APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Mackay of Drumadoon Lord Bonomy Lady Dorrian IB and LD Third time lucky? The revisals of significance begin in Para [13] M of D	[2010] HCJAC INFO127 Appeal No: XJ560/10 OPINION OF THE COURT delivered by LORD MACKAY OF DRUMADOON in STATED CASE by JOHN MURRAY PRINGLE Appellant; against PROCURATOR FISCAL, DUMBARTON Respondent: _______

Appellant: Ogg, Solicitor-Advocate; Livingstone Brown

Respondent: Di Emidio, A.D.; Crown Agent

10 December 2010

Introduction

[1] On 18 February 2010 the appellant was convicted after trial at Dumbarton Sheriff Court of three charges of indecent assault, which were charges 1, 2 and 4 on the complaint against him. During the trial the appellant was acquitted of the other charges he faced, charges 3 and 5. The terms of the charges of which the appellant was convicted were:

"(001) on one occasion between 1 August 1973 and 30 June 1975, both dates inclusive, exact date to the Prosecutor unknown at a caravan then owned by you at Arrochar Caravan Park, Arrochar you JOHN MURRAY PRINGLE did while acting in your capacity as a school teacher at ... Bishopbriggs Academy, Bishopbriggs assault (MK), ... then aged between 14 and 16 years of age, c/o Strathclyde Police, Clydebank in an indecent manner and did press your erect private member against his back.

(002) on one occasion between 1 March 1963 and 1 July 1964 both dates inclusive, exact date to the Prosecutor unknown, at a tent in a field on the island of Iona you JOHN MURRAY PRINGLE did while acting in your capacity of school teacher at ... Bishopbriggs Academy, Bishopbriggs assault (AM), ... then aged between 14 and 15 years, c/o Strathclyde Police, Clydebank in an indecent manner and did unzip his sleeping bag, pull down his underpants, press your erect private member against his hinder parts and did handle his private member and did masturbate him.

(004) on one occasion between 1 August 1976 and 30 June 1978 both dates inclusive, exact date to the Prosecutor unknown at a caravan owned by you at Arrochar Caravan Park, Arrochar you JOHN MURRAY PRINGLE did while acting in your capacity as a school teacher at ... in Bishopbriggs Academy, Bishopbriggs assault (JC), ... then aged between 14 and 15 years, c/o Strathclyde Police Clydebank in an indecent manner and did place his hand on your erect private member and place your hand on his private member."

[2] TAfter convicting the appellant on 18 February 2010 the Sheriff imposed a cumulo sentence of twelve months imprisonment in respect of all three charges, and . The Sheriff ordered that sentence should commence on the expiry of other sentences which the appellant was currently serving.

[3] This being an appeal by way of Stated Case the Sheriff has set out the facts he foundheld admitted or proved on the basis of the evidence before him. During the hearing of this appeal, the counsel submissions of counsel' included some some reference to the particular circumstances of the individual charges of which the appellant was convicted. For that reason it is appropriate to set out the Sheriff's findings in fact in full. They were as follows:

"1. At all material times the Appellant was a teacher at ... (s)Bishopbriggs High School. In addition to teaching French within the academic curriculum during normal school hours, the Appellant ran an after-school film club, and an after-school sex education class for boys only. AM attended both the film club and the sex education class. JC attended the film club. The Appellant befriended pupils at the school.

2. The Appellant also organised weekend trips, at times with some frequency, including 'outward bound' trips, for boys attending the school. He would select boys from the school to go on these trips, either by inviting those interested to put their names on a list, and then making the selection from the list or by way of unsolicited invitation. Some of these trips were to a caravan owned by the Appellant and kept by him at Arrochar. Others were camping trips.

3. On an occasion between 1^st March 1963 and 1^st July 1964, both dates inclusive, during either the summer school term of 1963 or the summer school term of 1964 the Appellant selected the Complainer in Charge 2, AM, and his friend JW, both pupils at ... (s)Bishopbriggs High School, to go on a camping trip to Oban and Iona. AM was either 14 or 15 years of age at the time. AM had previously been on an outward bound trip with the Appellant, to Callander, during a summer school term. In addition to AM, two other pupils from the school and the Appellant, who was the only adult present, had been on that earlier trip.

