Appeal against Conviction by Peter McGuiness against HMA (High Court of Justiciary) [2025] HCJAC 13 (21 February 2025)

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2025] HCJAC 13

HCA/2024/000280/XC

Lord Matthews

Lord Armstrong

Lord Beckett

OPINION OF THE COURT

delivered by LORD BECKETT

APPEAL AGAINST CONVICTION

PETER MCGUINESS

Appellant

against

HIS MAJESTY'S ADVOCATE

Respondent

Appellant: Loosemore; John Pryde & Co (for Aamer Anwar & Co, Glasgow)

Respondent: Harvey AD; the Crown Agent

21 February 2025

Introduction

[1]

This is an appeal against conviction where the principal issue is whether a witness

speaking to observing a complainer's distress some years after the sexual offence

complained of was capable of corroborating the complainer's evidence that the appellant

committed the crime.

[2]

On 1 May 2024 at Glasgow Sheriff Court, the jury found the appellant guilty of

indecent assault committed on various occasions between July 1992 and July 1995, charge 2;

together with a single charge of (non-sexual) breach of the peace at common law, charge 3.

The sheriff admonished the appellant on charge 3 but on charge 2 imposed imprisonment

for 3 years.

[3]

In challenging his conviction on charge 2, on three grounds the appellant contends:

(1) the complainer's disclosure of the offending to DN was not a de recenti statement

and was, thus, inadmissible hearsay;

(2) distress was exhibited after so long that it was not open to the jury to attribute it

to the commission of the crime and the sheriff should have sustained a no case to

answer submission; and

(3) if evidence of distress was capable of providing corroboration, the sheriff's

directions on it were inadequate and a misdirection.

The evidence

The circumstances of charge 2

[4]

The complainer was 45 when he gave evidence at trial. He was around 10 when he

met the appellant and their association developed over several years. The complainer

thought that the appellant ran a youth group his older brother attended. In what appears as

the start of a course of grooming, the complainer became part of the activities the appellant

organised, including playing team sports, visiting swimming pools and trips with other

boys to a local holiday resort where they would stay in a caravan. The appellant would buy

them alcohol. The complainer began to have individual contact with him. He liked the

appellant, enjoyed his company and the complainer's parents had a positive view of him.

[5]

By the time he was 13, the complainer was visiting the appellant's family home. The

appellant would treat the complainer with takeaways and alcohol. The complainer would

stay there overnight, especially if he had been drinking, ostensibly to prevent the

complainer's parents finding out he was drunk. The appellant felt like a big brother. Over

time, the appellant began to touch him. He would try to cuddle the complainer in bed and

would put his leg across his body. The appellant would try to touch the complainer's

genitals despite his pretending to be asleep when this happened. It intensified over time.

He would go to bed drunk and the appellant would soon follow. Up to several times each

month he would wake up and find the appellant touching the complainer's penis and trying

to masturbate him. The appellant began to isolate the complainer from his other friends and

his family. It undermined the complainer's mental health to the extent that, towards the end

of the dates specified, he felt depressed and suicidal. He had no one to talk to about it.

Disclosure of the offending and evidence of distress

[6]

The complainer met DN in or around 1998/1999 through work. They commenced a

relationship which continued over the next 10 years. In 2004, they went on holiday to Gran

Canaria where they were involved in a coach crash. DN's evidence was that some time after

the crash, the complainer disclosed the abuse he suffered at the hands of the appellant. This

could have been at any time after their return home from Gran Canaria in 2004 until she

started college in 2008. She described the complainer as very upset, sobbing and hard to

understand. It was a traumatic conversation but he had spoken of someone he knew,

through his older brother, who seemed to be a youth worker. He described sexual abuse

involving the guy touching the complainer's genitals on more than one occasion. He said he

had been in the guy's house where he lived with his mother and brother. The guy provided

alcohol and cigarettes and knew his family. The complainer gave her the appellant's name.

The complainer gave her the impression it had gone on for years.

[7]

DN explained that she had realised that the complainer was depressed when they

met. She initially attributed this to grief caused by his father's death. What he told her

about abuse now made sense of his depression. He told her she had saved his life.

Trial procedure

[8]

In advance of the prosecutor eliciting evidence from DN about what the complainer

had told her, and his accompanying distress, the appellant's solicitor objected. The

disclosure was not de recenti, was too remote in time from the offending and was

inadmissible hearsay. The sheriff repelled the objection, considering it a matter for the jury

to decide what weight to give the evidence. He reasoned it would be inconsistent with the

decision in Lord Advocate's Reference No 1 of 2023 2024 JC 140 if the jury were to hear evidence

of the complainer's distress but not what had caused it.

