APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
Appeal No: XC343/03
OPINION OF THE COURT
delivered by THE LORD JUSTICE GENERAL
NOTE OF APPEAL AGAINST CONVICTION
JAMES ALFRED BEATTIE
HER MAJESTY'S ADVOCATE
Appellant: N Mackenzie; McClure Collins
Respondent:B McConnachie, A.D.; Crown Agent
21 January 2004 The appellant was convicted after trial in the High Court of three charges of lewd, indecent and libidinous practices and behaviour and two charges of shameless indecency. He was sentenced to six years imprisonment.  The charges which the jury were invited to consider, and on which they convicted the appellant were charges 1, 2, 3, 5 and 7. Charge 1 related to the conduct of the appellant towards a boy on an occasion when he was 5-7 years of age. Charges 2 and 5 related to his conduct towards two other boys on various occasions over a period of years prior to their respectively attaining14 years of age. Charges 3 and 7, which were the charges of shameless indecency, related to various occasions over periods after these two boys had attained 14 years of age.  The first ground of appeal is that the trial judge misdirected the jury. It is not in dispute that in order to achieve the conviction of the appellant in this case the Crown required to rely on the doctrine of mutual corroboration, for which the decision in Moorov v. H.M. Advocate 1930 JC 68 is the authority.  In his charge to the jury the trial judge directed them that a person could not be convicted of a crime unless there was evidence from more than one source pointing to his guilt. He then went on to say:
"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".
He then proceeded to give them directions as to their function in assessing the credibility and reliability of evidence. He also reminded them that he had removed from their consideration charges 4 and 6, which alleged attempted sodomy. He observed that this was
"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".
It does not appear that the trial judge returned to the question of what was required in order to apply the doctrine of mutual corroboration. For the appellant Mr. Mackenzie submitted that the trial judge had omitted to direct the jury in regard to essential parts of the Moorov doctrine. He had failed to direct them that they required to be satisfied that the actions of the appellant spoken to by two or more of the complainers were so connected in time, character and circumstances that they should infer that they formed parts of a single course of conduct. It was insufficient for him to direct the jury that there had to be "a consistent course of conduct". In this context Mr. Mackenzie referred to a well known passage in the Opinion of the Lord Justice General (Clyde) in Moorov v. H.M. Advocate at page 73, where he observed:
"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".
He went on to state, at pages 73-74:
"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".
It is important, we consider, to distinguish between whether certain charges are capable of being proved by reliance on the doctrine of mutual corroboration, and whether certain charges are so proved. The first is a question of law for the trial judge, as it was in the present case. However, as to the second, it was inevitably a matter for the jury to decide, whether or not the parties concentrated on the question of credibility when addressing them. The jury required to be adequately directed as to what required to be established before they could find the charges proved against the appellant. In the circumstances it is unnecessary for us to deal with the second ground of appeal which was concerned with the appellant's conviction of the charges of shameless indecency, in the light of the decision in Webster v. Dominick 2003 SCCR 525.  The Advocate depute invited the court to grant authority to the Crown to re-indict the appellant. We are satisfied that it is appropriate in the circumstances to grant that motion.  Accordingly, we quash the appellant's conviction of the charges, and grant warrant to re-indict.