4. On the occasion in question, the Appellant, AM and J W travelled on a Friday afternoon by bus to Oban from Glasgow. They had two tents with them. The Appellant had provided the tents and other equipment for the weekend. They each had a haversack, and each carried some of the equipment. The Appellant was the only adult on the trip. The appellant decided who was to sleep in which tent. On the Friday night in Oban AM slept in a different tent from the Appellant. On the Saturday morning they did some sightseeing in Oban, and then travelled to the island of Iona, by way of a ferry trip to Tobermory, a bus to the other end of Mull, and another ferry trip to Iona.

5. They erected two tents in a field a short distance from Iona Abbey. They made and ate an evening meal, and then went for a short walk, following which they had a cup of tea and retired to bed.

6. The Appellant arranged that AM would that night sleep in a tent occupied by him, the appellant, with JW occupying the other tent. They slept in sleeping bags supplied by the Appellant. There was no one else other than the Appellant and AM in the Appellant's tent. AM wore underpants and a vest to sleep in. He quickly fell asleep.

7. At around daybreak AM was woken by his sleeping bag being opened up by the Appellant. He then felt the Appellant's hand sliding over his right hand hip, and going under his underpants. The Appellant's head was over the right shoulder of AM, and he was breathing heavily. AM could smell his breath. The Appellant then pulled AM's underpants down and began to handle his penis. When AM's penis was erect, the Appellant was masturbating it. At the same time the Appellant was pressing his own erect penis against AM's bottom. The Appellant was moving his penis in and out against AM's bottom, as though trying to insert it into his rectum. This continued for about two minutes. AM was not a willing participant.

8. AM was shocked at this. He did not fully appreciate what was happening to him. He grabbed his sleeping bag and left the tent quickly. He wrapped the sleeping bag around himself and sat against a nearby wall, on his own. He felt terrible. He did not understand what had happened, and wanted to go home. He felt frightened.

9. About twenty minutes later the Appellant, who then appeared quite calm, approached AM and offered to make him a cup of tea. AM said to the Appellant and to Jim Wood that he wanted to go home. They visited Iona Abbey, and returned to Glasgow, via Mull and Oban, that evening.

10. During the return bus trip on Mull AM and his friend sat on the back seat. At one point the Appellant approached AM and said in a threatening manner, 'You won't be telling anyone what happened in the tent.'. When he said this he was staring at AM in a manner which AM found frightening.

11. On an occasion between 1^st August 1973 and 30^th June 1975, both dates inclusive, the Appellant invited the Complainer in Charge 1, MK, a pupil at ... (s) Bishopbriggs High School, who was then 14 or 15 years of age, to go on a trip to the Appellant's caravan at Arrochar. Three other boys from the school also went on the trip. MK had been on a previous trip to the caravan. On the occasion in question they travelled to the caravan after school on a Friday. The Appellant was the only adult present during the trip.

12. The caravan had one separate bedroom with a double bed in it. Beds were also made up in the living room area of the caravan, and there were, in addition, some small bunk beds. Nothing untoward occurred on the Friday evening or during the night.

13. On the Saturday they all had breakfast, and then climbed a mountain known as 'The Cobbler', following which they returned to the caravan. On the Saturday evening they had a meal provided by the appellant, and everybody was taking alcohol, which again was provided by the Appellant. MK was drinking brandy and became intoxicated.

14. At the end of the evening he went to bed in the separate bedroom within the caravan, where he shared the double bed with one of the other boys. He went to bed wearing only underpants, and slept in a thin sleeping bag provided by the Appellant. MK slept on the side of the bed furthest from the door to the bedroom. The other occupant of the bed slept on the side nearest the door. The other occupant of the bed slept on the side nearest the door. The other occupant felt asleep, but MK remained awake.

15. The Appellant climbed into the bed between MK and the other occupant. MK was lying on his side facing the wall. He heard the Appellant coming in to the room, and turned his head and saw him. The Appellant lay down on his side behind MK.

16. The Appellant placed his hands on MK's shoulders. He spoke to MK, paying him compliments, such as telling him what a 'great guy' he was, and how nice and handsome he was. The Appellant proceeded to press his erect penis into MK's lower back, above his bottom. The Appellant was moving his erect penis backwards and forwards against MK's body in motion simulating sexual intercourse. He did this through a very lightweight thin nylon sleeping bag.