[9]

At the close of the Crown case, the appellant's solicitor made a no case to answer

submission contending that distress could only have corroborative effect if accompanied by

a statement capable of being de recenti. Since the disclosure accompanying the distress was

not made de recenti, the distress was unable to corroborate the complainer's evidence. The

sheriff repelled the submission. Whilst he acknowledged that the disclosure was not made

de recenti, it was properly for the jury to determine: (i) whether or not DN'S evidence of the

complainer's distress was credible; (ii) whether the distress was genuine or not; and

(iii) whether distress was due in whole or in part to the abuse he had described.

[10]

In charging the jury, the sheriff addressed distress and corroboration. He directed

that if the jury accepted DN's evidence about the complainer's distress, it could corroborate

his account of indecent assault. The jury would need to be satisfied that distress was

genuine, arose at least in part from the nature of the incident and was not wholly caused by

something else. If the jury found that distress was at least in part due to the nature of the

incident, then DN's evidence could corroborate the complainer's account.

[11]

The sheriff directed that there could be a good reason why a person against whom a

sexual offence is committed may not tell anyone about it or may delay in doing so. Some

people may tell someone about it straight away, but others may not feel able to do so. A

delayed disclosure did not necessarily make it untrue.

Submissions

The appellant

[12]

Counsel conceded that a witness testifying to a complainer's de recenti distress was

capable of corroborating a complainer's evidence of rape: Lord Advocate's Reference No 1 of

2023 at para 240. A judge should direct that a complainer's evidence on a charge may be

corroborated by distress exhibited shortly afterwards but only where the jury are satisfied

that the distress arose spontaneously due to the nature of the incident and that the distress

was genuine: Lord Advocate's Reference No 1 of 2023 at para 239. Although the interval

between the event and the observed distress might be a factor, the important point is

whether the distress was caused by the offence. Intervening occasions on which the

complainer might have exhibited distress may be of some significance, but there is no fixed

interval after which distress cannot constitute corroboration: Wilson v HM Advocate

2017 JC 135 at para 30; Lord Advocate's Reference Nos 2 and 3 of 2023, reported as HM Advocate

v PG and JM 2024 SLT 1207.

[13]

A statement made by a complainer after the relevant incident is normally hearsay

and cannot be used as proof of fact. An exception to that rule arises where the statement is

made de recenti: Lord Advocate's Reference Nos 2 and 3 of 2023 at para 110. Greater latitude in

terms of time and circumstance is allowed with de recenti statements of complainers in

sexual offence cases and with cases involving children: ibid at para 54. A de recenti statement

meant a recent statement or a statement provided at the first reasonable opportunity to

speak to a natural confidante: ibid at paras 104 and 110.

[14]

The court made it clear that for a statement and/or distress to hold corroborative

value, the complainer must still be under the uninterrupted emotional influence of the

offence.

[15]

On the sheriff's approach, emotional distress and de recenti statements would be

treated differently. This would be contrary to the intention of the court in the References of

2023. The approach of the sheriff was illogical. He found that the statement made by the

complainer and spoken to by DN was not de recenti and so not corroborative but then found

that the distress exhibited 9 years post-event was corroborative of his account.

[16]

The temporal latitude afforded to de recenti distress and/or statements in sexual

offence cases could not be extended to distress or statements made many years after the

offence: CA v HM Advocate 2024 HCJAC 29; CJN v HM Advocate 2013 SCCR 124 at para 7.

Disclosure of an offence together with accompanying distress made after such time could

not be corroborative because it did not represent the "natural outpourings of feelings

aroused by the recent injury, and still unsubsided": Dickson, 3rd Edition, para 258. There

had been no cases where this court had determined distress exhibited more than a matter of

days after the offence was corroborative. The sheriff erred in repelling the objection and the

submission of no case to answer.

[17]

In any event, the sheriff's directions on how the jury should treat DN's evidence of

the disclosure and accompanying distress were inadequate. He gave no directions on the

implications of the passage of time in their determination whether they could find

corroboration. He only told the jury to "look carefully at the evidence of distress and decide

what was responsible for it." He failed to direct the jury on how they should assess whether

that evidence was corroborative or not.

[18]

The sheriff gave no direction about the proper use of the evidence of DN about the

complainer telling her about indecent assault. The sheriff determined that that disclosure

was not a de recenti statement. Accordingly, he ought to have directed that the statement

had no corroborative value and could only be used to assist them in understanding the

cause of the distress, not for the truth of its contents.

