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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2023] HCJAC 28
HCA/2023/000010/XC
Lord Matthews
Lord Boyd of Duncansby
Lady Wise
OPINION OF THE COURT
delivered by LORD MATTHEWS
in
Appeal
by
DW
Appellant
against
HIS MAJESTY'S ADVOCATE
Respondent
Appellant: Paterson, (sol adv); Beltrami & Co, Glasgow
Respondent: Ewing (Sol. Adv), KC; Crown Agent
27 July 2023
[1]
This is an appeal against conviction and sentence. Having heard the oral
submissions we indicated that the appeal was refused and that we would give reasons in
writing later. This we now do.
2
[2]
The appellant was convicted of two charges of lewd, indecent and libidinous
practices, one at common law and one under section 20 of the Sexual Offences (Scotland)
Act 2009.
[3]
Charge 1 libelled conduct on various occasions between 20 January 1991 and
31 December 1993 at a number of locations in Hawick. It involved a boy A, aged between 11
and 13.
[4]
Charge 2 libelled conduct on various occasions between 1 June 2010 and 30 April
2011, also at a number of places in Hawick, involving a boy B aged 8 to 9.
[5]
There was also a docket which alleged lewd practices on various occasions between
1 January 1993 and 31 December 1993, also at a number of places in Hawick, involving a boy
C aged between 12 and 13.
[6]
There was no issue as between charge 1 and the docket but it was submitted that the
gap in time between charge 2, the docket and charge 1 was too great to allow the application
of mutual corroboration. A submission of no case to answer was repelled, under reference
to Duthie v HM Advocate [2021] HCJAC 23, and the conviction on charge 2 was challenged on
the basis that the submission should have been upheld.
[7]
The appellant was sentenced to imprisonment for 18 months. It was said that it was
a cumulo sentence and that if charge 2 fell it would have to be revisited. The sheriff, on the
other hand, told us in his report that the sentence on each charge was imprisonment for
18 months, to run concurrently and that is borne out by the minutes. In any event,
submissions were made in support of an assertion that the sentence was excessive.
However, they were predicated on the success of the appeal against conviction. If that failed
it was accepted that there was nothing in the sentence appeal.
3
The evidence
Charge 1 (20 January 1991 to 31 December 1993)
[8]
A said that the appellant would take him and some of his friends out in a car. A
knew C and was best friends with C's brother D. D would be the front passenger and A
would be in the back.
[9]
Sometimes the appellant would let them drive, sitting on his knee. On one occasion
they drove to Selkirk and the appellant bought a pornographic magazine and a packet of
condoms. They drove to a layby and the appellant took out the condoms and magazine to
"show them what grown men did". He took out a condom, masturbated and put it on. He
told the boys to take out their penises so they could masturbate with him. The boys were
too young to ejaculate but the appellant did so into his condom before taking it off to show
them. He tidied himself up and took them home, giving them the remaining two condoms.
They were flavoured.
Charge 2 (1 June 2010 to 30 April 2011)
[10]
B said that the appellant had gone out with a relative of his. With his mother's
permission, the appellant showed him how to play golf and he took him to see a Rangers
game. They ended up at the appellant's house because of traffic problems and they slept in
the same bed. B lay between the appellant's legs and the appellant touched his private parts
over his clothing and rubbed his chest and belly under his clothes. He also grabbed and
squeezed B's naked penis under his clothes. It felt weird and B kept making excuses to go to
the toilet to get away. The appellant told him not to tell his mother. On the next day B went
4
for a bath before going to school and the appellant sat on the toilet and watched him. B
went to the living room to get ready and the appellant told him to face him while he was
drying himself. B said no, out of embarrassment. The appellant asked him if he knew what
a "stiffy" was.
[11]
On another occasion they were driving when the appellant asked if he wanted a shot
at steering. B was excited and sat on the appellant's knees. The appellant had his hands on
B's chest, belly and penis again.
The docket (1 January 1993 to 31 December 1993)
[12]
C said that the appellant had been his rugby coach. They would often meet at school
lunchtimes and the appellant would let him drive his car. This happened many times. He
would sit on the appellant's knee at the latter's suggestion. There was pornographic
material in the car and the appellant used to give him flavoured condoms and encourage
him to masturbate along with him, although C did not do so.
[13]
On one occasion, at Hawick Leisure Centre, they had been swimming and the
appellant asked C into his cubicle. He had an erection and asked C to help him with it but C
ran away.
Submissions for the appellant
[14]
The relevant gap in time was about 17 years. There was no evidence which could
explain it, although there was evidence in the case which suggested that there were
opportunities to offend during that period. It could not be said that the individual instances
were component parts of one course of conduct persistently pursued by the appellant,
5
despite the fact that there were some similarities in the conduct. What was essential in terms
of the settled law were similarities in time, character and circumstances such as to
demonstrate that the individual incidents were component parts of one course of conduct
persistently pursued by the appellant. Time was still an important factor and it would not
do if all that was shown was that there was a general disposition to commit offences of this
nature. Duthie did not say that time was no longer a part of the equation and in order to
bridge the time gap there had to be something more than the similarities which were
demonstrated by the evidence in this case. There was no evidence of offending in the
intervening period, albeit there was opportunity for it.
Submissions for the respondent
[15]
The test was whether it could be said that on no possible view could the jury find
that there was a single course of conduct systematically pursued; Adam v HM Advocate 2020
JC 141 at paragraph 29. That was a very high test and one which in modern practice would
rarely be capable of being passed in cases of child sexual abuse; HM Advocate v BL 2022
JC 176 at paragraph 11. There was no maximum time period after which the principle could
not be utilised. The significance of a long interval would depend on all the circumstances of
the case and the weight to be attached to it would depend on those circumstances; JH v
JC 74. While there had been cases where the gap was too long, such as Reilly v
2020 JC 16, it was clear that the more compelling the similarities were the less significant would
6
be a substantial interval of time. There were compelling and striking similarities in the
conduct alleged in this case.
[16]
While there was no additional evidence to explain the time gaps such as the
appellant being abroad or generational abuse, that was not a prerequisite for the application
of the principle; Adam v HM Advocate at paragraph 39, where the court said:
"There was sufficient evidence upon which the jury could hold the course of conduct
proved. The significance of the absence of similar conduct in relation to other
children was a matter for the jury to assess. It had no effect on sufficiency."
Analysis and decision
[17]
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; Adam paragraph 29. We are not
satisfied that that can be said in this case. 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.
[18]
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
7
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.
[19]
While there was no additional evidence which might explain the time gap, that was
not necessary, as is clearly set out in Adam, albeit in appropriate cases the Crown may seek
to lead evidence of that type.
[20]
The sheriff was correct to repel the submission of no case to answer. The appeal
against conviction is refused.
[21]
Since the sentence appeal depended upon the success of the conviction appeal, it
follows that it too must be refused.
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