17. After some minutes MK told the Appellant to go away. He did so.

18. The other occupant of the bed remained asleep during the whole time that the Appellant was in the bed.

19. MK was not a willing participant. He felt disturbed by the incident.

20. When MK woke in the morning, the Appellant acted as though nothing had happened, and did not speak to MK.

21. On one occasion between 1^st August 1976 and 30^th June 1978, both dates inclusive, the Appellant took JC, a pupil at ... (s)choolBishopbriggs High School, who was then 14 or 15 years of age, on a trip to the Appellant's caravan at Arrochar. He had been selected by the Appellant to go on a previous trip, which was uneventful, and during which the participants on the trip climbed a mountain, and went out in a speedboat and in canoes.

22. On the second occasion, the occasion in question, JC asked the Appellant to include him in the trip. JC travelled on a Friday afternoon after school by bus from Glasgow to Arrochar. He travelled alone, understanding that he was to meet other male pupils from the school at Arrochar. When he arrived only the appellant was there.

23. During the evening the Appellant and JC were listening to music and drinking alcohol provided by the Appellant. JC was intoxicated.

24. At some later point JC went to the end of bedroom in the caravan, to sleep in the double bed there. He took his clothes off brushed his teeth, and went to bed.

25. Sometime later the Appellant came into the bed and lay down beside JC, underneath the bed covers. He commenced a discussion with JC about sex education. JC was at the time small for his age, and had concerns about the small size of his genitals. That matter became a topic of conversation. Whilst uttering reassuring words about that matter, the Appellant reached over and handled JC's penis. At the time they were both lying on their backs. (JC) had his hands at his sides. The Appellant took one of JC's hands and placed it on his own erect penis.

26. JC thought that this was all wrong. He was not a willing participant. After about fifteen or twenty seconds he pulled his hand away from the Appellant's erect penis, made an excuse to the Appellant that he could not sleep with anybody else in the bed, got out of the bed and left the caravan. He went round the back of the caravan to a shed, which was used for storage of shoes and boots and coats, and which had a refrigerator and a shower in it. A few minutes later the Appellant entered the shed, where he, in the words of the Complainer, ranted and raved at JC. The Appellant was angry. He threw an egg at JC, and said 'Don't do that to me again.'. The Appellant then returned to the caravan again.

27. JC waited for a few minutes in the shed, and the ten returned to the back bedroom in the caravan, where he went to bed and to sleep. He felt disturbed about what had happened to him.

28. The following morning the Appellant behaved towards JC as though nothing had happened. He never mentioned the incident. That morning other boys from the school arrived. Together they all cliaimbed a mountain, and tried to take a speedboat out. MKJC returned home with two other boys."

[4] At the conclusion of the Crown case the appellant made a submission of no case to answer in respect of charges 1, 2, 4 and 5 on the complaint. It was advancedrgued first in relation to charge 2. After hearing the Sheriff heard submissions from the solicitor for the appellant and the respondent, the Sheriff refused the submission of no case to answer was refused by the Sheriff in respect of that charge2. The solicitor for the appellant then indicated that he was not advancing any further arguments in respect of charges 1 and 4 and the submission was refused in respect of those charges. Charge 3 was not insisted upon and However, the submission was not resisted by the respondent in respect of charge 5; the Sheriff accordingly acquitted the appellant on charges 3 and 5.. No defence evidence was led. After hearing further submissions on behalf of the respondent and the appellant and the respondent the Sheriff convicted the appellant on charges 1, 2 and 4.

[5] The application for a Stated Case on behalf of the appellant indicated that a number of matters were desired to be brought under review. They included:

"1. That the learned Sheriff erred in holding that he could apply the Moorov doctrine between charges 1, 2 and 4. That he erred in holding the similarities between the charges were 'striking'. More specifically:-

(a) that the learned Sheriff erred in repelling a no case to answer submission at the conclusion of the Crown case.

... It is submitted that the learned Sheriff erred in repelling the no case to answer submission in respect of charge 2, more specifically it is submitted that charge 2 is too remote in time from either charges 1 or 4 to allow the application of the doctrine. Esto the absence of a nexus in time is not fatal to the application of the doctrine to this charge, it is submitted that the cumulative effect of the said absence of a nexus in time and the material differences in the circumstances of charge 2 to both the remaining charges mean that the doctrine could not be applied."

Although the application for a Stated Case referred to other matters which the appellant sought to bring under review, leave was only granted to argue the issue raised in para 1(a). In particular, leave was refused to argue that the Sheriff has erred in applying the Moorov doctrine as between charges 1 and 4.

