Recently, there has been a particular interest in the sometimes disruptive issue of the corroboration rule in Scottish criminal trials. This rule does not allow the conviction of any offence with only one piece of evidence. To acquire a conviction at least two independent sources are required to support each crucial fact. The classic example of this law was highlighted in Morton v HM Advocate (1). It is felt that the rule of corroboration is an invaluable piece of legislation which does help in preventing unjust convictions.
Despite the general feeling that corroboration is indeed a good thing, attention has recently been drawn to the issue by the media. On, one hand there are those who say that the law of corroboration is the very cornerstone of Scottish judicial system, whereas the counter argument is that it is outdated and ought to be abandoned. In fact in his recent report on the rule of corroboration Lord Carloway announced that corroboration was an archaic concept and should be abolished, ‘Scots criminal law remains steeped in what is essentially late medieval jurisprudence'(2). Coming under particular pressure is the Moorov Doctrine. It is believed in some circles that cases subject to this doctrine particularly those with significant time gaps are, unprincipled, unpredictable and therefore will give rise to serious injustice for the complainers. This essay will argue using examples that the Moorov Doctrine, should continue to be part of Scots law when the cases are identical in character and circumstance, but should be treated with caution were excessive time has passed between offences.
Upon first sight the Moorov Doctrine appears to be an exception to the rule of corroboration. By way of background, the Moorov doctrine, was established when Samuel Moorov who was the owner of a business in Glasgow, was accused of carrying out a series of separate sexual assaults against several of his female employees (3). In this case only one piece of evidence was available for each offence and that was the similarity of statements of the complainers, it was these statements that brought a conviction. The Scottish law commission defines the doctrine as ‘Representing what might at first sight appear to be an exception to the corroboration requirement by permitting the credible but uncorroborated evidence of a single witness to an offence to corroborate, and to be corroborated by, the credible but uncorroborated evidence of a single witness to another offence’ (4) To be able to use the Moorov Doctrine in a court of law there has to be a similarity between the offences in the following categories, these are, time, circumstance and character. It is not always necessary for all three of these categories to be present but if they are missing it would deem to be more difficult in convincing a jury of guilt.
There are several difficulties involved in taking these cases before a jury, none more so than that of time. There has been no willingness to set out a time limit between the committing of offences by the courts. Despite denials within the judiciary, it seemed for a while that a period of 3 years was being applied (5). In general, this time limit seemed acceptable were there were lots of similarities between the offences (6). However, the rules seem to have been a little more relaxed over the past few years when it comes to the contentious issue of time between offences. The disregard of the time period is illustrated in the case of Cannell v HM Advocate (7) the two charges of sexual assault were 4 years and 4 months apart, this did not stop the use of the doctrine and despite the time gap, at the end of the trial he was sentenced to 12 months in prison. . The case was appealed using the argument that because of the time gap Moorov should not apply. At the conclusion of the appeal, the Sherriff stated that there is no rule of law regarding the time gap. The jury was further told that lengthy time gap was not decisive what was important was the similarities of the offences. However on reviewing the evidence the cases against him were dropped because the offences were deemed too dissimilar. One further example is in the case of Dodds v HM Advocate, the court declared, that if the circumstances and characteristics of the offences are ‘sufficiently peculiar’, this may be sufficient to overcome a long period between charges, thus permitting the application of the doctrine (8).
In this classic Moorov case, Brian Dodds was convicted of raping four vulnerable women and at the time it was said ‘he was lucky to escape a life sentence’. On appeal, it was stated that the arguments put forward by the crown at the time should be ruled inadmissible as it had been surmised that similarities between the offences meant that he must have committed them all. The legal team acting for Dodds, however, stated that the cases did not show a “unity of purpose” and the offences were very different, it was also argued that the time between Offences, a period of nine years was too long. However, Lord Gill, pointed out “The extent of the period of time within which a Moorov similarity can be applied is not and cannot be fixed by a rule of law if the circumstances of the crime are of particularly unusual similarity” (9). Lord Gill further said that ‘the intervals between the charges were too long to justify the use of the doctrine’ which seems a rather confusing statement, to continue with the argument.
