A course of alleged domestic abuse charged under s 1 of the Domestic Abuse (Scotland) Act 2018 does not require corroboration for each separate act libelled, a sheriff has ruled.

Sheriff Douglas Kinloch at Livingston Sheriff Court gave the decision in repelling a submission of no case to answer on behalf of the accused, JH, at the conclusion of the Crown case. 

JH was charged with a course of behaviour between 1 October 2020 and 13 January 2021which was abusive of his partner or ex-partner X, by repeatedly striking her on the body, striking her on the head, persistently demanding intercourse and refusing to use contraception, demanding that she cease contact with male acquaintances, accusing her of infidelity, demanding that she meet him and uttering threats of violence when she refused.

In evidence X spoke to JH constantly pestering her for sex, punching her on the arm and slapping her on the leg on occasions, being questioned over her contact with an ex-partner, and phoning the police on one occasion when JH said her would be over and would "boot the door in" if she wasn't ready. Another witness spoke to JH's "flippant attitude" towards X, to telling them they should get advice about contraception, and to picking X up from her house one time when she was really upset. A police interview with JH was also agreed in which he admitted slapping X "maybe as a joke", and an occasion of threatening to kick her door in when he was "raging" and "trying to get her away from her house" because the person she stayed with didn't want him talking to her.

For the defence it was argued that X had only spoken to three parts of the libel, which were separate incidents that had to be corroborated separately, which they were not. JH had effectively denied assault, and the threat was not an admission of abusive behaviour.

Repelling the defence submissions, Sheriff Kinloch observed first that the offence under s 1 could not be committed by a single incident; and "acts which might otherwise not be connected, or even criminal, become connected and criminal by virtue of being part of a course of behaviour which is abusive of a partner or ex-partner".

After reviewing decisions on proving a course of criminal conduct, he stated: "The effectiveness of the Act depends to a very large extent on whether corroboration is needed for each separate act specified in the libel." The difficulty in applying the cases referred to was that the offence under s 1 required "a course of behaviour", and a charge under s 1 had to be seen as a single crime of engaging in a course of behaviour: "Without a course of behaviour there is no crime."

Just as importantly, much of the behaviour founded on "will not amount to criminal behaviour at all when looked at in isolation. It seems to me that it will not therefore be possible to try and determine whether there have in reality been a number of separate crimes... On this analysis there will never be a need for separate corroboration of separate incidents for a conviction under s 1".

In the present case, each of the three acts spoken to by X fell within the definition of abusive behaviour in the Act, and therefore there was evidence of a course of abusive behaviour. "What is required is corroboration of two or more instances of behaviour, whether or not the behaviour looked at in isolation would amount to a crime."

Taking the Crown evidence at its highest, JH's admissions corroborated X's evidence on the two matters he accepted, and would be "sufficient as a matter of law to allow for a conviction on the charge of a course of conduct involving a single crime being committed on a number of occasions".

In any event there was sufficient evidence for conviction on the permitted alternatives of a contravention of s 38 or 39 of the Criminal Justice and Licensing (Scotland) Act 2010.

Click here to view the sheriff's note.

A decision to similar effect has been reached in an as yet unreported case noted in this month's Journal.