Submissions for appellant
[6] Miss Ogg for the appellant explained that the appeal against the appellant's conviction on charge 2 was founded on the lengthpassage of time which had elapsed between the period within the dates libelled in charge 2, namely 1 March 1963 and 1 July 1964, and each of the periods within the dates libelled in charge 1, s 1 and 4,namely 1 respectively between 1 August 1973 and 30 June 1975, and charge 4, namely between 1 August 1976 and 30 June 1978.. During the course of a well presented submission, Miss Ogg argued that the time that the passagepassage of time between the period libelled in charge 2 on the one hand and the periods libelled in charges 1 and 4 on the other had been such as to exclude the application of the Moorov doctrine to charge 2. During her submissions, she referred to a number of authorities: Ogg v HMA 1938 JC 152; McHardy v HMA 1982 SCCR 582, Tudhope v Hazelton 1984 SCCR 455, Dodds v HMA 2002 SCCR. 838, Sinder v HMA 2003 SCCR. 271, and Hussain v HMA 2010 SCCR 124. She also indicated that she had been unable to find any case in which the Moorov doctrine had been applied to charges separated by a passagepassage of time as long as those in the present case.

[7] Miss Ogg submitted that, whenre the passage of time between individual charges was substantial, a court could reach the conclusionreach the view that the Moorov doctrine should not be applied on that ground alone, whatever the similarity betweenin the character of the charges and circumstances of the conduct of the accused in the individual charges. In support of that submission she focussed, in particular, on what was said by Lord Justice Clerk Aitchison in Ogg v HMA at 157-158:

"I come now to the main question which the appeal raises, viz., whether, taking the four offences of which the appellant was found guilty, each offence can be taken as corroborating, or as tending to corroborate, each of the others. The evidence of the offences of which the appellant was acquitted must be left out of account. All four offences were sexual in character and were instances of sex perversion. In each case the victim of the offence was a stranger; in each case he was accosted by the appellant. The question is whether these similarities in character and circumstances are sufficient to allow the law of Moorov to be applied. Moorov is as decision of the highest authority by a Court of seven judges which authoritatively laid down the general proposition in relation to sexual crimes, although not entirely limited to such crimes, that similar sexual crimes, each deponed to by a single credible witness may afford mutual corroboration, provided always that they are so inter-related by character, circumstances and time - the presence of all these features is not essential - as to justify an inference that they are instances of a course of criminal conduct systematically pursued by the accused person. That is a most valuable doctrine of our criminal law, and nothing to be said in this case is to read as in any way whittling down that doctrine or impugning the authority of Moorov's case, even if it were in the power of this Court to impugn the authority of that case. The only question is - Is there a sufficient basis of fact for the application of the doctrine of Moorov in this case?

Whether one offence can be used in proof of another depends in every case upon whether it is relevant to proof of that other. The only test is relevancy. In some cases inter-relation is plain and no difficulty arises. Forgery of a will may be relevant to a charge of murder, or the theft of a motor car to a charge of bank robbery. The difficulty arises where the inter-relation is not direct and obvious, and the question must depend upon the circumstances of the individual case. Where the inter-relation is sought between similar offences as in this case, it must be possible to say that there is not only a series of separate similar offences, but that there is a reasonable and practical certainty, based not on conjecture or suspicion, nor a mere mortal certainty, that the similar offences are instances of one course of criminal conduct persistently pursued by the accused person. In deciding such a question the relation of the offences in time is a most material consideration. If the intervals of time between the offences are substantial, an inference of their inter-relation becomes difficult and, as a matter of evidence, may be impossible to draw.

...

As I have said, the doctrine of Moorov is a valuable doctrine, but it must be applied with great caution. If it is not applied with caution there is a danger that evidence showing a general disposition to commit some kind of offence might be treated as corroboration. That must always be guarded against, and the doctrine ought not to be applied unless inter-relation of the similar offences in some substantial sense can be with certainty affirmed."

[8] Miss Ogg also referred to McHardy v HMA in which the Court held that an interruption of four and a half years had been fatal to the application of the doctrine to two charges of lewd, indecent and libidinous practices. In reaching that conclusion the Court had acknowledged that no specific period of interruption can be laid down as the maximum beyond which the doctrine cannot be invoked. However, it had reached the conclusion that the interruption in time between the two charges in that case had been fatal to the satisfaction of the condition of correlation ofin time, place, circumstance and method indicative of a course of criminal conductthat required to be satisfied Sinder v HMA was another case involving charges of lewd, indecent and libidinous behaviour in which the Court had held that having regard to the intervals of time, around four years, between one charge involving one complainer and two other charges involving a second complainer, and the circumstances of the charges, the Moorov doctrine could have no application.

