HER MAJESTY'S ADVOCATE AGAINST ER
HIGH COURT OF JUSTICIARY
[2016] HCJ 98
OPINION OF LORD MALCOLM
in causa
HER MAJESTY’S ADVOCATE
against
ER
______________
Crown: I Wallace, AD, Smith
Panel: I Bryce (sol adv); Central Court Lawyers, Livingston
19 August 2016
[1] In a “no case to answer” submission made on behalf of the accused at the close of the Crown case, Mr Bryce submitted that there was an insufficiency of evidence in respect of firstly, charges 1, 2 and 3, which concern alleged events in the mid‑1980’s, and in which the complainer is E, and secondly, charges 8, 9 and 13, which relate to alleged events in 2012/13, and in which the complainer is F. Charge 1 involves several alleged assaults, culminating in a charge of attempted murder. Charges 2, 3, 8, 9 and 13 relate to penetrative sexual offences, principally of anal rape, although charge 9 concerns sexual intercourse while the complainer was asleep. It was accepted that the evidence on the other charges of physical violence against F can be corroborated by the evidence led in respect of the charges concerning the third complainer, J. Mr Bryce understood, it transpired correctly, that in respect of the charges in question, the Crown relies on the application of the doctrine in Moorov v HM Advocate 1930 JC 68.
[2] Under reference to various cases Mr Bryce stressed that, for Moorov to apply, the evidence had to demonstrate a course of conduct, not merely similarities in the accused’s behaviour. The offences must be component parts of a course of conduct systematically pursued. Demonstration of a propensity to commit a certain crime or type of crime is not enough. Emphasis was placed on the lapse of 24 years between the first and second set of charges. This was the longest he had found in his review of the case law. Given this feature Mr Bryce questioned whether this could ever be described as a course of conduct. He referred to the evidence of PC Paton. The officer told the court that she had interviewed a former partner of the accused and three ex‑wives, none of whom reported offending conduct on the part of the accused. Again Mr Bryce asked “How then can the relevant charges be seen as part of a course of conduct systematically pursued by the accused?”
[3] It was submitted that the physical violence and the sexual charges should not be placed in the same category. They should be dealt with separately. There will always be similarities when it comes to allegations of the present nature. There has to be some particular feature, something striking, which allows the Moorov test to be met. Mr Bryce noted certain differences in the accounts, including as to the frequency of the violence. There was a marked difference in the character of the conduct specified in charge 9 from anything spoken to by E. And the third complainer, J, made no complaint of sexual misconduct.
[4] For the Crown the advocate depute accepted that 24 years was a significant period. He confirmed that, to prove the sexual offences, Moorov had to be applied to the evidence of both E and F. To prove the charges of physical violence against E, it would be submitted that Moorov could be applied with regard to the evidence of the second and/or the third complainer. He stressed that the whole circumstances of the relationships between the accused and the three complainers should be taken into account. Everything that happened was part of a course of domestic abuse involving controlling behaviour, physical and sexual violence, and threats. The three relationships were defined by the accused’s jealousy, his possessiveness, and his need to control, which he exerted in a deliberate and systematic manner, all with the aim of getting what he wanted when he wanted it, with a total disregard for the wishes of his partners.
[5] The advocate depute confirmed that the sexual charges were now confined to the matters specified in charges 2, 3, 8, 9 and 13. Charge 9 related to the alleged “sleeping rapes” involving F. The other charges set out four separate incidents of anal rape, though in respect of charge 2 there was uncertainty as to whether it was anal or a vaginal violation. The other more general sexual charges were withdrawn because of the complainers’ testimony that they did not convey a lack of consent to the accused, but rather they gave him the impression that they were enjoying the sexual conduct. This had been explained by them in various ways, however the advocate depute took the view that the necessary mens rea of the accused in respect of the more general sexual charges could not be established. Nonetheless the jury could look at all of this as part of a general picture of a man who needed to get his own way with his partner.
[6] The advocate depute reviewed and discussed the decisions in a number of cases concerning long time gaps, some of which will be referred to later. He submitted that many of them could be distinguished in that the similarities in the present case are more compelling than in those cases where Moorov was not allowed, and also, he suggested, more compelling than in some cases where it was approved, for example in the case of AK v HM Advocate 2012 JC 74. With reference to the decision in Pringle v Service 2011 SCCR 97, the advocate depute submitted that the contrast is that here the charges do not relate to isolated incidents, but to ongoing systematic domestic abuse underpinned by sexual jealousy within three relationships. This demonstrates a deliberate course of conduct, not a mere propensity to commit a certain type of crime. As to PC Paton’s evidence, it was accepted that the Crown could not rely on a lack of opportunity of further offending as an explanation for, and as a means of closing the long time gap.