The Crown

[19]

The evidence of the complainer's disclosure to DN was primary hearsay and thus

admissible; the sheriff was correct to repel the objection. Where the objective of leading

evidence of a prior consistent statement made by a complainer was relevant to an issue in

the case, the evidence of someone who heard it being said becomes admissible as primary

hearsay: Whorlton v HM Advocate 2020 HCJAC 36 at para 5. When taking evidence of

distress, it was permissible to lead what was said by the complainer in her state of distress

so that the distress could be attributed to the crime alleged: Wilson v HM Advocate 2017

JC 135 at para 35; Hogg v HM Advocate 2024 JC 54 at para 35. The disclosure need not be a

de recenti statement to be admissible as primary hearsay, but only a de recenti statement

would have corroborative effect.

[20]

Evidence of distress was corroborative: Moore v HM Advocate 1990 JC 371; Hogg v

HM Advocate. There was no fixed time period in which the distress must be seen: Moore v

HM Advocate; Hogg v HM Advocate; The Lord Advocate's References of 2023. The shorter

the interval, the more likely it would be that the distress was spontaneous and independent,

and thus evidence in itself of what had occurred. The longer the interval, the more

important it was to examine what happened during that period: Hogg at para 28.

[21]

There had been appropriate inquiry as to what happened in the interval between the

offending and the emergence of the complainer's distress. The prosecutor properly took the

complainer's account of how he came to be distressed when he did; his vulnerability and

isolation as a child, the coach crash and hospitalisation in Gran Canaria and his difficulties

with drug and alcohol abuse. Even considering the interval between offending and

disclosure, it remained for the jury to determine whether distress was a genuinely

attributable to the offending described. The sheriff was correct to repel the no case to

answer submission.

[22]

Whilst the appellant founded on authorities where distress was exhibited a matter of

days after offending, it was wrong to say they established that distress could only be

attributable to offending after such a narrow interval. No such principle exists. All that was

required in cases where there was a longer interval between the alleged offending and the

attributable distress was an explanation as to what had happened during that interval: CJN

v HM Advocate 2013 SCCR 124. The courts should disapprove the 3-week time limit on

distress apparently proposed in CJN in light of what was said in Hogg, Moore and the 2023

References.

[23]

Where there is an explanation for an interval between sexual offending and

exhibition of distress, it would be wrong in principle for evidence of that distress to be

inadmissible. It was common in cases of historical sexual offending for there to be such an

interval. Such a principle would be at odds with section 288DA of the Criminal Procedure

(Scotland) Act 1995. The requisite directions reflect modern understanding that there may

be good reasons why a person against whom a sexual offence is committed may not tell

others about it or delay in doing so.

[24]

The only essential direction on distress was that the jury could find DN's evidence of

the complainer's distress corroborative of his account if they were satisfied that the distress

was attributable to what he had described. Accordingly, the sheriff's directions were

adequate.

[25]

The sheriff made it clear that the only source of corroboration on charge 2 was DN's

evidence of distress. It must be presumed that the jury followed that direction. There was

no risk that they would instead have regarded the accompanying statement as corroborative

and no additional direction on the statement was required. There was no misdirection and

no miscarriage of justice.

Decision

Ground 2

[26]

In Yates v HM Advocate 1976, reproduced as a note to the opinion of Moore v HM

Advocate 1990 JC 371, the Lord Justice General (Emslie) explained that evidence of the

complainer's shocked condition on her return home, minutes after she was raped, was

plainly capable of corroborating her account that she had been raped. In Lord Advocate's

Reference No 1 of 2023, in delivering the opinion of a bench of 7 judges the Lord Justice

General (Carloway) explained at para 236 that distress observed by a third party, de recenti,

can corroborate a complainer's account that she was raped. In summarising how juries

should be directed on distress as corroboration, at para 239(c), he confirmed the meaning of

de recenti in this context. It is distress shown by a complainer to a third party shortly after an

alleged incident. At para 240 the court answered the questions in the Reference: "... a

witness testifying to the de recenti distress of a complainer is capable of corroborating direct

evidence from a complainer that she has been raped." A bench of 9 judges heard

Lord Advocate's References No 2 and No 3 of 2023. In delivering the leading opinion LJG

Carloway, at para 52, defined de recenti as meaning "recent; literally of recency."

