Adam v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice General (Carloway),Lord Justice Clerk (Dorrian),Lord Turnbull |
| Judgment Date | 24 January 2020 |
| Neutral Citation | [2020] HCJAC 5 |
| Date | 24 January 2020 |
| Court | High Court of Justiciary |
| Docket Number | No 15 |
[2020] HCJAC 5
Lord Justice General (Carloway), Lord Justice Clerk (Dorrian) and Lord Turnbull
AK v HM Advocate [2011] HCJAC 52; 2012 JC 74; 2011 SLT 915; 2011 SCCR 495; 2011 SCL 744
AS v HM Advocate [2014] HCJAC 135; 2015 SCCR 62; 2015 SCL 245; 2015 GWD 1–9
Advocate (HM) v ER [2016] HCJ 98; 2016 SLT 1267; 2016 SCCR 490; 2017 SCL 46
Advocate (HM) v McDonald 1928 JC 42
Advocate (HM) v SM (No 2) [2019] HCJAC 40; 2019 JC 183; 2019 SCCR 262; 2019 GWD 21–322
CS v HM Advocate [2018] HCJAC 54; 2018 SCCR 329; 2018 GWD 33–420
CW v HM Advocate [2016] HCJAC 44; 2016 JC 148; 2016 SLT 709; 2016 SCCR 285; 2016 SCL 535
DS v HM Advocate [2017] HCJAC 12; 2017 SCCR 129; 2017 SCL 363; 2017 GWD 8–112
Dodds v HM Advocate 2003 JC 8; 2002 SLT 1058; 2002 SCCR 838
Donegan v HM Advocate [2019] HCJAC 10; 2019 JC 81; 2019 SCCR 106; 2019 GWD 10–134
HMcA v HM Advocate [2014] HCJAC 41; 2015 JC 27; 2014 SCCR 441; 2014 GWD 16–291
Howden v HM Advocate 1994 SCCR 19
JL v HM Advocate [2016] HCJAC 61; 2016 SCCR 365; 2016 SCL 715; 2016 GWD 22–393
JM v HM Advocate [2018] HCJAC 30; 2018 SCCR 149; 2018 GWD 19–240
JW v HM Advocate [2018] HCJAC 10; 2018 SCCR 74; 2018 GWD 3–53
KH v HM Advocate [2015] HCJAC 42; 2015 SLT 380; 2015 SCCR 242; 2015 SCL 674
MR v HM Advocate [2013] HCJAC 8; 2013 JC 212; 2013 SCCR 190; 2013 SCL 338; 2013 GWD 4–115
Moorov v HM Advocate 1930 JC 68; 1930 SLT 596
Morton v HM Advocate 1938 JC 50; 1937 SN 108; 1938 SLT 27
Ogg v HM Advocate 1938 JC 152; 1938 SLT 513
Pringle v Service sub nom Pringle v Procurator Fiscal, Dumbarton [2010] HCJAC 127; 2011 JC 190; 2011 SCCR 97; 2011 SCL 233; 2011 GWD 2–88
RB v HM Advocate [2017] HCJAC 24; 2017 JC 278; 2017 SLT 714; 2017 SCCR 278; 2017 SCL 545
RBA v HM Advocate [2019] HCJAC 56; 2020 JC 16; 2019 SLT 1171; 2019 SCCR 349
RF v HM Advocate [2016] HCJAC 52; 2016 JC 189; 2016 SLT 746; 2016 SCCR 319; 2016 SCL 585
RMY v HM Advocate [2018] HCJAC 41; 2018 SCCR 253; 2018 GWD 23–284
Reilly v HM Advocate [2017] HCJAC 5; 2017 SCCR 142; 2017 SCL 347; 2017 GWD 6–84
Reynolds v HM Advocate 1995 JC 142; 1996 SLT 49; 1995 SCCR 504
Stewart v HM Advocate [2007] HCJAC 32; 2007 JC 198; 2007 SCCR 303; 2007 GWD 20–345
Tudhope v Hazelton 1985 SLT 209; 1984 SCCR 455
Hume, D, Commentaries on the Law of Scotland Respecting Crimes (4th Bell ed, Bell and Bradfute, Edinburgh, 1844), ii, 383
Justiciary — Evidence — Corroboration — Mutual corroboration — Sexual offences against children — Whether special or compelling circumstance required for mutual corroboration to apply where significant gap in time between offences against different complainers
Justiciary — Procedure — Charge to jury — Corroboration — Mutual corroboration — Whether specific direction on requirement of special or compelling circumstance necessary
James Adam was charged at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate, on an indictment libelling various charges involving the sexual abuse of three children. On 28 March 2019, he was convicted after trial at the High Court of Justiciary in Edinburgh. On 23 April 2019, he was sentenced to eight years' imprisonment. The appellant thereafter appealed against conviction to their Lordships in the High Court of Justiciary.
Brian Daisley was charged at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate, on an indictment libelling various charges involving the sexual abuse of two children. On 29 January 2019, he was convicted after trial at the High Court of Justiciary in Glasgow. On 5 March 2019, he was sentenced to an extended sentence of ten years, with a custodial term of eight years. The appellant thereafter appealed against conviction to their Lordships in the High Court of Justiciary.