[7] Particular reliance was placed on the decision in AS v HM Advocate 2015 SCCR 62. It was accepted that the court recognised that it involved a “generational interval” in a case concerning the abuse of the accused’s son, his daughter, and then, 18 years later, his granddaughter; but the advocate depute submitted that this feature was not decisive, which I understood to mean, not necessary to the outcome. In the recent case of McAskill v HM Advocate [2016] HC JAC 64, a long time gap was “filled in” by reference to intervening offending, which was in reality part of the same course of conduct. That principle could be applied in the present case.
[8] The advocate depute set out what he contended were specific similarities in, firstly, the accused’s controlling behaviour towards the three complainers, all of which was motivated by sexual jealousy and possessiveness. He noted that the complainers spoke to these matters in similar terms; for example, not being allowed to speak to other people when watching the accused play in a band; having to keep their heads down; not go for a cigarette on their own; not being allowed to wear their clothes of choice; and not being permitted to wash when they chose, so that his smell remained upon them. Several other examples were mentioned, including isolation from family members, and rules and restrictions within the domestic setting. All of this, it was said, was underpinned by physical aggression and threats.
[9] The advocate depute summarised the evidence as to the various alleged incidents of physical violence; eight concerning E, seven for F, and five for J. There was a common theme of jealousy and control lying behind them, in that many of the assaults were prompted by false accusations of misbehaviour with others. It was noted that all three complainers spoke to at least one episode of compression of the neck.
[10] The same theme of jealousy, control and possessiveness underpinned the five sexual charges. They should be seen as part of the general picture of control of the complainers. In respect of charges 2, 3, 8 and 13 the complainers made it clear that they did not want the sex insisted upon by the accused. In the case of F, previously she had told the accused that anal sex was a “no go” area for her. The advocate depute summarised the evidence led in support of the sexual charges. In each case the wishes of the complainers were simply ignored. The accused was determined to get what he wanted. The advocate depute accepted that the “sleeping rapes” charge was materially different, but it all took place in the same context as part of the overall course of conduct.
[11] In summary the Crown position was that, despite the lengthy time gap, the similarities are so striking, so special, and so extraordinary, that there is a compelling picture which allows the jury to apply the Moorov doctrine.
[12] In a short reply Mr Bryce submitted that the features of the sexual conduct relied upon, namely ignoring the complainers’ wishes, and being determined to get what he wanted, are neither special nor extraordinary features of rape or indecent assault; rather they are of the essence of those offences. They cannot justify an application of Moorov. In the case of F, both occasions of anal sex followed upon vaginal intercourse and were more of an opportunistic character than part of a systematic course of conduct. The evidence as to the other sexual charges, now withdrawn, has no weight or value in respect of the matters now at hand. They were withdrawn because of concerns about consent and reasonable belief as to consent. Again it was stressed that the sexual and physical violence should be regarded separately. It is not appropriate simply to categorise it all as domestic abuse fuelled by jealousy and possessiveness. Violence was not an integral part of any of the sexual conduct. Finally the court was reminded that Moorov is being used to link events in the mid 1980’s with those in 2012/14.
Discussion and Decision
[13] It is clear that since its inception the Moorov doctrine, at least in its application, and certainly in respect of the time characteristic, has become somewhat attenuated. Nonetheless my impression is that the Crown approach in the present case involves something of a step change, even in the context of the more liberal approach adopted in recent years. Of course there are cases where long time gaps have been accommodated, and there are many when they have not. It is not easy to identify any concrete guidance beyond the occasionally expressed need, if the gap is to be bridged, for something “compelling”, “extraordinary”, “special”, or some equivalent epithet.
[14] In these circumstances it may be helpful to return to basic principles. I do not understand the Moorov doctrine to be designed to encroach in any fundamental way on the rule that there must be corroborative evidence as to both the fact that a crime was committed and that it was committed by the accused. Our law still adheres to this as a safeguard against errors being made on one or both of these matters. On the face of it the Moorov doctrine might seem to violate these requirements, in that there can be only one source of evidence pointing to event A, and another separate single source of evidence pointing to event B. However, so long as event A and event B can be identified as constituent elements of a single course of criminal conduct, then, if the evidence is accepted, each can corroborate the other and provide a sufficiency of evidence.
