His Majesty’s Advocate v. D.F. [2024] HCJ 5

Plea in bar of trial:- The minuter was indicted on three charges:- (1) a contravention of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010; (2) an assault to injury on various occasions against the same complainer as in charge 1; and (3) a contravention of section 1 of the Domestic Abuse (Scotland) Act 2018 involving a different complainer in a charge which included averments alleging penetration by the minuter of the mouth, vagina and anus of the complainer with his penis. In relation to charge 3, the minuter raised a plea in bar of trial in terms of section 79(2)(a)(iii) of the Criminal Procedure (Scotland) Act 1995 contending that penetration by the minuter of the mouth, vagina and anus of the complainer with his penis is by definition the crime of rape, contrary to section 1 of the Sexual Offences (Scotland) Act 2009 and that the Crown by seeking  to corroborate the evidence on charge 3, including the acts amounting to rape, by application of the doctrine of mutual corroboration involving the evidence on charge 2, which only libels physical violence was oppressive, unfair and prejudicial. On behalf of the minuter it was submitted, having regard to Duthie v. HMA [2021] HCJAC 23, that the evidence about the rapes could not be corroborated by evidence of physical abuse. On behalf of the Crown it was submitted that the Crown were not seeking to prove the crime of rape but a very serious example of a new offence which was entirely distinct from rape, namely a contravention of section 1(1) of the 2018 Act, and it was not necessary to corroborate every component aspect of that single crime and it was enough that two individual instances of “behaviour” were corroborated. The Crown submitted that whether the conduct was carried out as part of a course of behaviour which was abusive of the complainer which was likely to cause her to suffer physical or psychological harm could only be resolved after hearing the evidence of the case. Here the court considered that the plea in bar of trial on the basis of oppression on the grounds alleged, namely, that the Crown are unable to prove a serious crime it has libelled, an assessment of sufficiency was something that would be determined advance of trial. In addition, it was necessary for the minuter to identify prejudice which he could not. The court did, however, go on to consider the issue raised and repelled the plea in bar of trial. The court considered that disparate offences can be considered as part of a course of behaviour and provided two episodes of the abusive behaviour had been proved would suffice to warrant a conviction of the section 1 charge and whether conviction followed in relation to uncorroborated elements of the charge would depend on whether or not the jury were satisfied that those uncorroborated elements formed part of the same course of behaviour.