submitted that the test was, as the trial judge had set out, whether there were the “conventional similarities in time, place and circumstances” such as could demonstrate that the individual incidents were “component parts of one course of criminal conduct persistently pursued” by the respondent (MR v HM Advocate 2013 SCCR 190). 

This was “a question of fact and degree” for the jury to assess (HMCA v HM Advocate 2015 JC 27; McMahon v HM Advocate 1996 SLT 1139).

Caution was required when only two instances, not two complainers, were involved, and the “correct approach” was to look at the character and circumstances of the individual offences as a whole and not in a compartmentalised or individual manner. 

The question was whether the necessary “inference” could be drawn from the whole circumstances (Donegan v HM Advocate 2019 SCCR 106), and evaluation process that should be left to the jury unless on no possible view could the relevant inference be drawn (Reynolds v HM Advocate 1995 SCCR 504), it was submitted.

‘Mutual corroboration’

Allowing the appeal, the judges ruled that all the charges apart from charge 18 should be put to the jury.

Delivering the opinion of the court, the Lord Justice General said: “In this case, the first episodes of criminal conduct involving LM related to what was alleged to be non-consensual sexual activity between the respondent, who was a child at the time, with his younger sister, who was also a child. The second series of episodes involved alleged non-consensual sexual activity, but occurring between adults in the context of a consensual sexual relationship. 

“The trial judge was certainly correct therefore to identify significant differences in the conduct. However, before sustaining a no case to answer submission, he had to be satisfied that on no possible view could the two series of episodes be regarded as component parts of a single course of conduct persistently pursued by the respondent.

“The court does not consider that such a view can be taken on the evidence in this case. As the advocate depute pointed out, on the accounts given by them: both complainers were significantly younger than the respondent; the relationships both involved the use of violence towards persons with whom the respondent was in a position of some trust; the alleged offences generally occurred in a domestic context; and they involved similar sexual acts, including anal intercourse without consent. 

“On the complainers’ accounts, the respondent sought to gain sexual gratification irrespective of their views. It is therefore open to the jury to determine that mutual corroboration is applicable.”

Lord Carloway concluded: “The court will accordingly allow the appeal, repel the no case to answer submission, with the exception of that made in relation to charge 18, which is in a separate category in terms of time and place.”