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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2022] HCJAC 33
HCA/2022/000017/XC
Lord Justice Clerk
Lord Pentland
Lady Wise
OPINION OF THE COURT
delivered by LADY DORRIAN, the LORD JUSTICE CLERK
in
APPEAL AGAINST CONVICTION AND SENTENCE
by
CA
Appellant
against
HER MAJESTY'S ADVOCATE
Respondent
Appellant: Paterson, Sol Adv; Paterson Bell, Solicitors
Respondent: Solicitor General QC, AD; Crown Agent
23 August 2022
Introduction
[1]
The appellant was convicted of two charges. The first was a contravention of
section 1 of the Domestic Abuse (Scotland) Act 2018 and the second was a contravention of
section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010. He was sentenced to
imprisonment for 3 years on charge 1 and admonished on charge 2. The appeal relates to
2
charge 1, and alleges a misdirection by the sheriff in relation to the requirements for
corroboration where a contravention of section 1 of the 2018 Act is alleged. It is also
maintained that the sentence was excessive. The charge narrates a series of different types of
abusive behaviour, (i) to (xiii), which were alleged to constitute part of a course of abusive
behaviour under the Act. There was corroborative evidence for at least four types of
behaviour alleged.
The Legislation
[2]
Section 1 of the Domestic Abuse (Scotland) Act 2018 makes it an offence to engage in
a course of behaviour which is abusive of a partner or ex -partner, in circumstances wher e a
reasonable person would consider that course of behaviour to be likely to cause physical or
psychological harm, and where the offender either intended the behaviour to cause such
harm or was reckless as to whether it did so. References to psychological harm include fear ,
alarm and distress.
[3]
Guidance as to what constitutes abusive behaviour for the purpose of the Act is
given in section 2, which provides that abusive behaviour includes (in particular) behaviour
which is violent, threatening or intimidating; has as a purpose, or would be considered by a
reasonable person to be likely to have, certain effects on a complainer, namely: making them
dependent on, or subordinate to, the accused; isolating them from friends, relatives or other
sources of support; controlling, regulating or monitoring their day-to-day activities;
depriving them of, or restricting their, freedom of action; and frightening, humiliating,
degrading or punishing them. References to violent behaviour include sexual violence. The
instances of behaviour alleged in the charge were all capable of coming within the a mbit of
this guidance.
3
[4]
Section 10 provides that behaviour means "behaviour of any kind", and includes
doing, saying or otherwise communicating something as well as intentionally failin g t o do,
say or otherwise communicate something. It includes behaviour carried ou t dir ect ly, bu t
also through a third party or by conduct towards property. Section 10(4) provides: " A
course of behaviour involves behaviour on at least two occasions."
The directions
[5]
The sheriff gave directions as to the necessary ingredients of an offence under
section 1 and these are not challenged. These included directions that a course of behaviour
involved behaviour that the accused had engaged in on at least two occasions, followed by a
list of examples of the kind of behaviour which might constitute the offence, under reference
to the statutory definition. General directions on corroboration, given in the written
directions at the commencement of the case, were supplemented by the directions which are
the subject of challenge. These directions were:
"Finally, on the question of corroboration, the essentials of the charge which must be
established by corroborated evidence are: firstly, that the persons concerned were at
the time partners or ex-partners, and there is no dispute about that in this case;
secondly, that the accused engaged in a course of abusive behaviour towards X. On
this second matter you should note that each incident of allegedly abusive behaviour
does not need to be proved by corroborated evidence. Different incidents might be
spoken to by different witnesses. What is crucial is that the course of behaviour is
corroborated by evidence coming from at least two independent sources. That
requires corroboration of at least two incidents forming the alleged course of
behaviour. Provided that is the case, then whether you can convict of other
uncorroborated elements of the charge depends on whether you are satisfied that
those uncorroborated events or elements were part of the same course of abusive
behaviour as I have defined it. So, two incidents at least must be corroborated in the
way I have described."
4
[6]
These directions were taken from the Jury Manual under reference to the approach
adopted by Lord Matthews in an unpublished and currently embargoed first instance
opinion dated 10 August 2021 [DF v HM Advocate.]
Submissions
[7]
The Case and Argument for the appellant asserted that the subheadings of the charge
each amounted to a separate allegation of criminality each of which required to be
corroborated before a conviction could be recorded: (Dalton v HM Advocate 2015 SCCR 125,
HM Advocate 2020 JC 84). The effect of the direction, however, was that an individual could
be convicted of uncorroborated acts of criminality so long as the libel asserted a course of
conduct. It was submitted that although the issue of a course of conduct was considered in
Finlay v HMA 2020 SCCR 317 in the context of section 38, that case can be distinguished
from the current appeal, although the basis for doing so was not clear from the Case and
Argument. 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.
[8]
The Crown argued that the rationale of Finlay applied equally to offences under the
2018 Act and that the directions were correctly given.
Analysis and decision
[9]
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.