One further example in which Moorov was used and which strengthens the case that time limits are a major factor when it comes to miscarriages of justice, was the case of RG v HM Advocate (10). In this case, the appellant was convicted of using lewd, indecent and libidinous behaviour against two girls between 1977 and 1990 the court relied on Moorov on these charges despite the time gap the appellant was sentenced to 12-month imprisonment. Naturally the sentence was appealed and upon appeal it was put to the jury that there had been a misdirection and the Moorov doctrine could not be used due to the large amount of time between the offences a period of 11 years and that also there were ‘no special features which made the similarities compelling’ there was no case to answer. Despite this, the court intimated that despite the time gap Moorov could still be used as there was a number of similarities in both cases. The court eventually considered that the similarities in the cases were superficial and the appeal was allowed. In considering the verdict the court referred to the previously discussed case of, Cannell v HM Advocate (6). In this case, Lady Paton said, “The Appeal Court is reluctant to interfere in such matters but may do so when there has been a misdirection or were certain time lapses emerge between various incidents which are excessive in the circumstances that the law would not permit the application of Moorov’. These cases do go some way to pointing out the main weakness and confusion in applying the Moorov doctrine when it comes to time gaps and sometimes lacks direction by the courts to the jurors. It has long been the perception that Moorov was only used in sexual offences because by their very nature corroboration evidence is difficult to obtain. The law has now moved on and the rule is used in a myriad of cases, such as in HM Advocate v. McQuade (12), where there were six separate assaults involving a razor blade, the main stipulation being that there must be similarity of conduct
It is very difficult to find arguments that the Moorov doctrine should be scrapped, apart from Lord Carloway of course. The doctrine despite the difficulties provides safeguards particularly when it comes to sexual offences which tend to take part in private. The Scottish Criminal Cases Review Commission recently stated that ‘The doctrine must be applied with caution, to avoid a situation in which evidence showing a general disposition to commit some kind of offence might be treated as corroboration’. A quote by Lord Justice Clerk Aitchison
further states ‘the court must be satisfied with practical certainty that the offences are instances of one course of conduct pursued by the same person’.
It has been argued earlier that ‘significant time gaps could give rise to injustices for complainers’, however one counter argument to this is Coffee v Houston in this case a male nurse was accused of carrying out sexual assaults on two girls aged 11in hospital wards at two separate hospitals. As both assaults were identical in character and circumstance the time gap of two years was said to be ‘comparatively long but not fatal’ (12). By way of contrast Russell v HM Advocate, two charges of lewd and libidinous behaviour committed three and a half years apart was ruled to long for the doctrine to apply. In Turner v Scott a period of three years was deemed to be close to the limit but in the end, Moorov was used. Once again these cases show the confusion that seems to exist over time limits when it comes to using Moorov and surely there is no room for grey areas when it comes to the law. However, it could be argued that if the offences are similar in circumstance and character the courts owe it to the complainer to apply Moorov and pursue justice despite the time gaps. Another comment made by Lord Carloway in his review was, ‘do these corroboration rules provide any protection for the accused’.
It is agreed that by abolishing the Moorov doctrine jurors would no longer have to unravel the complexities of the rule. This obviously could be seen as an undeniable relief not only to the jurors but also the court who have to guide them. The Moorov doctrine does seem to stretch the rule of corroboration to the limits, but surely by removing it, the law would be doing a great disservice to the vast majority of complainers, particular victims of sexual assaults. Albeit the system does have its enemies, in particular, Lord Carloway and the time gap problem does need to be reviewed. The addition of the Moorov doctrine to the rule of corroboration surely must be seen as a positive and if the cases are seen as ‘substantially similar’. However, one phrase which was uttered by the Lord Justice General does goes some way to indicating the confusion that exists around time gaps. ‘The length of time elapsing between one alleged act and the others may be a factor of great importance” (3). The biggest hurdle seems to be in defining the confusing element of time gaps between offences. Until there is guidance on this the Moorov doctrine will continue to be under pressure from the likes of Lord Carloway. Despite frailties in the Moorov doctrine, there is always the failsafe rule that cases should be proved beyond reasonable doubt. as the innocence of the accused is the common law presumption in Scots law (11)
To quote the bible, Deuteronomy 19:5 ‘One witness shall not rise up against a man for any iniquity, or for any sin, in any sin that he sinneth; at the mouth of three witnesses, shall the matter be established’.
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