Thomas Ross KC

I try here to return the story to a factual basis, stripping out the facts that don’t matter to aid understanding.

The Crown alleged that on two separate occasions between March and June 2018 in Dalkeith Country Park Sean Hogg raped and sexually assaulted KM (then aged 13 or 14). At some point – nobody knew when – KM had exhibited distress to a friend (AM). Hogg admitted penetration in relation to the March incident but not in relation to the June incident. There was also a charge of sexually assaulting a different girl (X), probably around October 2018.

In Scotland nobody can be convicted upon the basis of the evidence of a single witness. Where two individuals make complaints of a similar type against the same individual, however; when there are similarities in time and circumstances – the testimony of one complainer can support the testimony of the other and provide sufficient evidence of both allegations – a concept known by Scots lawyers as ‘the Moorov Doctrine’. As both KM and X were alleging sexual assault at the hands of Sean Hogg round about the same time – it was open to the Crown to use the Moorov Doctrine to attempt to prove the case against him.

At trial both KM and X gave evidence along the lines of the allegations that they had made against Sean Hogg. Upon completion of the evidence – and before the lawyers began their submissions to the jury – the trial judge asked the prosecutor to confirm the basis upon which he intended to present his case to the jury. The prosecutor replied “this is a case that’s entirely dependent on Moorov and the jury would require to accept the accounts of both for a conviction of anything … it’s really all or nothing in relation to these charges”. Up to this stage, everything reported is in line with expectations.

At some subsequent stage the trial judge seems to have formed the view that the advocate depute had been wrong, that one of the charges was not entirely dependent on the use of the Moorov Doctrine – a view apparently based upon the notion that the distress witnessed by KM’s friend could corroborate the June incident.

Distress can provide evidential support to an allegation made by a complainer but cannot provide corroboration of penetration – a fact that Hogg denied regarding the June incident (in a different appeal yet to be determined the Crown has since submitted that distress should be capable of corroborating penetration). That was the legal problem with the judge’s approach. The factual problem with it was that it was not terribly clear when the relevant distress had been observed. As it was put in the judgment, “it was not clear when the disclosure related to, who it related to or when it was made”. For these reasons the Appeal Court concluded that the trial judge’s direction about distress amounted to a misdirection.

Having formed the view that he did about distress the trial judge directed the jury that (a) the Moorov doctrine was available as corroboration for all elements of charge two, but in addition, (b) that the evidence of distress could corroborate KM’s evidence “in relation to the last rape she says she suffered”. Hogg’s counsel (who like the prosecutor is completely blameless) had of course had no opportunity to try to persuade the jury not to convict Hogg on the basis of the complainer’s distress. She had rightly only responded to the prosecutor’s submission that Hogg could be convicted by application of – and only by the application of – the Moorov doctrine. If the trial judge had told her before she began her submissions to the jury that he had – subsequent to his public discussion with the prosecutor – changed his mind and decided that distress could corroborate one of the charges – she could have addressed the jury on the factual ambiguities surrounding the distress evidence. This obvious unfairness was predictably fatal to the conviction that followed – ‘the procedure was manifestly unfair and prejudicial to the defence – and on his basis alone the appeal has to succeed’.

Before returning to deal with some of the issues arising from the case, I pause to remind the reader of why the case attracted so much publicity. The jury having rejected the evidence of X as credible and reliable – and convicted Hogg of charge two the judge proceeded to impose a Community Payback Order with a condition to perform unpaid work. The imposition of a non-custodial sentence for such a serious offence would have been interesting enough to the media, but the presence of a further topical factor made it more so: the effect of a particular sentencing guideline.

When sentencing a person under the age of 25, Scottish judges are bound to take account of the Sentencing Young Persons Guideline. This was apparently based upon scientific research supportive of the proposition that human brains are generally not fully developed until around the age of 25 – with the result that those who offend when younger should be judged to be less responsible for their actions. Further in the case of those under 25 ‘rehabilitation’ is specifically stated to be “a primary consideration”. If media reaction is an accurate guide – so far as very serious crime is concerned – this notion has proved to be as popular with the Scottish public as the poll tax. The trial judge innocently added fuel to the fire by publicly stating that Hogg would – but for the guideline – have been sentenced to around five years’ imprisonment. In all the circumstances, it seemed inevitable that the Crown would appeal against the sentence on the basis that it was unduly lenient – and it did. Because the conviction was quashed, the Appeal Court never got round to considering the sentence selected by the trial judge – or the Crown challenge to it – but the Scottish Sentencing Council had by the time of the appeal announced its intention to review the relevant Guideline.

