Act: G Forbes, Advocate; Balfour + Manson LLP

Alt: Ogg, Q.C., A.D.; Crown Agent

29 April 2008

The background circumstances
[1] The appellant faced an indictment containing three charges. They were in the following terms:

"(1) on various occasions between 21 December 1987 and 20 December 1992, both dates inclusive, the exact dates being unknown, at 82 Barnbeth Road, Glasgow, on numerous occasions, you did assault AH, date of birth 21 December 1978, ... and did instruct him to remove his clothing, lie on a bed, ties his hands behind his back, and strike him repeatedly across the buttocks with a belt;

(2) on various occasions between 21 December 1987 and 20 December 1992, both dates inclusive, the exact dates being unknown, at 82 Barnbeth Road, Glasgow and at a wooded area at Barnbeth Road, Glasgow, on numerous occasions you did use lewd, indecent and libidinous practices and behaviour towards said AH, show him pornographic magazines, pornographic videos, induce him to handle your private member and to masturbate you to the emission of semen, touch his private member, masturbate him, induce him to perform oral sex on you, perform oral sex on him and did attempt to insert your private member into the hinder parts of the body of said AH; and

(3) between 1 January 1992 and 31 December 1992, both dates inclusive, the exact dates being unknown, at 82 Barnbeth Road, Glasgow and at a wooded area at 85 Barnbeth Road, Glasgow and Barnbeth Road, Glasgow, on numerous occasions, you did use lewd, indecent and libidinous practices and behaviour towards JH ... and did instruct her to remove her clothing, remove your own clothing and did cause her to lie on top of you and you did simulate sexual intercourse with her."

The appellant was convicted after trial on charge (1), as libelled; on charge (2) under deletion of the words "show him pornographic magazines, pornographic videos,"; and on charge (3), as libelled. At the time when the offences in respect of the first complainer were said to have commenced, the appellant was aged 14 years of age and the first complainer 9 years. At the time when the offences in respect of the second complainer was said to have commenced, the appellant was aged 18 years and the second complainer 8 years of age. At the trial, the Crown led evidence from the first complainer, his present partner, and from the second complainer. Following the completion of the Crown's case, a submission of no case to answer was made, but repelled. Thereafter the appellant himself gave evidence, as did several witnesses led on his behalf.

[2] The evidence in the case is summarised by the sheriff in her report to this court. The first complainer at the material time lived near to the appellant's family house at 82 Barnbeth Road, Glasgow, with both his parents, his elder brothers and his younger sister, the second complainer. He got to know the appellant through playing football with him and others. The first complainer remembered being invited into the appellant's house by the appellant to play with a new computer console. On the first occasion when such an invitation was issued, this complainer refused. On the second occasion he accepted. The appellant took this complainer to his bedroom. There they played games on the console which was linked to a television set in the bedroom. As this complainer continued to play, the appellant had left the room for a few minutes. When he returned into the room he was naked. The appellant had told this complainer to take his clothes off. He complied. Having ordered this complainer to lie face down on his bed and put his hands behind his back, the appellant tied the complainer's hands together and then his ankles together. He then had whipped the complainer on his buttocks with a leather belt. The appellant had then untied the complainer, forced him to put his hands between the appellant's legs and told him to masturbate him. The appellant had put the complainer's hands on his, the appellant's penis. This complainer testified that the appellant's penis was erect and that he had masturbated him and that the appellant had ejaculated. When these actions had been completed, this complainer said that he had got dressed and gone home. The same thing had happened several times over a period over the next four to five years. The incidents had taken place mainly in the appellant's family home in his bedroom, with the only persons being present in the house being this complainer and the appellant. This complainer said that the appellant had given him money, sweets, games and other things. A routine had been developed. The appellant had told this complainer to tie him up; sometimes the appellant had worn ladies' stockings. Sometimes the appellant had wanted to be masturbated while he was tied up. Matters had progressed to oral sex, which had been mutual. As this complainer had got older, the appellant had made him perform anal sex on him as well. This complainer had been too scared to tell either his parents, or the police, or a school teacher. Eventually this complainer had made a statement to police officers, having revealed what had happened to him to his partner. This complainer also described certain things which had happened to him in the wooded area referred to in charge (2). This complainer said that he had been stripped naked, tied to a tree and "battered" by the appellant. That had happened when he was 9 or 10 years of age.

[3] The second complainer had been brought up with the first complainer close to the appellant's family home. The appellant had been a lot older than her and had been friendly with her brother. She described in evidence a den in the wooded area referred to in charges (2) and (3). She testified that she had been there alone with the appellant when he had been "touching" her. She remembered it, he had made her touch him on his private parts. Such behaviour on the part of the appellant had also occurred in his house once or twice. This complainer had been invited to the house by the appellant where they had gone to his bedroom. There was no one else there. The appellant had asked her to lie on his bed beside him while he was unclothed. The appellant had asked her to remove her clothing, which she had done. She was unable to remember exactly what had happened in the bed. On two occasions, the appellant had touched her in the livingroom of his family house when no one else was in the house.

