Man convicted of two indecent conduct offences against boys 17 years apart loses appeal against conviction

About this case:

• Citation:
  [2023] HCJAC 28
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Matthews

Appellant DW was convicted of two counts of lewd, indecent and libidinous practices, one at common law and another under the Sexual Offences (Scotland) Act 2009, and sentenced to 18 months’ imprisonment. It was argued that the gap in time between the two charges was too great to allow for mutual corroboration, and the trial judge was wrong to repel a no case to answer submission in respect of charge 2.

The appeal was heard by Lord Matthews, Lord Boyd of Duncansby, and Lady Wise. Paterson, solicitor advocate, appeared for the appellant and Ewing, solicitor advocate, for the Crown.

Compelling similarities

Of the charges, charge 1 libelled conduct on various occasions between 1991 and 1993 at various locations in Hawick. The complainer, A, spoke of one occasion where the appellant took him and some of his friends out in a car and masturbated and ejaculated into a condom in front of the group “to show them what grown men did”, before giving them flavoured condoms to take home with them.

Charge 2 libelled conduct between June 2010 and April 2011 in which the appellant grabbed and squeezed the naked penis of complainer B under his clothes. There was also a docket which alleged lewd practices between January and December 1993 against a third boy, C, who said that the appellant used to give him flavoured condoms and encourage him to masturbate with him. The appellant also invited both B and C to sit on his lap and “drive” his car, allowing him access to their genitals.

It was submitted for the appellant that it could not be said that the individual instances in charges 1 and 2, which took place 17 years apart, could be said to be component parts of one course of conduct despite the similarities. The case of Duthie v HM Advocate (2021), which was cited in repelling the no case to answer submission, did not say that time was no longer a part of the equation in determining whether individual incidents could form part of a course of conduct.

For the Crown it was submitted that the significance of a long period would depend on the circumstances of the case. There were striking similarities in the conduct alleged in this case, and it was clear that the more compelling any similarities were, the less significant would be a substantial interval of time.

Correct to repel

Lord Matthews, delivering the opinion of the court, began: “There is no dispute as to the relevant law and the test which falls to be applied in cases of this nature. It has been well ventilated and we see no need to repeat it. What the court is looking for are the conventional similarities of time, character and circumstances in order to demonstrate that the individual instances are part of a course of criminal conduct systematically pursued. Only if on no possible view of the evidence could a jury come to that view a submission of no case to answer will be upheld.”

Addressing the facts of the case, he said: “There were strong similarities in the evidence of the three complainers. They were all boys of a similar age, all from the town of Hawick. They were known to the appellant in some way before the abuse commenced and the conduct all took place in or around Hawick. The appellant was the rugby coach of C and knew B’s mother. This permitted access to the child which he exploited so that he had an opportunity to be alone with child when the child was undressed as at the public baths or at bath time.”

He continued: “Perhaps the most compelling piece of evidence was that the abuse, or a component of it, involved inviting the boys to ‘drive’ the appellant’s car and have them sit on his knee and thereafter engage in abusive conduct. Further elements of the abuse involved the appellant either touching the child’s penis or attempting to induce the child to expose his penis in his presence and the making of sexual remarks referencing masturbation or erections.”

Lord Matthews concluded: “While there was no additional evidence which might explain the time gap, that was not necessary, albeit in appropriate cases the Crown may seek to lead evidence of that type. The sheriff was correct to repel the submission of no case to answer. The appeal against conviction is refused. Since the sentence appeal depended upon the success of the conviction appeal, it follows that it too must be refused.”