It was submitted on behalf of the accused that the evidence led in respect of two charges of lewd, indecent and libidinous practices were not mutually corroborative. At trial the judge accepted the no case to answer submission.
The complainers were a brother and sister who had been neighbours of the respondent between 1979 and 1981. At the time of the alleged incident the respondent would have been 18 years old, the brother had been between 6 and 7 and the sister between 7 and 9.
Charge one related to an incident whereby the respondent was alleged to have made a sexualised comment towards the girl and touched her vagina over her clothing. The second involved various occasions whereby it was alleged the respondent touched the boy’s penis and encouraged him to masturbate him.
At trial, both of the complainers gave evidence. In giving evidence the girl said that while she could not remember any contact, she stated that she had a ‘pretty strong belief’ that it had occurred and she had blocked it out. In accepting the submission the trial judge expressed concern in respect of this and was of the view that there were significant differences between the charges which prevented them from being mutually corroborative.
It was argued that the trial judge had erred in accepting the submission due to the similarities between the charges.
In providing the opinion of the court, Lord Carloway stated: “It is no doubt correct, as the judge observed, that there were dissimilarities in the accounts of the abuse spoken to by the two complainers. The scale of the abuse of the second complainer was far greater than that said to have been perpetrated against the first complainer. Whether that is significant will be for the jury to gauge. It is not for the judge to conduct an intensive analysis of the respective accounts at the stage of a submission of no case to answer.”
He concluded: “The judge has to ask himself simply whether on no possible view of the evidence could it be said that the respective accounts of abuse constituted component parts of a single course of criminal conduct systematically pursued. This is a very high test. It is one that in modern practice will rarely be capable of being passed in cases of child sexual abuse.”
The appeal was allowed and the case remitted for further procedure.