Scottish High Court of Justiciary Decisons

HIGH COURT OF JUSTICIARY

[2015] HCJ 62

IND/2014-3253

Lord Uist

OPINION OF LORD UIST

in causa

HER MAJESTY’S ADVOCATE

against

AP

Crown:  McCloy AD, Vengoechea;  Crown Agent

Accused:  McCall;  WSA Solicitors

22 July 2015

[1]        The accused is charged with two charges of lewd and libidinous practices at common law.  Charge 1 libels repeated and extremely serious sexual abuse of his nephew then aged between 8 and 13 years between 18 March 1991 and 17 March 1997 in the accused’s home, involving mutual masturbation, penetrating his nephew’s mouth with his penis and compelling his nephew to perform oral sex on him, inserting his nephew’s penis into his mouth, performing oral sex on his nephew and penetrating his nephew’s anus with his fingers.  Charge 2 libels a single instance of sexual abuse of his niece when she was aged about nine by entering the bedroom where she was sleeping, leaning over her and putting his hand inside her pyjama top and touching her on the body.  In evidence she described his hand as moving and fondling her.  The Crown rely on mutual corroboration of each charge by the other for a sufficiency of evidence on each charge.  

[2]        At the conclusion of the Crown case Miss McCall for the accused made a submission of no case to answer on each charge.  

[3]        Her first point was that on charge 2 there was no proper evidence of identification of the accused as the perpetrator by his niece.  This was because she said initially in evidence that at the time she did not open her eyes.  I am satisfied that there is no merit in this point and that it would be open to the jury to hold that the accused was identified as the perpetrator of the conduct in charge 2.  In the first place, it could be inferred from the circumstances that he was the perpetrator because it was his house, he had been out drinking that night and his niece spoke to the aroma of a man and aftershave and beer when the person entered the room.  Secondly, she accepted that she told the truth in her police statement of 30 June 2014 when she said the following:

“I was awoken from my sleep after I became aware of footsteps in the bedroom.  I instinctively knew it was my Uncle A.  I had peered through my eyes and saw his silhouette in the room.  He is a large man, tall man and had no trouble reaching the top bunk bed where I was.”

She then went on to say in evidence that she was “99% guaranteed that this was A”.

[4]        Miss McCall’s second point was that the rule of mutual corroboration could not apply between the charges because of the different nature of the conduct libelled in each charge and the fact that charge 2 involved a single incident three years after the end of the period libelled in charge 1.  She submitted that the degree of difference in the gravity of the conduct libelled was such as to prevent the application of the rule of mutual corroboration.  The present case was in marked contrast to that of MR v HM Advocate 2013 SCCR 190.  The jury in this case could not conclude that the two charges were part of the same course of criminal conduct systematically pursued by the accused.  It was accepted that there were some similarities in that both children were staying in the accused’s house at the material time, but there were also differences:  his niece was asleep in her bed while his nephew was awake in the living room;  nothing was said to his niece while remarks were made to his nephew to secure his compliance and silence;  the conduct differed in gravity with one incident involving touching the body of his niece but repeated serious abuse in the case of his nephew.  The difference in the gravity of the conduct was so stark that the jury could not construe the crimes as part of a single course of criminal conduct.  

[5]        In response the advocate depute submitted that there were significant similarities in the conduct involved in each charge:  the complainer in charge 1 was the accused’s nephew and the complainer in charge 2 was his niece;  his nephew spoke to abuse from the age of 9 to 13 and his niece spoke to abuse when she was 9 or 10;  the abuse in each case occurred when the complainer was staying overnight at the accused’s home and in each case there was at least one other adult present in the house when the abuse took place.  There was no rule that lesser conduct could not corroborate more serious conduct:  HMcA v HM Advocate 2014 JC 27 at paragraphs [10] and [11].  The case had to be considered in light of other circumstances.  The accused’s niece made an early disclosure, with the result that there was no further contact.  

[6]        Having considered the competing submissions I have reached the conclusion that it would not be open to the jury on the evidence in this case to apply the Moorov doctrine to provide corroboration of charge 1 by charge 2 and corroboration of charge 2 by charge 1.  I accept that it is now clear law that there is no rule that less serious conduct cannot corroborate more serious conduct for the purpose of applying the Moorov doctrine, but there must in my opinion be some limit to the application of that rule.  For example, it is clear that attempted rape or assault with intent to rape can corroborate rape.  It does not follow that conduct of relatively minor gravity can corroborate conduct of relatively major gravity.  In McMahon v HM Advocate 1996 SLT 1139 Lord Justice General Hope stated at p 1142E-F:  

“The fact that each crime is described as an instance of lewd, indecent and libidinous conduct, or as an indecent assault, is not a conclusive pointer in favour of the application of the rule.  Nor does the fact that the crimes each have a different nomen iuris necessarily point against its application.  It is the underlying similarity of the conduct described in the evidence, not the label attached to it in the indictment, which must be examined to see if the rule can be applied.”

[7]        Applying that approach to the evidence in this case, it is the underlying similarity of the conduct which I must examine to see if the rule of mutual corroboration can be applied.  Each charge has the same nomen iuris, namely, lewd, indecent and libidinous practices and behaviour, but that is not a conclusive factor in favour of applying the rule of mutual corroboration.  Each charge involves alleged sexual abuse of a young child related to the accused in his home, but in my view that is as far as it goes.  The conduct involved in each charge is quite different:  that in charge 1 involved repeated instances of the most grave sexual abuse over a period of years, whereas that in charge 2 involved a single incident of relatively minor touching.  Put another way, the conduct in charge 1 involved conduct at the top end of the spectrum of child abuse, whereas that in charge 2 involved conduct very much at the lower end.  The penetration of his nephew’s mouth by the accused’s penis would now constitute the crime of rape under section 1 of the Sexual Offences (Scotland) Act 2009.  I accept that the application of the Moorov doctrine has been extended in recent years, but I do not consider that it has been extended to such an extent that the sort of conduct in charge 2 is capable of corroborating the sort of conduct in charge 1.  Nothing said in any of the recent cases on the subject persuades me that it has.  I do not think that any of the judges who have opined on this issue ever envisaged that the sort of conduct libelled in charge 2 could corroborate the sort of conduct libelled in charge 1.  In this case the underlying similarity of conduct in the two charges is lacking with the consequence that the jury would not be entitled to apply the rule of mutual corroboration.  I should add that I do not think that the time gap is of any consequence in relation to the question of similarity of conduct:  if charge 2 had been libelled as having occurred a week after charge 1 I would still have reached the same decision.  

[8]        I shall therefore uphold the submission of no case to answer and acquit the accused of both charges.