[27]

An illustration of the court finding that distress observed after a significant interval

was available as corroboration is seen in Drummond v HM Advocate 2015 SCCR 180 where

distress was witnessed perhaps 3 days after the complainer said she was raped. The

complainer had not been at liberty for much of that time. Lord Advocate's Reference No 2 of

2023 (PG) may also be illustrative. The interval between sexual abuse by PG and parental

observation of the complainer's emotional disturbance was not clearly spoken to by the

complainer, aged 6 or 7 at the time of the offence but an adult at the time of the trial. The

Advocate Depute in the present appellant's case explained that he had prosecuted PG at trial

and understood it to be an interval of some weeks. This court is familiar with the

circumstances as each of us formed part of the 9 judge bench. The impression we gained

from summaries of the evidence was that the interval was at least days and perhaps weeks.

Senior counsel for PG did not challenge that distress was available as corroboration when

the Reference was heard and the court proceeded on the basis that it was. Another

illustration is found in Wilson v HM Advocate 2017 JC 135.

[28]

In Wilson the LJG (Carloway) stated, in delivering the opinion of the court, at para 30:

"The question in this appeal is therefore whether the distress described by LM could

support or confirm the complainer's account of lack of consent during an incident

which had occurred more than 24 hours previously. Of course the jury had to be

satisfied that the distress was caused by the event, and not by some extraneous

element, but the sheriff gave clear directions on that matter. The interval between the

alleged offence and the point at which distress is observed is a factor which a jury

will wish to consider, but the important point is whether the jury are satisfied that

the distress was caused by the offence. The occurrence of intervening occasions on

which a complainer might have exhibited signs of distress, but did not, may be of

some significance, but there is no fixed interval after which distress cannot constitute

corroboration (RWP v HM Advocate, Lord Hamilton, p 771). Intervals of more than 24

hours have been considered relevant (ibid ; see also Paterson v HM Advocate , Lord

Justice-Clerk (Cullen), p 759)."

The interval between the sexual assault and a witness observing the complainer's distress

was 30 hours; para 2.

[29]

We note that in Ferguson v HM Advocate 2019 JC 53 the court applied Wilson and

expressed considerable doubt on what was decided in Moore and McCrann v HM Advocate

2003 SCCR 722. In Moore and particularly McCrann, the court appeared to proceed upon

expectations of how a complainer might be expected to behave following rape. In both cases

the court held that the interval of 12 hours between event and the distress founded on was

too long for such evidence to be corroborative. In that context, in delivering the opinion of

the court, LJG (Carloway) explained that great care was required before expressing views

such as those offered in Moore and McCrann on what might be expected of a complainer and

even greater care should be taken before excluding the occurrence of distress as

corroboration where an interval of time had passed. We have no difficulty in accepting this

as sound. Nevertheless, we cannot ignore the context of a delay of only 12 hours. The jury

in Ferguson, where the interval was 33 hours, had been entitled to accept the complainer's

explanation for not exhibiting distress sooner, and it was for them to decide whether distress

was caused by the event and thus provided corroboration.

[30]

What Wilson and Ferguson demonstrate is that in situations where distress is

exhibited within a few days, and particularly where there is an explanation for delay in

distress being observed by another person, it will be a question for the jury to determine if

they can find corroboration under direction by the trial judge. We do not find any departure

from the requirement that the event causing distress was recent to its manifestation. The

passages we have noticed at para [26] above from the two reports of the Lord Advocate's

References of 2023 confirm the position.

[31]

Interesting and creative though the Advocate Depute's argument was, it is not open

to us, as a court of 3 judges, to overturn what was confirmed by a bench of 7 judges in 2023

and another of 9 in 2024. In order to be corroborative of a complainer's evidence that she

was sexually assaulted, distress must be observed relatively shortly after the incident said to

give rise to it. There is no hard and fast rule determining when observed distress ceases to

be available as corroboration; everything will depend on the particular circumstances of the

case. It will often be a question of fact for the jury. There are numerous examples in

reported cases illustrating where this court did and did not consider evidence of distress to

be available as corroboration. There will be cases where the interval between an incident

and observation of distress will be such that, as a matter of law, it is not open to a jury to

find corroboration from distress. This is such a case. An interval of 9 years cannot be

viewed as shortly afterwards/de recenti. Accordingly, it was not open to the jury to find

corroboration in the evidence of the complainer's condition as described by DN. The sheriff

erred in repelling the submission of no case to answer. Accordingly, the appeal succeeds on

ground of appeal 2.

