Crown wins appeal against upheld no case to answer submissions in sexual offences trial

About this case:

• Citation:
  [2025] HCJAC 37
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Beckett

Respondent JSH was tried on an indictment containing 20 charges, with the appeal concerning five of those libelling rape, sexual and indecent assault. The Crown argued that all the offences were connected by timing and their link to the respondent’s strict Christian beliefs, which formed the basis for his conduct in respect of the alleged offences.

The appeal was heard by the Lord Justice Clerk, Lord Beckett, with Lord Matthews and Lord Armstrong. Harper KC and McPherson, advocates depute, appeared for the Crown and Brian McConnachie KC and Mullen, solicitor advocate, for the respondent.

‘God gave you to me’

The evidence disclosed that in around 2004 the respondent, who along with his wife UV was a devout practising Christian, became increasingly strict in his adherence to biblical teachings following a visit to an American commune. This included conducting modesty checks on all female members of his family and a belief that God made men to need sex. This led to him penetrating UV in her sleep and on being challenged replying with “God gave you to me, I can do what I want”. UB gave evidence in respect of charges 6 and 7, alleging rape at common law and sexual assault.

In respect of charges 10 and 11, the respondent’s daughter WX stated that on various occasions between 2014 and 2015 he would strike her with a wooden spoon, with charge 10 libelled as sexual assault as he continued to do it when she began menstruating. Charge 11 related to a single occasion when, after the respondent found her doing laundry wearing her shortest shorts, he got on his knees and closely examined her before saying that she couldn’t dress like that around her brothers as “it could cause sexual issues for them”. Charge 12 alleged sexual assault of another of the respondent’s daughters, YZ, when she was aged between 7 and 11.

For the Crown it was submitted that all of the offences were connected by the respondent’s religious justification for his behaviour and were capable of corroborating each other. There was some crossover in the time periods libelled, and in any event all the evidence was before the jury and available for their consideration. On this basis, the acquittals should be quashed.

Senior counsel for the respondent accepted that the submission should not have been sustained on charges 10, 11, and 12. However, the repetition of offending on charges 6 and 7 was very different from those offences involving a single incident. There was no possible view on which the jury could find that the various offences were component parts of a single course of criminal conduct systematically pursued by the respondent.

Open to find

Lord Beckett, delivering the opinion of the court, noted the concessions made by the respondent and said of the remaining issue: “The trial judge referred to WX’s evidence presenting what happened on charge 10 as chastisement based on biblical teaching to which the respondent referred when administering it. He noted that the modesty checks did not just apply to WX but to all of the females in the household. He also noted that YZ did not suggest there was a sexual dimension to charge 12 and confirmed that she had asked her father to pray for her.”

He continued: “On charges 10 and 12, we are unable to say that it is not open to the jury to determine from the evidence that these charges involved sexual touching and therefore sexual assault. Section 60 of the 2009 Act provides for an objective assessment to be made in all of the circumstances. Whilst the jury is entitled to take them into account, neither the respondent’s motivation nor the child’s impression is decisive.”

Considering the available of other mutual corroboration, Lord Beckett said: “Whilst we can understand why defence counsel wished to suggest that charge 8 [of inducing WX to look at sexual images] was not a potential source of mutual corroboration, we do not understand why the trial Depute and judge did not identify it as such. This was plainly a sexual offence. The conduct may be less serious, and it is far from identical to charges 6 and 7, but neither consideration precludes the availability of mutual corroboration.”

He concluded: “In Duthie v HMA (2021), the court rejected the proposition that an act which contains no sexual element at all [emphasis added] can corroborate a sexual one when they occur in a domestic context of abusive, controlling or coercive conduct. We also consider that, depending on what they make of the evidence, it is open to the jury to find a link between charges 6 and 7 on the one hand and charges 10, 11 and 12 on the basis of the respondent’s purported religious justification in carrying out these offences. That is another consideration supportive of the availability of mutual corroboration between these charges.”

The court therefore allowed the appeal, refused the no case to answer submissions, and remitted the case to the trial judge for further procedure.