Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 78

HCA/2016/000124/XC

Lord Menzies

Lord Brodie

Lord Drummond Young

OPINION OF THE COURT

delivered by LORD MENZIES

in

APPEAL AGAINST CONVICTION

by

WILLIAM McBRIDE

Appellant

against

HER MAJESTY’S ADVOCATE

Respondent

Appellant:  Mitchell;  Faculty Services Limited, Edinburgh (for Livingston Brown, Glasgow)

Respondent:  Farquharson AD;  Crown Agent

18 August 2016

[1]        The issue in this case is whether there was sufficient evidence in its particular facts and circumstances to enable the trial judge to allow the Moorov Doctrine of mutual corroboration to be applied, as between charges 8 and 11, when the lapse of time between the two charges was 22 years and 4 months.

[2]        As the Lord Justice Clerk recently observed in the case of JL v HMA 2016 HCJAC 61 the basic principles hardly bear restating.  We do not seek to do so today.  They have been comprehensively and clearly set out by this court in a sequence of fairly recent decisions namely AK v HMA 2012 JC 74, MR v HMA 2013 JC 212, RF v HMA 2016 HCJAC 52, RG v HMA 2016 HCJAC 60 and JL to which we have just referred.

[3]        Each case must depend on its facts and circumstances.  Suffice it to say that in the present case we are not persuaded that any of the similarities relied on by the Crown and summarised in their written submissions at paragraph 3.2(i) to (x), whether taken individually or cumulatively, amount to the necessary special or extraordinary features which are sufficiently compelling to enable it to be said that the events, separated by a period of 22 years and four months, comprise part of the same single course of criminal conduct systematically pursued.

[4]        It follows that we consider that the trial judge ought to have sustained the submission of no case to answer in relation to charge 11 on this indictment.  We shall therefore allow this appeal against conviction.

[5]        The trial judge imposed a sentence of five years’ imprisonment in cumulo in respect of the three charges involving common law crimes, namely charges 2, 8 and 11.  As we have quashed the appellant’s conviction on charge 11 we require to consider the consequences of this decision on sentence.

[6]        In all the circumstances we have reached the conclusion that the appropriate sentence in relation to charges 2 and 8 in cumulo, that is leaving aside charge 11 which we have quashed, is four years and six months’ imprisonment.  We shall therefore quash the sentence of five years’ imprisonment imposed by the trial judge in respect of the common law charges and substitute a sentence of four years’ and six months’ imprisonment.  All other aspects of the trial judge’s sentence will stand.