On the morning upon which sentence was passed I have never been party to a media reaction like it. Being contacted by Scottish media organisations was not out of the ordinary, but calls from LBC, GB News and BBC 5 Live told me that something unusual had happened. Our English neighbours simply could not believe that an adult could be convicted of raping a 13-year-old child and avoid a custodial sentence. When asked I agreed that the sentence chosen was extremely unusual. What I did not know then was that Hogg should never have received any sentence at all – he should not have been convicted.

Returning to where I began, I deal with some of the things said in the aftermath of the judgment by the Appeal Court.

It was suggested that the jury had misunderstood the Moorov doctrine. There is absolutely no support for that conclusion – indeed the facts suggest the opposite. The trial judge gave the jury the option of convicting of all charges on the basis of the Moorov docrine, but only if it found both complainers credible and reliable. Clearly the jury didn’t find X credible and reliable and acquitted on her charge. The trial judge had however – in error as it turned out – gave the jury the option of convicting on charge two on the basis of the complainer’s evidence plus distress, and that is exactly what the jury did. The jury was given an option that they shouldn’t have been given and acted on it. There is absolutely no evidence of any misunderstanding on the part of the jury.

It was suggested that KM might now launch a private prosecution. On the basis of the evidence led in the trial that seems very unlikely. In the Glasgow Bin Lorry case an attempt was made to launch a private prosecution. The Crown opposed that attempt on the basis that there was insufficient evidence upon which to base any prosecution. Although the Crown in the Hogg appeal made a last-ditch attempt to argue that an alternative route to prosecution existed – the Appeal Court did not agree – and the Crown has since confirmed that they do not intend to seek authority to re-prosecute Mr Hogg. I stop short of describing that confirmation as a ‘concession’ – the Crown would never have been given permission to do so.

It was suggested that a civil action might be raised against Mr Hogg. There would be no legal bar to this course – and people have drawn the comparison with the successful civil suit against ex-footballer David Goodwillie. I have no information at all about Mr Hogg’s personal circumstances but nothing that I have seen makes me think that he has £100,000 (plus expenses) lying about to settle any civil claim brought against him. Nor do I have any information about the complainer KM, but again from what is known, it seems perhaps unlikely that she has the sort of ready capital required to fund civil litigation. If not she would require to apply for legal aid – and given the evidential difficulties described above and the apparent unlikelihood of recovering any money at the end of it – I would judge the obtaining of public funds to amount to something of an uphill struggle.

It was said that KM was devastated at the outcome of the case. That is easily understood. Given that the jury did not apparently believe the other complainer X an acquittal was ultimately inevitable, but it would no doubt have been a little easier upon KM if that had happened when it should have happened – when the jury returned its verdict. The wrong turn taken in the case ultimately led to it taking on UK-wide publicity, leading to the Crown lodging an appeal against the non-custodial sentence and only for it all to end with no sentence (or conviction) at all. That must have been extremely upsetting for the young woman concerned.

I have covered the things that have been said. I turn to two things that have not yet been said.

Firstly, Sean Hogg has clearly suffered too. Had Sean Hogg been acquitted when he should have been acquitted, it is highly unlikely that, other than those directly involved, anybody in the UK would ever have heard anything at all about him or his case. Sean Hogg hit the headlines nationwide because he was sentenced to community work for rape – when he should never have been sentenced at all. As Sean Hogg emerged from the court to face the press pack in the car park, he was asked the presumably rhetorical question “are you a danger to women?” – an interaction that was broadcast on the evening news. It seems unlikely that Sean Hogg would ever have asked that question – far less it being broadcast on national TV – had the jury simply been given the correct legal directions and acquitted on the basis of them.

Secondly, I have some sympathy for the trial judge. Unlike the prosecutor and the defence counsel the trial judge is not blameless. His substantial intellect earned him a stellar reputation at the Scottish bar – leading to his elevation to the bench at a comparatively young age – but this case will not be numbered amongst his many legal triumphs.

This article first appeared on the Scottish Criminal Law Blog