Teacher guilty of child sex offences in Moorov case wins appeal against conviction

The Criminal Appeal Court ruled that there were no compelling features of such a striking similarity to suggest that the two offences were part of the same course of conduct systematically pursued by the appellant.

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Brodie and Lord Malcolm, heard that the appellant “RB” was sentenced to six years’ imprisonment after a jury convicted him of sexual offences committed against two secondary school pupils, to whom he had given extra tutoring at lunchtime and after school and awarded “prizes” such as designer clothes and bottles of Buckfast for taking part in various sexual acts.

The second complainer was the nephew of the first complainer and the Crown relied on the operation of the Moorov doctrine for conviction, as the temporal gap between the offences, at its shortest, was just under 17 years.

The grounds of appeal were that the trial judge erred in repelling a defence submission of “no case to answer”, there being “insufficient evidence” to indicate that the incidents formed part of a course of conduct on the part of the appellant; and that there being “no evidence of compelling features” consistent with such a course of conduct, no reasonable jury could have concluded otherwise and have convicted.

On behalf of the appellant it was accepted that there was “no upper limit” of time beyond which the Moorov doctrine could not be applied, the matter being one dependent on the circumstances of each case.

However, the gap in time of 17 years was such that it was necessary to identify an “extraordinary feature or striking similarity” between the character and circumstances of the respective charges before the doctrine of mutual corroboration could apply.

Such features must demonstrate an “underlying unity of intent” to enable the jury to conclude that, notwithstanding the gap in time, they were component parts of a course of conduct persistently pursued by the appellant.

Here, the similarities were not extraordinary, and there were “significant differences” between the two charges, it was submitted.

There was no evidence to suggest that the appellant had no opportunity to commit other similar offences in the intervening period and there was no evidence to suggest that the appellant’s relationship with the family of the complainers had been with a view to initiate a process of grooming.

It was argued that the similarities relied on in the present case are no more than the “conventional similarities” which might be looked for in cases such as these.

For the Crown it was submitted that the family relationship was important, as although it was not a factor in the abuse of the first complainer, the appellant had developed a friendship with the family as a result of tutoring and the second complainer had known the appellant all his life as a friend of the family.

Looking at it as a campaign, the evidence showed that the appellant got himself into a position where he had carried out abuse of the first complainer without alienating him or having the abuse reported and he remained friendly with the first complainer.

Having successfully abused the first complainer other family members became a focus of interest for further abuse and in that context the second complainer became an “attractive prospect” as a target, it was argued.

However, the judges observed that had to be taken when applying the Moorov doctrine, especially where a limited number of charges were separated by long intervals of time, or there was a “real risk” that evidence which pointed only to a general disposition to commit a particular type of offence would wrongly be allowed to be used as mutual corroboration.

Allowing the appeal, the court also noted that the time gap between the two charges was “substantial” and that the family relationship appeared to be “incidental, rather than a factor precipitating or facilitating the conduct”.

Delivering the opinion of the court, the Lord Justice Clerk said: “There was evidence that, even at the time of the events in the first charge, the appellant acted as tutor to other boys. He continued to do so over the years. The argument that he lacked opportunity to commit such offences is difficult to accept: this is not a case of abuse within a family, where the first occasion for repetition of such abuse occurs when the original complainers have children of their own.

“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 suggests two separate courses of conduct, albeit arising from a particular disposition.

“It was argued that the circumstances were such that the trial judge was correct to leave the decision to the jury. However it has been repeatedly stated that the rule of mutual corroboration must be approached with caution, and this especially when there are only two complainers. In the present case there is the added factor of a 17-year interval between the respective accounts. Given that for the reasons explained earlier, the family connection is not a powerful factor, we are satisfied that the issue should have been withdrawn from the jury. In the circumstances the appeal must succeed.”