‘Mutual corroboration’ could not be applied in case of uncle accused of sexually abusing niece and nephew

Lord Uist ruled that the “Moorov” doctrine could not be applied to corroborate the conduct libelled in the two charges.

The High Court heard that the accused, “AP”, was charged with two charges of lewd and libidinous practices at common law.

Charge 1 libelled repeated and extremely serious sexual abuse of his nephew then aged between 8 and 13 years between March 1991 and March 1997 in the accused’s home.

Charge 2 libelled a single instance of sexual abuse of his niece when she was aged about nine by entering the bedroom where she was sleeping, leaning over her and putting his hand inside her pyjama top, touching her on the body and fondling her.

The Crown relied on “mutual corroboration” of each charge by the other for a sufficiency of evidence on each charge.

At the conclusion of the Crown case a submission of “no case to answer” on each charge was made on behalf of the accused.

The first point was that on charge 2 there was “no proper evidence of identification of the accused as the perpetrator by his niece, but the judge ruled that there was “no merit” in this argument.

Lord Uist considered that it could be “inferred from the circumstances” that he was the perpetrator and that it would be “open to the jury” to hold that the accused was identified as the perpetrator of the conduct in charge 2.

The second point was that the rule of mutual corroboration could not apply between the charges because of the “different nature of the conduct” libelled in each charge and the fact that charge 2 involved a single incident three years after the end of the period libelled in charge 1.

The “degree of difference in the gravity” of the conduct libelled was such as to prevent the application of the rule of mutual corroboration. It was argued, therefore, the jury in this case could not conclude that the two charges were part of the “same course of criminal conduct” systematically pursued by the accused.

It was accepted that there were some similarities in that both children were staying in the accused’s house at the material time, but there were also differences: his niece was asleep in her bed while his nephew was awake in the living room; nothing was said to his niece while remarks were made to his nephew to secure his compliance and silence; the conduct differed in gravity with one incident involving touching the body of his niece but repeated serious abuse in the case of his nephew.

The difference in the gravity of the conduct was “so stark” that the jury could not construe the crimes as part of a single course of criminal conduct, it was submitted.

In response the advocate depute submitted that there were “significant similarities” in the conduct involved in each charge: the complainer in charge 1 was the accused’s nephew and the complainer in charge 2 was his niece; his nephew spoke to abuse from the age of 9 to 13 and his niece spoke to abuse when she was 9 or 10; and the abuse in each case occurred when the complainer was staying overnight at the accused’s home.

It was argued that there was “no rule that lesser conduct could not corroborate more serious conduct”.

However, the judge upheld the submission of “no case to answer” and acquitted the accused of both charges.

In a written opinion, Lord Uist said: “Having considered the competing submissions I have reached the conclusion that it would not be open to the jury on the evidence in this case to apply the Moorov doctrine to provide corroboration of charge 1 by charge 2 and corroboration of charge 2 by charge 1.

“I accept that it is now clear law that there is no rule that less serious conduct cannot corroborate more serious conduct for the purpose of applying the Moorov doctrine, but there must in my opinion be some limit to the application of that rule.

“For example, it is clear that attempted rape or assault with intent to rape can corroborate rape. It does not follow that conduct of relatively minor gravity can corroborate conduct of relatively major gravity.”

He added: “The conduct involved in each charge is quite different: that in charge 1 involved repeated instances of the most grave sexual abuse over a period of years, whereas that in charge 2 involved a single incident of relatively minor touching.

“I accept that the application of the Moorov doctrine has been extended in recent years, but I do not consider that it has been extended to such an extent that the sort of conduct in charge 2 is capable of corroborating the sort of conduct in charge 1.

“Nothing said in any of the recent cases on the subject persuades me that it has. I do not think that any of the judges who have opined on this issue ever envisaged that the sort of conduct libelled in charge 2 could corroborate the sort of conduct libelled in charge 1.

“In this case the underlying similarity of conduct in the two charges is lacking with the consequence that the jury would not be entitled to apply the rule of mutual corroboration.”

The judge also said that he did not think that the time gap was of any consequence in relation to the question of similarity of conduct, adding that “if charge 2 had been libelled as having occurred a week after charge 1, I would still have reached the same decision”.