The point was put in simple terms by Lord Emslie in AK:
“Subject to its established limitations the Moorov principle is essentially straightforward: corroborative proof of a single course of criminal conduct may be achieved through the testimony of two or more individual victims of constituent offences”.
The classic example is the subornation of intended witnesses in respect of a particular criminal trial, though it now seems to have been supplanted by attempted match‑fixing. While the doctrine is not restricted to such confined circumstances, it is nonetheless subject to limits; and we have the benefit of a recent five judge decision in MR v HM Advocate 2013 JC 212, where the court said at paragraph 20:
“What the court is looking for are the conventional similarities in time, place and circumstances in the behaviour proved in terms of the libel … such as demonstrate that the individual incidents are component parts of one course of criminal conduct persistently pursued by the accused…”
[15] Even if one adopts the Crown’s approach that the relevant course of conduct here is that of alleged deliberate and systematic domestic abuse provoked by jealousy and possessiveness, that course of conduct took place from the second half of 1986 until early 1988, when E was involved, and then resumed in 2012 with F, and ended in the first half of 2014 with J. In other words, it consists of two relatively short periods separated by some 24 years. The Crown accepted that it could not rely on a lack of opportunity during that intervening period given the multiplicity of relationships which the accused had enjoyed.
[16] So how does the Crown suggest that Moorov can be applied? I think it does the advocate depute’s comprehensive and clear submissions no injustice by saying that, in essence, the answer to that question is simply this – yes there is a very long time gap, but the complainers all spoke of being controlled by a jealous abuser, therefore any conduct attributable to that is corroborated by any other offence similarly explained by another complainer. Thus the physical assaults can support the sexual allegations, and no doubt vice versa. I consider that proposition in itself to be controversial; the traditional view is that the similarities must relate to the alleged criminal conduct, not just to the motivation or mental element. It has been said that the crimes must be examples of the same crime in any reasonable sense of the term. In any event the answer does not resolve the problem posed by the 24 years. It might be thought that the recent decision in McAskill, albeit expressed in a short judgment, took at least a small step along the road suggested by the Crown. However, and as the advocate depute recognised, in that case the concept relied on by the Crown, or something like it, was being used to fill the time gap. Here there is no bridge. And I note that in KH v HM Advocate 2015 SCCR 242, the court rejected a similar submission by the Crown:
“The legal perspective has been to view rape as a significant and very serious offence, having a different quality from assaults, even serious assaults which lack an obvious sexual element”. (paragraph 35)
[17] In AS the generational nature of the abuse was clearly a key factor in the decision. In AK, as Lord Emslie observed, the facts were “quite exceptional” and unlikely to be repeated. Furthermore, if Moorov can be applied to the present circumstances, while of course every case depends on its own facts, in my view it would be difficult to avoid the conclusion that Pringle v Service was wrongly decided. I say all of this even before reminding myself that the rule in Moorov must be applied with caution, and this all the more so in the case of an attempt to link only two complainers’ evidence, even leaving aside the long time gap.
[18] In the course of the submissions I found myself wondering how I would answer a question from the jury along the lines of – how can we find one course of criminal conduct persistently or systematically pursued by the accused standing the evidence of PC Paton and the 24 years’ time gap? I have not come up with a straightforward answer that the jury might understand and be able to reconcile with the test for the application of Moorov.
[19] The advocate depute referred to a number of similarities in the complainers’ accounts. Without intending to diminish the seriousness of the matters described by the complainers, it is not clear to me that there is any feature so striking, unusual, or extraordinary, such as might justify the application of Moorov notwithstanding the long time interval. In any event there are a number of differences, in the complainers’ evidence. They include the “sleeping rapes”, which F said was a regular occurrence; material differences as to the frequency of violence; the absence of any sexual violence in the third complainer’s testimony; and F’s evidence, which was not replicated by E, that after every occasion when he was violent, and once he had calmed down, the accused wanted sex.
[20] It is clear that the court has the power to remove a Moorov case from the jury on an insufficiency of evidence based on an excessive time lapse. Reference can be made to Dodds v HM Advocate 2008 JC 8 at paragraphs 7/10 and to Cannell v HMA 2009 SCCR 207 at paragraph 31. I consider that this is such a case. On the basis of the long time gap, and for all the other reasons set out above, in my opinion the no case to answer submission is well founded. I shall therefore uphold it, and acquit the accused of charges 1,2, 3, 8, 9 and 13.