5
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" (Campbell v
Vannet 1998 SCCR 207, at p209). That this is so was recognised in Wilson v HMA 2019
SCCR 273, a case involving an omnibus charge of assault, including several incidents
occurring over a period of a month. The court concluded that these had to be viewed as
separate crimes, requiring corroboration, rather than as elements of the one assault. It is
quite clear from the opinion of the Court in Wilson, delivered by Lord Carloway, the Lord
Justice General, that the court considered this requirement did not apply to an offence under
section 1 of the 2018 Act. At para 37 the court stated:
"Separate episodes of assault do not constitute a separate crime known as a course of
conduct in which only one incident requires to be corroborated as if it were an
element in a single episode of assault as in Campbell v Vannet (cf. lewd and libidinous
practices: Stephen v HM Advocate and now the Domestic Abuse (Scotland) Act 2018
s.1(1))."
[10]
That the rule in Spinks v Harrower does not apply to offences under the 2018 Act is a
necessary consequence of the way in which that Act is framed. 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. 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.
[11]
In these circumstances the "course of behaviour" may be equiparated with the
evidential position which applies in relation to a single charge of assault: in the case of a
6
single episode of assault, there is no need for every element of the libel to be corroborated.
In the same way that one must look for corroboration of a single charge of assault, without
demanding corroboration of every individual element thereof, in a case such as this it is the
course of behaviour which must be established, without any requirement for corroboration
of every single element of that course of behaviour. There is one single offence which lies in
a course of conduct.
[12]
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. At para 14 the court stated:
"The expression "course of conduct" used in this context better conveys the idea of
there being a single crime in accordance with the wording in the 2010 Act, that single
crime being committed over a period by a course of conduct, and being capable of
corroboration by independent evidence of two or more of the incidents narrated in
the libel. In such circumstances, where the alleged commission of the crime is by a
course of conduct, there would require to be corroborating evidence of that course of
conduct, i.e. evidence relating to two or more of the incidents referred to in the libel
from which the jury could conclude that these were not isolated acts but truly part of
a course of conduct."
[13]
This reasoning applies with equal, in fact greater, force to an offence under section 1
of the 2018 Act. The matter was examined in detail in the decision of Lord Matthews of DF
(currently embargoed pending trial):
[29]
Other than in a statutory context, one cannot be convicted of a course of
conduct. It is, though, a phrase with which lawyers are familiar. For example, it is
frequently prayed in aid by the Crown in opposing bail where an accused person has
allegedly indulged in similar behaviour over a relatively short period of time such as
breaking into houses in the same area over the course of a few days. Each of these
individual crimes however requires to be corroborated whether independently or by
application of the doctrine of mutual corroboration or the principle enunciated in the
case of Howden. As was said in Rysmanowski at para 17, except in the context of
mutual corroboration the phrase "course of conduct" has no significance in relation
to sufficiency of evidence. Where a number of separate criminal acts are libelled
within the same charge, each will require to be corroborated in the normal way and
7
one cannot avoid the need to corroborate each act simply by asserting that they were
all part of a single course of conduct ... In Finlay, however, the court was dealing
with a statutory offence, a charge under section 38(1) of the Criminal Justice and
Licensing (Scotland) Act 2010 and the allegation was that the appellant had behaved
in a threatening or abusive manner over a substantial period, his behaviour over that
period consisting of "a course of conduct".
...
[31]
The offence under section 1 is committed by engaging in a course of
behaviour of the appropriate kind and subject to the statutory conditions. Following
Finlay, it would be sufficient to prove two incidents of that course of behaviour and if
that were done the jury would be entitled to convict of the remainder, albeit
uncorroborated, if they could find that it was part of the same course of behaviour. "
[14]
The submission for the appellant that it could not have been Parliamentary intention
that such an approach to corroboration would follow is contrary to the clear terms of the
statute creating one single offence consisting of a course of behaviour of any kind which
otherwise meets the terms of the Act. In any event, the policy memorandum accompanying
the Act makes it clear (para 5) that the intention was to enable abuse of various types, taking
place over a period of time, "to be prosecuted as a single course of conduct". The
Memorandum repeats that a "course of behaviour" involves behaviour on at least two
occasions, and states that it is the course of behaviour which is an essential element of the
offence and which requires to be corroborated. Para 41 states: "The requirement for a
"course of behaviour" is an essential element of the offence and will therefore require to be
corroborated."
[15]
The directions suggested in the Jury Manual, and adopted by the sheriff, are
consistent with both Finlay and DF, as well as the principles behind cases such as Campbell v
Vannet. They do not in any event contradict the principles specified in Spinks v Harrower and
similar cases. They are entirely appropriate to the nature of the offence created under the
2018 Act. The appeal against conviction will therefore be refused.
8
[16]
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 and the appeal
against sentence must also be refused.
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