[32]

We do not consider the decision of the court in CJN to be inconsistent with the law as

explained in the Lord Advocate's References of 2023 and as we have summarised it, and its

effect in the appellant's case, at paras [26][31] above. The court's understanding of the law

when CJN was decided preceded the decisions in the recent Lord Advocate's References of

2023. In CJN it was an accumulation of misdirections, including on mixed statements, which

led to the quashing of the conviction. The court did not propose a three-week limit beyond

which distress could never provide corroboration for a complainer's account of an assault or

sexual offence. At para 7, their Lordships explicitly recognised that whilst the corroborative

potential of distress exhibited three weeks after an event might in some circumstances have

little or no effect there could be exceptional cases where it would be available as

corroboration. The court could not and did not set a precise time limit for the availability of

evidence of distress as corroboration.

Grounds 1 and 3

[33]

Having reached the conclusion we have on ground 2 it becomes unnecessary to

determine grounds of appeal 1 and 3. The effect of our decision on ground 2 is that the jury

should not have been considering charge 2 at all and we say no more about ground 3.

[34]

In light of certain submissions advanced, we make the following observations on

ground 1. The sheriff considered that what the complainer told DN many years after the

event was tied to distress. He erroneously determined that distress was available as a

source of corroboration. In para 227 of its opinion in Lord Advocate's Reference No 1 of 2023

the court observed that, in such circumstances, a belated account to a witness of what had

occurred earlier might be excluded as inadmissible hearsay unless brought within certain

exceptions; specifying statutory hearsay and adoption of a statement. We observe that other

exceptions or refinements may arise. Such a statement may be available for the purpose of

contradicting testimony; section 263(4) of the 1995 Act (prior inconsistent statement). Whilst

one witness speaking to another's statement would not generally be admissible as a prior

consistent statement, Coyle v HM Advocate 1994 JC 239, it may become admissible as primary

hearsay, as it did in Coyle, to rebut an attack made on the complainer's testimony based on

supposed prior inconsistent statements. It was in a similar context that the court in Whorlton

found that it was legitimate to adduce an earlier prior consistent statement as primary

hearsay to rebut a criticism of the complainer's veracity based on delayed disclosure.

Wisely, the Advocate Depute departed from his written submission that Whorlton vouched

any report of a complainer's statement always being admissible as primary hearsay where it

is relevant to an issue in the case. That being said, we recognise that in contemporary

practice parties will frequently, and without objection, adduce some evidence of what a

complainer said on first reporting a matter to the police. If the purpose is to establish the

timing of that event, it may not be objectionable but it would not always be necessary to

adduce the words used by the complainer as opposed to the fact of reporting the incident

relating to a particular charge.

[35]

In the course of the hearing, counsel for the appellant briefly sought to develop an

argument not foreshadowed in her case and argument and beyond the scope of her grounds

of appeal. She proposed that evidence of non-recent distress was necessarily inadmissible,

albeit her enthusiasm waned somewhat when she came to realise the implications. She

referred to CA at para 13 where the court suggested it to be unnecessary and wrong to refer

to non-recent distress as available to the jury in assessing the credibility and reliability of a

complainer's evidence. The essence of the court's reasoning was that the absence of consent

was not an issue in the sexual offences against children libelled. Ultimately, the court found

it unnecessary to discuss further any implications from the lapse of time between the events

and the distress. In any event, the passage is obiter, the ratio of the case being that there was

no miscarriage of justice because the Crown case was based only on mutual corroboration,

as had been made abundantly clear to the jury. Accordingly, there was no risk the jury were

misled into thinking that distress was an alternative source of corroboration. The court was

not referred to cases of some relevance, as set out below.

[36]

We need not decide a point not raised in the note of appeal and only tentatively

advanced. If it should arise for determination, we would observe that if evidence is not

corroborative that does not, of itself, render it inadmissible. A witness speaking to a

complainer's distress is simply a piece of circumstantial evidence. In some circumstances it

can provide corroboration, in others it cannot. Juries are commonly told that they can have

regard to all of the evidence in determining what to make of the evidence of a witness,

particularly if their evidence is disputed, contentious or under scrutiny. They are certainly

entitled to do so: Dreghorn v HM Advocate 2015 SCCR 349 at para 35; Fox v HM Advocate

1998 JC 94, Lord Coulsfield at page 117; McDonald v HM Advocate 2010 SCCR 619 at para 27

et seq; PGT v HM Advocate 2020 JC 205 at paras 19-22. Where evidence of a complainer's

distress is unavailable as corroboration, we are not immediately convinced it follows that it

can serve no other purpose in the jury's considerations.

Disposal

[37]

The Advocate Depute appropriately confirmed that if we sustained ground of

appeal 2, the Crown would not seek a re-trial. We shall simply quash the conviction on

charge 2.

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