Appellant: Paterson, Solicitor Advocate; Paterson Bell, Kirkcaldy

Respondent: Young, Q.C., A.D.; Crown Agent

2 November 2010

[1] The appellant was convicted after trial of having committed in his youth various sexual crimes of which his two sisters, FM and CM, were the victims. These included the rape of FM on various occasions between 1968 and 1976, when she was between the ages of 4 and 12, and the attempted rape of CM on various occasions between 1972 and 1978, when she was between the ages of 4 and 10. The charge in respect of CM had originally been one of rape, but before addressing the jury the Advocate depute, with the leave of the court, restricted that charge to one of attempted rape. That was against the circumstance that in evidence CM was unable to say that penetration of her vagina had actually taken place. She spoke to repeated acts of the appellant's penis having been rubbed against her vagina, of his apparently trying to penetrate her vagina with it and of not being sure whether he had ever in fact effected penetration. If there had been any penetration, it would have been very slight. What he would do, she said, was to rub his penis against her vagina and ejaculate on her stomach.

[2] For corroboration of the rape and of the attempted rape charges, the Crown relied on the doctrine of mutual corroboration. There was ample evidence of the external factors of similarity of time, place and circumstance required for the application of the doctrine: the ages of the girls at the relative times were similar and the periods of the offences overlapped, they all occurred in the family home and were committed by a brother on his two sisters. The only issue arising in this appeal is whether the conduct in relation to CM (in law, attempted rape) was incapable of corroborating FM's evidence of rape of her, she having spoken to having on repeated occasions been penetrated vaginally.

[3] Mr Paterson, who appeared for the appellant, acknowledged that authority was against him. In PM v Jessop 1989 SCCR 324 the appellant was convicted of attempted sodomy on an 11 year-old boy and of sodomy of an 8 year-old boy; the boys were brothers and the appellant their cousin. It was submitted that the evidence of one of the boys of attempted sodomy of him was incapable of affording corroboration of the evidence of the other boy speaking to a completed act of sodomy. That submission was roundly rejected by a court presided over by Lord Justice General Emslie. He said at page 325:

"In our judgment the crimes of sodomy and attempted sodomy can hardly be distinguished in character or gravity. They are so closely related to each other that we have no doubt whatever that evidence about an attempted act may be prayed in aid in corroboration of evidence of the completed act of sodomy."

[4] Although the gender of the victims was different and one concerned penetration and attempted penetration of the anus and the other penetration and attempted penetration of the vagina, Mr Paterson accepted that, in the case of child victims, these differences were not material. He invited us to convene a larger court to reconsider PM v Jessop. He was, however, unable to point to any authority which casts doubt on the soundness of that decision; nor could he demonstrate any flaw in its rationale. He accepted that, in so far as the law had developed since 1989, it had, at least in the case of child victims, tended to extend rather than to restrict the Moorov doctrine; see P v HM Advocate 1991 SCCR 933, McMahon v HM Advocate 1996 SLT 1139 and B v HM Advocate 2009 SCCR 106.

[5] We declined to remit the case to a larger court. The decision in P v HM Advocate appears to us to be clearly sound and in point. We accordingly refused the appeal, intimating that we would give our reasons later. The need for a written judgment arises only from the circumstance that the trial judge appears to have entertained a doubt on the matter. He refers in his report to an unnamed case in which he understood that in similar circumstances the Crown had conceded in an appeal that evidence of an attempt could not corroborate evidence of a completed act. The case referred to has not been traced and we are accordingly unable to comment on it. The Advocate depute, who resisted the appeal, assured us that the Crown's position was that, in circumstances such as the present, evidence of attempted rape could corroborate evidence of rape. That is clearly correct.