Similarities in sex offences in mutual corroboration case were not sufficient to overcome 17-year time gap, appeal court rules

The High Court of Justiciary Appeal Court ruled that the similarities between the offences were not “sufficiently compelling” to overcome the “very substantial time gap”.

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Menzies and Lord Malcolm, heard that the appellant “JM” was convicted of a charge of lewd and libidinous practices against the first complainer when she was aged nine, on various between September and December 1997, and two charges against the second complainer, namely causing her to engage in sexual activity contrary to section 21 of the Sexual Offences (Scotland) Act 2009, and sexually assaulting her contrary to section 20 of the 2009 Act, both offences occurring on various occasions when she was aged between six and seven between December 2014 and July 2015.

Mutual corroboration

The issue in the appeal was whether there was sufficient evidence to justify the application of the doctrine of mutual corroboration, as set out on Moorov v HM Advocate 1930 JC 68, in charges involving two complainers where the shortest gap in time between the alleged offending was a period of just under 17 years. 

The court was told that the sheriff repelled a “no case to answer submission”, notwithstanding that the fiscal, in resisting the motion, had referred to the conduct as “opportunistic”. 

The sheriff observed that while there was no upper limit to the time over which the Moorov doctrine could apply, for it to do so over a period as long as 17 years there had to be some “extraordinary or compelling feature” to entitle the jury to find the necessary underlying unity. 

The sheriff considered that there were such features and ultimately held that it could not be said that there was no possible view on which the jury would be entitled to characterise the similarities as extraordinarily compelling.

‘Insufficient evidence’

But on appeal it was maintained that there was “insufficient evidence” to indicate that the charges formed part of “a course of conduct systematically pursued” by the appellant.  

The main argument was that although there was no maximum period beyond which the doctrine could not apply, the longer the gap the more difficult it was to draw the inference of an underlying unity, particularly in a limited number of charges, where great care must be taken to avoid using as corroboration evidence pointing only to a general disposition. 

It was submitted that there were “no special or compelling points of similarity” which might overcome the significance of the lengthy gap in time. 

Something more than repetition of a series of similar crimes was required, but there was no evidence indicative of continuity, necessary to establish a course of conduct.

‘Compelling similarities’

For the Crown, it was recognised that a gap of 17 years presented a “considerable hurdle” to the operation of the doctrine, and it was acknowledged that where the interval was very long it was necessary to consider whether there were any special features which nonetheless made the similarities compelling.

But the advocate depute submitted that the matter should be left to the jury unless it could be said that on no possible view could there be a connection between the charges. 

The Crown relied on the individual factors which were said to be so compelling as would entitle the jury to draw the necessary inference of unity, as referred to by the sheriff.

The advocate depute referred to DS v HM Advocate [2017] HCJAC 12 as supporting his argument that the features in this case, including what appears to be a certain degree of grooming, were capable of being treated as “sufficiently compelling to elide the time gap”.

‘Substantial time gap’ 

However, the appeal judges allowed the appeal after observing that what may be sufficient to elide a time gap of seven years, as in DS, may not suffice when the gap is a much larger one.

In a written statement of reasons, the Lord Justice Clerk said: “In our view the circumstances of this case present no compelling circumstances capable of overcoming the very substantial time gap. 

“The position is exactly as was described in RB v HM Advocate 2017 JC 278 para 33: ‘There are, of course, similarities in the conduct, but they are the similarities which one might expect to find in any two offences of this kind. There are no similarities of such a striking or extraordinary nature which might suggest that the two offences were part of the same course of conduct, systematically pursued by the appellant. The evidence in the present case suggests two separate courses of conduct, albeit arising from a particular disposition.’ 

“For these reasons the appeal will be allowed.”