Scottish High Court of Justiciary Decisons

"There is however in this case, ladies and gentlemen, an added complication which I will return to but by the law of Scotland in this particular type of case where the Advocate depute said to you it is unlikely there are eye witnesses other than the participants, the law of Scotland will permit the doctrine of mutual corroboration if there is established to your satisfaction a course of criminal conduct which has been contributed to or caused by the accused involving more than one person, i.e. a minimum of two. This is very important in this case when I come to address you as to how you can approach the matter. But that is what is known as the doctrine of mutual corroboration which can exist by using two separate witnesses' single testimony into the combined cable if you like of guilt because there is a consistent course of conduct and that is the line which the Crown takes in this case as the Advocate depute put to you but I will come back to it again in a moment".

"a useful example of how the mutual corroboration of doctrine works, the reason I did that was that while the witness [J] did effectively give evidence to you that would conform to what is averred or stated in charge 6, the witness [D] did not. He denied the context. That being so, the two witnesses are not at one on the separate charge which is a separate crime from the others charged. That being so, as a matter of law there is not sufficient evidence whether you accept it or not for you to convict on those two charges and that is why I removed them".

"Before the evidence of single credible witnesses to separate acts can provide material for mutual corroboration, the connexion between the separate acts (indicated by their external relation in time, character or circumstance) must be such as to exhibit them as subordinates in some particular and ascertained unity of intent, project, campaign, or adventure, which lies beyond or behind - but is related to - the separate acts".

"It is just here, however, that the pinch comes, in such a case as the present. The Lord Advocate spoke as if it would be enough to show from the evidence of the single witnesses that the separate acts had occurred in what he called 'a course of criminal conduct'. Risk of confusion lurks behind a phrase of that kind; for it might correctly enough be applied to the everyday class of case in which a criminal recurs from time to time to the commission of the same kind of offence in similar circumstances. It might be justly said, in relation to the evidence in support of any indictment in which a number of such similar crimes committed over a period of (say) three years are charged together, that the accused had been following 'a course of criminal conduct'. If any of the crimes in the series had formed the subject of a former prosecution or prosecutions, and convictions had been obtained, neither the commission of such former crimes nor the previous convictions could afford any material for corroborating the evidence of a single witness in support of the last member of the series. And therefore - especially in view of the growing practice of accumulating charges in one indictment - it is of the utmost importance to the interests of justice that the 'course of criminal conduct' must be shown to be one which not only consists of a series of offences, the same in kind, committed under similar circumstances, or in a common locus - these are after all no more than external resemblances - but which owes its source and development to some underlying circumstance or state of fact such as I have endeavoured, though necessarily in very general terms, to define".

"by reason of the fact that counsel for the defence invited me to remove the charges of attempted sodomy precisely because they did not fit the doctrine while the other charges did. Thus the case was presented to the jury by both sides on the basis that the only issue was the credibility of the complainers".