Lady Dorrian

About this case:

• Citation:
  [2022] HCJAC 33
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lady Dorrian

CA was convicted of contraventions of section 1 of the Domestic Abuse (Scotland) Act 2018 and section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010. He challenged the first charge, for which he was sentenced to 3 years’ imprisonment, on the basis that the jury was misdirected on corroboration and the sentence imposed was excessive. The appellant was admonished in respect of the 2010 Act charge. 

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, sitting with Lord Pentland and Lady Wise. Paterson, solicitor advocate, appeared for the appellant and the Solicitor General, Charteris QC for the Crown. 

Separate allegations 

The charge under the 2018 Act narrated a series of different types of abusive behaviour which, taken together, were alleged to form a course of abusive behaviour under the Act. In his direction to the jury, the trial judge gave general directions on corroboration, which were supplemented by additional directions. In these directions, the judge told the jury that each incident of allegedly abusive behaviour within the overall course did not need to be proved by corroborative evidence. 

The trial judge went on to tell the jury that what was crucial was that the course of behaviour was corroborated by evidence coming from at least two independent sources, thus requiring corroboration of at least two incidents forming the alleged course of behaviour. Provided that was the case, then whether the jury could convict of other uncorroborated elements of the charge depended on whether it was satisfied that those uncorroborated events or elements were part of the same course of abusive behaviour. 

It was the appellant’s case that the subheadings of the charge each amounted to separate allegations of criminality which each required to be corroborated before a conviction could be recorded. The effect of the trial judge’s direction was that an individual could be convicted of uncorroborated acts of criminality so long as the libel asserted a course of conduct. Whilst it was recognised that the purpose of the Act was to allow prosecution of matters which might not be considered to be criminal at all, or at least might be difficult to prosecute, it was submitted that it could not have been the intention to abolish a need for corroboration for individual acts which were of a criminal nature. 

For the Crown it was submitted that the rationale of Finlay v HM Advocate (2020), which considered the course of conduct issue in respect of section 38 of the 2010 Act, could be equally applied to section 1 of the 2018 Act, and the trial judge had given his directions correctly. The appellant argued that the case could be distinguished from the present appeal. 

Core element of the offence 

Lady Dorrian, delivering the opinion of the court, began: “The cases relied upon by the appellant confirm that in general corroboration is required to prove what may properly be regarded as separate crimes, including different episodes of assault, even where these have been libelled as part of one composite charge. This does not apply where the components are correctly to be regarded as simply component parts of a single offence of assault, where they are ‘all of a piece’.” 

Addressing the 2018 Act, she said: “The Act specifically creates a new offence which, in the words of the Lord Justice General, constitutes ‘a separate crime known as a course of conduct’. It is the course of behaviour which is the core of the offence, and it is thus the course of behaviour – in other words proof of behaviour ‘on at least’ two occasions - which must be established by corroborated evidence.” 

She went on to say: “Once there is corroborative evidence of this kind it is open to the jury to determine that other incidents equally form part of the course of conduct, even though spoken to by only one witness. Where the commission of a course of conduct is the core element of an offence, it is the proof of a course of conduct which constitutes the relevant essential element of the offence.” 

Turning to the arguments on Finlay, Lady Dorrian said: “All this was correctly recognised in Finlay v HMA, a case which dealt with an offence of threatening and abusive behaviour under section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010, which provides (section 38(3)(b)(ii)) that the behaviour may be constituted by a course of conduct. [Its] reasoning applies with equal, in fact greater, force to an offence under section 1 of the 2018 Act.” 

She concluded: “As to the appeal against sentence, the grounds of appeal accept that a custodial sentence was merited but assert that a sentence of three years imprisonment was excessive, the appellant having no previous convictions. We disagree. The behaviour persisted over a period of six months, and included repeated and serious acts of violence, to injury, permanent disfigurement and the danger of life, all in the context of emotionally abusive and controlling behaviour. The sentence cannot be described as excessive.” 

The appeal against sentence was therefore refused.