[9] During her submissions, Miss Ogg very properly addressed the Court on the recently reported decision of Hussain v HMA in which the Court re-iterated that the period of time between the incidents to which the Moorov doctrine is sought to be applied is only one of the factors to be considered. In that case, in para [22] of the Opinion of the Court delivered by Lord Osborne, the Court stressed, after referring to Dodds v HMA, Cannell v HMA 2009 SCCR 207 and Stewart v HMA 2007 SCCR 03, that the question that required to be faced in any case involving a number of charges is whether, having regard to the period of time involved and (emphasis added) the other circumstances of the case, the Moorov doctrine could be applied.

[10] Recognising that the Court might not be disposed to allow the appeal solely on account of the passage of time between charge 2 and charges 1 and 4, Miss Ogg emphasisedstressed that in any event the Crownit required to be proved that the individual charges alleged had formed part of a course of conduct on the part of an accused (Tudhope v Hazelton). There had to be something very unusual about the circumstances of the individual incidents involved, amounting to a striking similarity, before it was open to a court to hold that such incidents formed part of a course of conduct to which the Moorov doctrine could be applied. Mere similarity between the circumstances of the individual charges involved was not sufficient. It was necessary required to be proved that the individual charges alleged had formed part of a course of conduct on the part of an accused (Tudhope v Hazelton). That had not been possible in the present case. Tbecause the circumstances of the individual charges, as set out in the findings in fact, did not have the striking similarity which was necessary. That was clear from the submissions that had been advanced on behalf of the appellant during the trial, which were summarised in the Stated Case. In the present case, accordingly, the Sheriff had erred when considering the significance of the periods of time between charge 2 and each of charges 1 and and between charge 2 and charge 4 and the particular circumstances of those charges. Furthermore the Sheriff had also erred when dealing with the submission of no case to answer by considering the evidence as a whole in relation to the sufficiency on all three charges. He ought to have considered separately whether the evidence relating to charge 1 would have been sufficient to corroborate charge 2, whether the evidence relating to charge 4 would have been sufficient to corroborate charge 2 and whether the evidence relating to charge 1 would have been sufficient to corroborate charge 4. The appeal should be allowed and the convictions on charge 2 quashed.

Submissions for respondent
[11] In reply the Advocate depute submitted that it was clear from authority that the period of time between incidents is only one of the factors that requires to be considered. For that reason Miss Ogg's submission that the periods of time between charge 2 on the one hand and charges 1 and 4 on the other hand had been too long to allow for the application of the Moorov doctrine in seeking a conviction on charge 2 was unfounded. What was conceded, however, was that the longer the period of time the more anxious the consideration that required to be given to the nature of any similarities between the character of the conduct alleged and the factual circumstances of the incidents involved. When one was dealing with charges separated by long periods of time there had to be something "out of the usual", before the doctrine could be applied.

[12] The Advocate depute submitted that the Sheriff's analysis of the similarities between the circumstances and character of the incidents, as set out in the Stated Case, had been sound and the appeal against the conviction on charge 2 should be refused..

Discussion
[13] We have reached the conclusion that the appeal should be refused. In discussing our reasons for reaching that decision, we find it helpful to begin our consideration of the submissions we received by recalling the quotation from the Opinion of Lord Justice Clerk Aitchison in Ogg v HMA, which is set out in para
[7] above. In that Opinion the Lord Justice Clerk stressed the need for to prove that the charges to which it is proposed to apply the Moorov doctrine to bewere "so inter-related by character, circumstances and time - the presence of all these features being not essential - as to justify an inference that they were instances of a course of criminal conduct systematically pursued by the accused person". Later in the same passage, Lord Justice Clerk Aitchison indicated that before the Moorov doctrine can be applied "it must be possible to say that there is not only a series of separate similar offences, but that there is a practical certainty ... that the similar offences are instances of one course of criminal conduct persistently pursued by the accused person." He went on to warn that if the doctrine "is not applied with caution, there is a danger that evidence showing a general disposition to commit some kind of offence might be treated as corroboration." What was said by Lord Justice Clerk Aitchison in thatThat passage lies behind and is reflected in the discussion in Dodds v HMA, Cannell v HMA and Stewart v HMA, authorities whichwhich were referred to in para [21] of the Opinion of the Court in Hussain v HMA. In all of these authorities it is stressed that the period of time between incidents to which the Moorov doctrine might relate is but one factor or circumstance to be considered in determining whether a jury would be entitled to apply the doctrine. The approach to be adopted by the Court in such cases is succinctly summarised by Lord Justice General Rodger in Bargon v HMA 1997 S.L.T. 1232 at 1233 H-I:

