Judges allow one appeal but refuse another on application of Moorov doctrine of mutual corroboration

The Criminal Appeal Court ruled in the case of RG v Her Majesty’s Advocate that the Moorov doctrine could not be applied to the circumstances of the case, where the time lapse between the two charges was 11 years.

Meanwhile, in the case of JL v Her Majesty’s Advocate, which the judges said should be read in conjunction with the opinion in RG, a man found guilty of three charges involving the physical and sexual abuse of his daughter, younger cousin and step-daughter – where the gap in time between each of the charges was more than six years – failed in an appeal against his conviction.

In RG, the Lord Justice Clerk, Lady Dorrian, sitting with Lord Bracadale and Lady Clark of Calton, heard that the appellant was sentenced to 12 months imprisonment after being convicted of the two charges following a trial Dumfries Sheriff Court in August 2015.

There were four charges on the indictment, but charges 1 and 4 were found not to have been proven and charges 2 and 3 depended upon the application of the doctrine of mutual corroboration.

At the conclusion of the Crown case, the trial sheriff heard a no case to answer submission.

It was submitted that the Moorov doctrine could not apply in light of the lengthy gap in time between charges 2 and 3.

However, the sheriff concluded that there was “no specific rule of law” as to the interval of time between the charges which rendered the doctrine of mutual corroboration inapplicable, and he repelled the submission.

The first ground of appeal was that the jury was not entitled to return verdicts of guilty, as it was not appropriate to apply the Moorov doctrine to charges 2 and 3 since there was a gap of 11 years, and there were no “special features” which made the similarities “compelling”.

The second ground of appeal was that the sheriff misdirected the jury in the application of the Moorov doctrine to charges 2 and 3.

It was argued that the lack of a direction to the effect that, where the interval was a long one, it was necessary to consider whether there were any special features in the evidence that nonetheless made the similarities compelling, was a “miscarriage of justice”.

Allowing the appeal, the judges observed that the similarities in the case were “superficial”, and the differences “substantial”.

Delivering the opinion of the court, the Lord Justice Clerk said: “There is nothing in the evidence which presents any compelling picture suggestive of a course of conduct systematically pursued by the accused… In our view this is just such a case: the law would not permit the application of the Moorov doctrine to the circumstances of this case and this appeal must succeed.”

In JL, the court heard that the appellant was sentenced to an extended sentence of 15 years with a custodial term of 12 years after being convicted of the three charges following a trial at the High Court in Edinburgh in August 2015.

Of the 14 charges on the indictment, the appellant was convicted of charges 3, 6 and 11, the remainder having been withdrawn by the Crown during the course of the trial.

At the close of the Crown case, the defence made a “no case to answer” submission, arguing that the Moorov doctrine could not be applied between charges 3 and 6 (six years and six months), and 3 and 11 (six years and 11 months) because of the “significant lapse in time” between those charges.

Esto the difference in time did not preclude the application of the doctrine, there was “insufficient similarity” in the character and circumstances of each charge.

But the trial judge concluded that there was sufficient evidence that the appellant pursued a “common course of criminal conduct” against all three complainers

On appeal, it was contended that the Moorov doctrine was “inapplicable” to charge 3 given the lapse of time between charges 3 and 6 and charge 11, and that the trial judge had erred in repelling the no case to answer submission.

It was submitted that the gap in time between charge 3 and charges 6 and 11 was such that it was necessary to identify an “extraordinary feature” or “striking similarity” between the charges before the doctrine of mutual corroboration could apply, but there were “significant differences” between them.

It was also contended that the trial judge had misdirected the jury by failing to give a “clear and unequivocal direction” that where the time gap between the offences was a long one, the jury required to consider whether there were any extraordinary features in the evidence that made the similarities compelling.

Refusing the appeal, the judges said there was “no maximum interval of time fixed by law beyond which the Moorov principle cannot apply”.

Delivering the opinion of the court, Lady Dorrian said: “The probative effect of a significant time gap can only be determined in light of all the circumstances of the case. The search is always for an underlying unity of intent such as to indicate a course of conduct on the part of the accused. The more similar the conduct is in terms of character, the less important a significant time gap may be.

“Conversely, ordinary similarities may suffice where there are shorter gaps because a course of conduct may be more readily inferred. Even where there has been a substantial interval of time, compelling similarities will merit consideration of the whole circumstances for the jury.

“Applying these dicta to the circumstances of the present case, we consider that the features relied on by the advocate depute and referred to by the trial judge present a highly compelling picture suggestive of a course of conduct systematically persisted in by the appellant.

“In the circumstances, the evidence presented a compelling picture indicative of a course of conduct systematically pursued by the appellant.”