The grounds of appeal
[4] The appellant has now appealed against the foregoing convictions on the following grounds:

"1. There was insufficient evidence in relation to charge 1. There was no corroboration of the complainer's evidence on this charge, and in particular no corroborated evidence to establish the necessary mens rea for the crime of assault. The sheriff erred in rejecting a submission of no case to answer.

2. The sheriff misdirected the jury in relation to charge 1. She erred in directing the jury that they could use the evidence of the complainer in charge 3 (a charge of lewd and libidinous practices) to corroborate the evidence of the complainer in charge 1 (a charge of assault).

3. There was insufficient evidence to entitle the jury to convict the appellant of charges 2 and 3. The sheriff erred in rejecting a submission of no case to answer. The conduct spoken to in relation to each of these charges was significantly different, the sex of the complainer in each was different, and in the whole circumstances the sheriff erred in holding that there was sufficient similarity to allow the jury to apply the Moorov doctrine.

4. Esto there was sufficient evidence to justify a conviction on charges 2 and 3, there was insufficient evidence to justify conviction on these charges as libelled. In particular there was no evidence of attempted anal penetration in relation to charge 2, and no evidence of simulated sexual intercourse in relation to charge 3."

Submissions of the appellant
[5] After having explained the foregoing background to the court, counsel moved us to quash the three convictions upon the basis that there was insufficient evidence to support them. In particular, the Moorov doctrine could not be applied as between charge (3) and either of the other two charges. As a secondary position, he moved the court to quash the convictions on charges (2) and (3) and substitute for them convictions under deletion of certain words. The words to be deleted from the conviction on charge (2) were:

"and did attempt to insert your private member into the hinder parts of the body of said AH;".

The conviction on charge (3) should be under deletion of the words:

"and you did simulate sexual intercourse with her."

It was a matter of agreement between counsel for the appellant and the Advocate depute that these deletions ought to be made, since, in her report to this court, the sheriff had stated that there was no evidence to support those parts of those charges.

[6] Counsel submitted that as between the charges (1) and (3) and charges (2) and (3) there was insufficient similarity to justify the application of the Moorov doctrine. He then proceeded to summarise the evidence, to which we have referred, from the sheriff's report. Charge (1) was quite simply a charge of assault, whereas charge (3) was one of lewd, indecent and libidinous practices and behaviour. So far as charge (2) was concerned, that also was a charge of lewd, indecent and libidinous practices and behaviour which involved overt stimulation of the private parts of both participants. However, charge (3) involved no such activity. All that was involved was the appellant lying on a bed naked with the second complainer. Furthermore, it was submitted that there was no evidence of the appellant causing the second complainer to lie on top of him. While the second complainer had referred to the appellant touching her in various circumstances, it was not open to the jury to use that evidence, since there were no averments in charge (3) to that effect. In this connection reference was made to the description of the rule in Moorov in Renton & Brown, Criminal Procedure 6^th ed., para.24.87.

Submissions of the Crown
[7] The Advocate depute began by reminding the court of the terms of section 96 of the Criminal Procedure (Scotland) Act 1995. Evidence had been led without objection in relation to the second complainer, which went beyond the terms of charge (3) of the indictment. An amendment to the indictment could have been made, although that was not in fact done. The evidence relating to the matters in question had been properly before the jury and could be taken into account by them, although any conviction in terms of charge (3) had to be in terms of that charge as it stood.

[8] In examining the application of the Moorov doctrine to the circumstances of the present case, the Advocate depute submitted that the court should look at the similarities that existed between the relevant charges. It was such similarities that could be the basis for the application of the doctrine. He then listed these similarities. In the first place, both of the complainers had been pre-pubescent children at the material time. Secondly, both complainers were siblings and had lived in family as close neighbours of the appellant. Thirdly, certain of the offending activity had occurred in the appellant's bedroom in his house when he and the complainers were alone there with him. Fourthly, otherwise the offending had occurred in a den in a wooded area nearby. Fifthly, it was quite plain that the offending was of an indecent nature. Charge (1), although charged as an assault, was plainly an indecent assault since the first complainer had been caused to remove his clothing. In any event, while charges (1) and (2) were separate, since they involved different offences, in reality the actings complained of in both of the charges had taken place on the same occasion in some instances. So far as charge (3) was concerned, it was plain that the conduct there involved was indecent. Sixthly, there had been a close association in time as between the relevant offences. Indeed there was, to some extent, an overlap of time. The court could ask itself the question of whether there were dissimilarities as between the relevant charges which undermined the evident similarities. If that question were asked, the answer would be that there were no significant dissimilarities. The fact that the complainers were of different gender was not important. It was evident from the nature of the conduct referred to in the relevant charges that the appellant had been pursuing a purpose of obtaining sexual gratification from the abuse of young children. The fact that the crime charged in charge (1) was different from the crimes charged in charges (2) and (3) was immaterial. In this connection reference was made to the observations of Lord Sands in Moorov v His Majesty's Advocate 1930 J.C. 68, at page 91. The nomen iuris involved was not important. In this same connection reliance was placed upon P v Her Majesty's Advocate 1991 S.C.C.R. 933 at page 935; McMahon v Her Majesty's Advocate 1996 S.L.T. 1139 and Carpenter v Hamilton 1994 S.C.C.R. 108.