"All these cases have to be considered on their own facts. We would not wish to lay down any hard and fast doctrine. The simple question in each case is whether or not all the circumstances including the time gap are such that it is open to the jury properly to infer that there was a course of conduct which linked the incidents and so provided the basis for the doctrine to be applied."

From these authorities it is clear that, whilst character, circumstances, and the period of time between incidents should all be considered, the emphasis requires to be on considering whether an inference can be drawn that an individual incident forms part of ere had been a course of conduct systematically pursued by on the part of the accused. Indeed in Ogg v HM Advocate, Lord Justice Clerk Aitchison indicated that before the Moorov doctrine can be applied it must be possible to say that the offences involved are not a series of separate similar offences, but that there is a "practical certainty...that the similar offences are instances of one course of criminal conduct persistently pursued by the accused person." Later in the passage quoted, he warned that if the doctrine "is not applied with caution, there is a danger that evidence showing a general disposition to commit some kind of offence might be treated as corroboration."

[14] Accordingly in the present case, we agree with the Advocate depute that it is not sufficient for the appellant to point to the periods of time between charge 2 on the one hand and charges 1 and 4 on the other and on that basis alone seek the quashing of the conviction on charge 2. Were this Court to follow such an approachdo so, it would be failing in its duty to address the question of whether it can properly be inferred that there was a course of conduct linking charge 2 to charges 1 and 4 . For that reason Miss Ogg's initial submission must be rejected.

[15] The question therefore comes to bebecomes whether, when the factual circumstances of the charges are considered, in the light of the character of the conduct alleged and the periods of time which have elapsed between charge 2 on the one hand and charges 1 and 4 on the other, it can be said that the three incident giving rise to charge 2 s forms part of in which the appellant was involved amounted to the samea course of conduct as charges 1 and 4. For the purposes of this discussion, of course, we proceed on the basis that the Sheriff was correct in applying the doctrine to charges 1 and 4. on his part, as opposed to establishing no more than a disposition on the part of the appellant to commit isolated criminal acts of a similar character.

[16] In the present case there can be little dispute that the conduct on the part of the appellant, which was spoken of during the evidence of each of the three complainers was sexual conduct of a similar character. That is clear from findings in fact 7, 16, 25 and 26 in the Stated Case. It was open to the Sheriff to take the view, as he did, that there were striking similarities between the appellant's conduct towards each of the complainers. Any minor distinctions, as regard the conduct towards the individual complainers, do not fall to be treated as being true differences or of any significance in resolving the question before us (S (N K) v H M Advocate 2006 SCCR 70).

[17] The particular circumstances relating in which each of the three complainers wasere assaulted are also clearly set out in the findings in fact we have quoted Here again there are striking similarities between the circumstances of each charge. In each instance the complainer was aged between 14 to 15 years of age. All the complainers were pupils at the same school at which the appellant was a teacher. All the charges involved the complainer going on an outward bound trip arranged by the appellant and during which he was the only adult present. The complainer on charge 1 was invited to go on the trip by the appellant. The complainer on charge 2 was selected to go on the trip by the appellant. Whilst the complainer on charge 4 had asked the appellant if he could go on the trip during which he was assaulted, the appellant hads selected that complainer for a previous trip. The appellant hadwas in control over each trip and in particular over the sleeping arrangements. All the charges are alleged to have taken place when the complainer involved was in bed, having retired for the night and been asked to sleep where the appellantccused directed. In each incident the appellant's conduct ceased when it became clear that his advances were not welcome. Similarly, in each incident the appellant's penis had been exposed and was erect. In each incident the appellant had behaved the following morning as if nothing untoward had happened during the night.

[18] Before the Sheriff other circumstances were founded upon by the appellant's solicitor as pointing towards a lack of similarity. For example, charge 2 is alleged to have been committed in a tent in Iona whereas charges 1 and 4 were alleged to have been committed in a caravan at Arrochar. Reliance was also placed on the evidence the complainers gave of the appellant having regularly arranged similar outward bound trips over a number of years, involving a number of pupils.

