Sheriff rejects no case to answer submission from man charged with statutory partner abuse offence

The accused, JH, was charged with striking and threatening his partner between October 2020 and January 2021. A no case to answer submission was made on his behalf on the ground that the evidence led by the Crown was insufficient to corroborate the three incidents detailed in the charge that the complainer spoke to in evidence.

The case was heard by Sheriff Douglas Kinloch. The Procurator Fiscal (Livingston) was represented by Mr Marshall, Procurator Fiscal Depute, and the accused by Ms Simpson, solicitor.

Threatened to kick the door in 

The charge against the accused was that, between 1 October 2020 and 13 January 2021, he had repeatedly struck his partner on the body and head, persistently demanded sexual intercourse while refusing to use contraception, demanding that she cease contact with male acquaintances and accusing her of infidelity, and threatening her with violence when she refused to meet him.

In evidence, the Crown led evidence from the complainer and from one of her friends who had told the couple to get advice about contraception. It was also agreed that the accused had said in a police interview that he had slapped the complainer hard enough to leave a handprint “as a joke” and that he had sent her text messages on 12 January threatening to kick in her door and take her away in his car.

It was the position of counsel for the accused that the behaviour detailed in the charge that the complainer had spoken to comprised three separate incidents that each required to be corroborated and did not comprise a “course of behaviour” as maintained by the Crown.

In respect of the police interview, it was submitted it could not be used as corroboration as, read properly, it was a denial that any assault had taken place. Further, although he had admitted to sending the text messages in January 2021, this was not really to be seen as an admission of abusive behaviour, with the accused having said that at the time he was “raging” and it was “a moment of madness”.

It was submitted for the Crown that Section 1 of the 2018 Act provided for a single crime consisting of a course of abusive behaviour. The acts of the accused were connected and were not separate incidents, thus they did not require to be corroborated separately.

A single crime

In his decision, Sheriff Kinloch noted other cases in which a course of conduct was taken to be a single crime, explaining: “In the case of Stephen v HMA (2006) it was held that it is competent to libel as a single crime repeated acts of lewd and libidinous practices, and where such conduct is libelled as a single crime, corroboration may be found in evidence of particular instances of it. So, a number of separate incidents can be seen to be a single crime, the crime in the Stephen case the crime taking the form of a course of indecent conduct.”

Giving a more recent example, Finlay v HMA (2020), he continued: “Where a charge libels a number of separate criminal acts, each such act requires to be corroborated, but that in some cases there might be room for uncertainty as to whether the events set out in the libel constituted a single criminal act or a succession of separate criminal acts, and in every case that is a matter of fact and degree. It was also said in the Finlay case, it is not possible to ‘avoid the need for each such act to be individually corroborated simply by asserting that they were all part of a single course of conduct’.”

Analysing the provisions of the 2018 Act, Sheriff Kinloch said: “Although a charge under Section 1 will always include an allegation that a number of incidents took place, a charge under Section 1 really has to be seen as a charge that the accused committed a single crime, namely the crime of engaging in a course of abusive behaviour. Without a course of behaviour there is no crime.”

Applying this to the facts of the case, he continued: “The Crown accepted that the complainer’s evidence was limited to allegations of the accused striking her, persistently demanding sexual intercourse, and demanding that she meet with him and issuing threats as to what he would do if she did not. Each of these three acts, in my view, falls within the definition of abusive behaviour as given in the 2018 Act.”

Sheriff Kinloch concluded: “It seems to me that the evidence in the present case can therefore be seen as evidence which in law is sufficient to show that the accused committed the single crime of engaging in a course of abusive behaviour. On this reasoning, it follows that corroboration of each separate incident is not required. What is required is corroboration of two or more instances of behaviour, whether or not the behaviour looked at in isolation would amount to a crime.”

For these reasons, the sheriff held that the no case to answer submission failed. As a postscript, he added: “Even if my analysis is wrong (and the matter is perhaps not without difficulty) Section 8 of the Act specifically provides that an accused may be convicted of the alternative offence of a contravention of s38 of the Criminal Justice and Licensing (Scotland) Act 2010 (threatening or abusive behaviour), or an offence under s39 of the 2010 Act 10 (stalking). No doubt it would also be possible to convict of an alternative offence of assault.”