The appellants were each individually charged, tried and convicted on indictment of various charges concerning the sexual abuse of children. The first appellant was convicted of a number of charges involving three complainers, with the charges in relation to the third complainer taking place some six years after the final incident involving the second complainer. The second appellant was convicted of offences against two children, with the conduct against the second complainer taking place some eight years after the offences against the first complainer. In each case, the Crown relied upon the application of the doctrine of mutual corroboration to afford corroboration of the charges. The appellants appealed.
The appellants argued that there required to be some special or compelling circumstance of the conduct to allow the doctrine of mutual corroboration to be applied where there was a significant gap in time between offences against different complainers. The first appellant submitted that the trial judge ought to have given the jury a specific direction on the need for a special or compelling feature of the conduct in those circumstances.
Held that: (1) in cases involving the peculiar crime of the sexual abuse of children by adults, there already existed a special, compelling or extraordinary circumstance which would be sufficient for the jury to find the necessary course of conduct established, at least in cases which did not involve an exceptionally long gap in time (para 35); (2) whether a specific direction on the necessity for a special or compelling feature was required would depend on the circumstances of the case and the critical direction which was required was one which explained the requirement for the crimes to be so closely linked by their character, circumstances and time as to bind them together as parts of a course of criminal conduct systematically pursued by the accused (para 38); (3) in each case, there had been sufficient evidence upon which the jury could hold the course of conduct proved (para 39); and appeals refused.
CS v HM Advocate 2018 SCCR 329 distinguished.
The cause called before the High Court of Justiciary, comprising the Lord Justice General (Carloway), Lord Justice Clerk (Dorrian) and Lord Turnbull, for a hearing, on 12 December 2019.
At advising, on 24 January 2020, the opinion of the Court was delivered by the Lord Justice General (Carloway)—
Opinion of the Court—
[1] These two appeals raise a question about the application of mutual corroboration in cases involving charges libelling the sexual abuse of children by adults, when there is a significant gap in time between the abuse of the different complainers. This involves a consideration of whether there requires to be a special or compelling feature in such cases and whether a jury must be directed specifically in those terms.
[2] On 28 March 2019, at the High Court in Edinburgh, Mr Adam was found guilty of seven charges involving the sexual abuse of three complainers. These can be divided into two blocks; with the earlier of these enveloping four charges. The first charge involved lewd, indecent and libidinous practices in the years 1975 to 1977 towards LC, who was then aged between 10 and 12 years old. The second libelled similar practices in the years 1977 to 1981, when LC was aged between 12 and 16, contrary to sec 5 of the Sexual Offences (Scotland) Act 1976 (cap 67). The third involved one occasion of lewd, indecent and libidinous practices in 1976 towards AH, who was then aged 12. The libel of this charge also involved the use of the same practices towards LC, contrary to sec 4(1) of the Criminal Law Amendment Act 1922 (13 & 13 Geo 5 cap 56). The fourth charge was the rape of LC some time in 1980 or 1981, when she would have been aged 15.
[3] The later block of charges involved, first (charge 5), lewd, indecent and libidinous practices in the years 1988 to 1996 towards LD, who was Mr Adam's stepdaughter, when she was aged between 4 and 13 years old. Secondly (charge 7), it involved the same practices in the years 1996 to 2000, when LD was aged between 12 and 16, contrary to sec 6 the Criminal Law (Consolidation) (Scotland) Act 1995 (cap 39). The final charge (8) was a libel of a single episode of indecent assault on LD, in 2001, by digital penetration.
[4] On 23 April 2019, the trial judge sentenced Mr Adam, who was then aged 81, to eight years' imprisonment.
[5] LC had a difficult and deprived upbringing. She was extremely vulnerable. From the age of about 7 until she was 10 or 11 years old, she was in residential care, but returned home at weekends. From the age of 11 until 13, she lived at home, but was seldom at school. From the age of 13, she was again in residential care, but returned home at weekends. She eventually moved to a hostel, where she stayed from the age of 15 until she was 18.
[6] LC was in the habit of visiting a neighbour of her mother. It was during these visits that she met Mr Adam. He lived nearby. He would take LC to Glasgow, where he would invite her to watch prostitutes soliciting for work. He would ask LC whether she wanted to do this work. She was only aged between 10 and 13. On the return car journeys, Mr Adam would stop in laybys and induce LC to masturbate him and to perform oral sex on him. This continued on a regular basis from when she was about 10 until she was about 15 years old. During these episodes, Mr Adam displayed a particular interest in LC's vagina, notably the amount of her pubic hair. Mr Adam would give LC cigarettes and money, along with other inducements, during this time.
[7] On one of the occasions, when Mr Adam had taken LC to Glasgow, they were accompanied by a childhood friend of the complainer, namely AH. They had all watched the prostitutes. On the way home, Mr Adam had induced LC to masturbate him. AH had been present and had seen this happening. She gave evidence that Mr Adam had asked her if she wanted to do this, but she had declined. Both LC and AH were able to describe the same unusual feature of Mr Adam's penis.
[8] When LC was about 15 years...
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