[19] Notwithstanding that evidence, the Sheriff took the view that there were striking similarities between the circumstances of the three charges. We Having carefully reviewed his findings in fact and the terms of his Note, we are persuaded that was a conclusion that the Sheriff was entitled to reacheach that conclusion.. It is one with which we agree.

[1920] However, the much more difficult question is whether The question that arises in this appeal is difficult, not least of all because of the high test that was laid down by Lord Justice Clerk Aitchison - . That test requires that the Court be satisfied as "a reasonable and practical certainty" that the offences are instances of one course of conduct pursued by the same person - can be met in this case. In addressing that question we bear in mind that Lord Justice Clerk Aitchison warned that the Moorov doctrine should be applied with caution, to guard against the danger of evidence demonstrating a general disposition to commit a particular kind of offence being treated as corroboration. The need for such caution is reflected in the opinions in cCertain of the other authorities to which we were referred by Miss Ogg. Such authorities make clear that, when a court is dealing with charges which are limited in number and separated by long periods of time, care must be taken before the Moorov doctrine is applied. This appellant faced only three charges. Whilst there is a striking similarity between the conduct of the appellant as spoken to by each of the complainers and the circumstances of charges 1, 2 and 4, oUndoubtedly there was a long period of time between the dates of charge 2 and the dates of charges 1 and 4. ver 9 years elapsed between the end of the period covered by charge 2 and 1 August 1973, the start date of the period covered by charge 1; and an even longer period of over 12 years separates charges 2 and 4.
[20] Having given the matter careful consideration, we have We have, however, reached the conclusion that, notwithstanding the striking similarities in the appellant's conduct and the circumstances of the three charges, to which we have referred, it was not open to the Sheriff to rely on the Moorov doctrine and find corroboration of the evidence of the complainer on charge 2 from the evidence of the complainers in charges 1 and 4. In reaching that conclusion, we place reliance not only on the lapse of time between charge 2 and charges 1 and 4, but also on the limited number of the charges and the evidence the Sheriff heard about the appellant having organised numerous other outward bound trips for schoolboys between 1963 and 1978. We are persuaded that, as far as charge 2 is concerned, the evidence the Sheriff heard was not such as to give rise as a matter of necessary inference to the conclusion that the appellant's conduct between 1 March 1963 and 1 July 1964 formed part of a course of conduct which was systematically pursued by him from that time right through until the commission of charges 1 and 4. In our opinion, the inference that falls to be drawn from the evidence relating to charge 2 can go no further than to indicate a general disposition or propensity on the part of the appellant to engage in sexual activity with young boys. In expressing that conclusion, we are acutely conscious of the difficulty in identifying, let alone defining, the dividing line between evidence which is capable of proving that conduct on a particular occasion is part of a systematic course of conduct and evidence which falls short of that. However, we are persuaded that the evidence relating to charge 2 in the present case falls on a different side of that line to the evidence relating to charges 1 and 4, which the Sheriff heard. there is a striking and indeed unusual similarity between the appellant's conduct and the circumstances of charges 1, 2 and 4. Accordingly, albeit with some hesitation, we have reached the conclusion are persuaded that the Sheriff was entitled to conclude that the three charges were instances of a course of criminal conduct being pursued by the appellant to which the Moorov doctrine could be applied. He was accordingly erred in correct to refusinge the submission of no case to answer in respect of charges 1, 2 and 4..

[21] For the sake of completeness we should record that we do not consider the Sheriff erred in approaching the submission of no case to answer in respect of charge 2 in the manner he did. There was no requirement for him to address as two separate issues whether the evidence relating to charge 1 provided sufficient corroboration of charge 2 and whether the evidence relating to charge 4 also did.

[212] As we have indicated in para [5], the appellant was refused leave to argue that the Sheriff has erred in applying the Moorov doctrine as between charges 1 and 4. We will accordingly answer questions 1 in the affirmative, question and 2 in the negative and question 3 in the affirmative, but only in relation to charges 1 and 4. We shall allow and refuse the appeal against conviction on charge 2 and refuse it in relation to charges 1 and 4. A further hearing will be required for the appealhearing against sentence.

Postscript

[223] The Court has been much assisted in dealing with this appeal by the very carefully drafted Stated Case which the Sheriff has prepared.