Criminal Appeal Court clarifies application of ‘mutual corroboration’ in child sex abuse cases

The appellants argued that where there was a significant gap in time between the offences against different complainers, there required to be some “special or compelling feature” of the conduct to allow the so-called “Moorov doctrine” to be applied, but the High Court of Justiciary Appeal Court refused the appeals after ruling that there was “sufficient evidence” in both cases for the jury to convict.

‘Substantial time gap’

The Lord Justice General, Lord Carloway, sitting with the Lord Justice Clerk, Lady Dorrian, and Lord Turnbull, heard that in January 2019 Brian Daisley was given an extended sentenced to 10 years with a custodial part of eight years after being found guilty of three charges involving the sexual abuse of his step-children over a 14-year period, and that in April 2019 81-year-old James Adam was sentenced to eight years’ imprisonment having being found guilty seven charges involving the sexual abuse of three children.

In Mr Daisley’s case the time gap between charge 1 and charges 2 and 3 was eight years, while in Mr Adam’s case the time gap between the two blocks of charges was more than six years.

On behalf of Mr Daisley, under reference to Moorov v HM Advocate 1930 JC 68, which set out the parameters of the principle of mutual corroboration, it was argued that the trial judge erred in failing to uphold a defence submission of “no case to answer” in relation to charges 2 and 3.

It was submitted mutual corroboration could not apply between charge 1, on the one hand, and charges 2 and 3 on the other, as “compelling similarities” were required.

The substantial time gap, in the absence of some extraordinary feature, was “destructive” of the notion of a course of conduct.

It was argued that the differences between the charges were “stark” and that lack of similarities in relation to the behaviour, the limited number of charges and the opportunity to have engaged with other children sexually, meant that the Crown case at its highest was not sufficient to allow the trial judge to find the necessary underlying unity.

On behalf of Mr Adam it was submitted that while there was no maximum interval of time beyond which the principle of mutual corroboration could not apply, four years was generally recognised as a “substantial gap”.

Where there was a long interval, there had to be “compelling similarities” before the principle could apply – a “special feature” of the behavior, which the similarities compelling, was required (CS v HM Advocate 2018 SCCR 329).

It was also submitted that where there was a long time gap, further guidance to the jury was necessary, notably a clear mention of the need for some special or compelling feature of the conduct.

‘Compelling circumstances’

Refusing the appeals, the judges made clear that the “settled law” on mutual corroboration is that the testimony of one witness about one crime may be corroborated by a second witness’ testimony about another crime where there are similarities in time, place and circumstances in the crimes “such as demonstrate that the individual incidents are component parts of one course of conduct persistently pursued by the accused”.

Delivering the opinion of the court, the Lord Justice General said: “It is correct to say that, where a limited number of charges are separated by a long interval of time, there is a risk that evidence, which points only to a general disposition (ie propensity) to commit a particular type of offence, will wrongly be allowed to be used as corroboration… To be admissible, and used as proof, it must comply with the test for the application of mutual corroboration.

“In relation to time, it is undoubtedly correct to say that, although it is accepted that there is no maximum period beyond which mutual corroboration cannot apply, there are dicta which suggest that, where there is a substantial gap between two crimes, there must be compelling or extraordinary circumstances in play to allow that application.

“In essence, in cases involving the peculiar crime of the sexual abuse of children by adults, there already exists a special, compelling or extraordinary circumstance which will be sufficient for the jury to find the necessary course of conduct established, at least in cases which do not involve an exceptionally long gap in time. For these reasons there was sufficient evidence in this case and the appeals on this ground fail.”

Lord Carloway added: “In relation to the form of any necessary or appropriate direction to the jury, there has been a tendency in recent years for the court to sanction the need for judges to direct the jury on how they should approach matters of fact which are within their exclusive province to determine.

“The parties have pointed to certain dicta on the need for a specific direction on the necessity for a special or compelling feature; the high point being CS v HM Advocate. Whether such a direction is required will depend on the circumstances of the case.

“CS was concerned with an 11-year gap in relation to assaults and rapes against different adult complainers. Mr Adam’s case is quite different in nature, having regard to the ages of the complainers. The time gap is much shorter than that in CS.

“The critical direction in the modern era is the one which the judge gave on the requirement for the crimes to be so closely linked by their character, the circumstances of their commission and time as to bind them together as parts of a course of criminal conduct systematically (or persistently) pursued by the accused.

“In both cases there was sufficient evidence upon which the jury could hold the course of conduct proved. The significance of the absence of similar conduct in relation to other children was a matter for the jury to assess. It had no effect on sufficiency. Similar considerations apply to the differences in gender of the complainers in Mr Daisley’s case. The appeals are therefore refused.”