The decision
[9] The principal issue in this appeal is whether the Moorov doctrine can properly be applied between each of charges (1) and (2), spoken to in evidence by the first complainer and charge (3), spoken to by the second complainer. While charge (1) is a charge of assault, in our opinion, it is quite plain that it requires to be seen as an indecent assault. That quality can properly be inferred, in our view, from the fact that the first complainer was assaulted while naked, lying on a bed and with his hands tied behind his back. He was repeatedly struck across the buttocks with a belt. Although the charge is one of assault, in our view, if the circumstances are otherwise appropriate, such an offence may be used to supply mutual corroboration in terms of the Moorov doctrine in relation to a charge of lewd, indecent and libidinous practices and behaviour, simply because of the indecent character of the assault. Putting the matter in another way, the fact that the nomen iuris of the crime in charge (1) differs from that of the crimes charges in charges (2) and (3) does not, of itself, prevent the application of the Moorov doctrine. In this connection we refer to P v Her Majesty's Advocate and McMahon v Her Majesty's Advocate. Accordingly the question here is whether the offences charges in charges (1) and (2) can be corroborated by the evidence relating to the offence involved in charge (3). That depends on whether there exists a sufficiently close link in time, character and circumstances as to demonstrate that each offence may be seen as an element in a single course of criminal conduct. In our opinion, there is such a relationship. In the matter of time there is plainly a close relationship between the relevant charges; indeed, there is a significant overlap in the periods of time involved. As regards the character and circumstances of the offences, likewise we consider that there is a close relationship between them. In this connection we were impressed by the factors relied upon by the Advocate depute in his submissions to us. Both the complainers were pre-pubescent children at the material time. They were siblings and both lived in family as neighbours of the appellant. The offending occurred in relation to each complainer in the appellant's bedroom in the house where he lived when he and the complainers were alone. Otherwise the offending occurred in the nearby wooded area. All of the offending involved in all of the three charges was plainly, in our opinion, of an indecent nature, associated with the removal of the clothes of the complainer. In all the circumstances we are satisfied that there was the necessary close relationship in time, character and circumstances between the offences libelled in charges (1) and (2) and that libelled in charge (3). Accordingly we consider that the sheriff was entitled to repel the motion of no case to answer and entitled to direct the jury that it was open to them to apply the Moorov doctrine as between each of charges (1) and (2) and charge (3). Furthermore, the jury were entitled in fact to apply the doctrine in that way. It follows that the primary contention of the appellant must be rejected.

[10] Before us there was some discussion of the significance of the fact that during the course of her evidence, the second complainer gave evidence of lewd behaviour towards her on the part of the appellant going beyond what had been averred in charge (3). Surprisingly, the questions eliciting this evidence were not the subject of objection on behalf of the appellant. The consequence was that the evidence was led before the jury and was available to them for their consideration. Plainly the jury would not have been entitled to hold the facts spoken to in that evidence proved, nor did they attempt to do so. In these circumstances, we do not consider that the mere fact that that evidence was led, without objection, in any way undermines the validity of the convictions which the jury did return.

[11] It was a matter of agreement before us, based upon the sheriff's observations in her report to us, that certain parts of the averments in charges (2) and (3), which the jury held proved, had not been supported by any evidence. It is thus inevitable that the averments concerned must be deleted from the terms of the charges on which the appellant was convicted.

[12] In the whole circumstances we shall allow the appeal in relation to charges (2) and (3) only, but only to the extent of quashing the parts of those charges which were not supported by any evidence. In the case of charge (2) the words concerned are:

"and did attempt to insert your private member into the hinder parts of the body of said AH."

and in the case of charge (3) the words:

"and you did simulate sexual intercourse with her".

[13] It was not contended that these deletions would have any impact on the sentence imposed on the appellant.