Scottish High Court of Justiciary Decisons

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URL: http://www.bailii.org/scot/cases/ScotHC/2018/[2018]_HCJAC_30.html
Cite as: 2018 GWD 19-240, [2018] HCJAC 30, 2018 SCCR 149, [2018] ScotHC HCJAC_30

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Menzies

Lord Malcolm

[2018] HCJAC 30

HCA/2017/614/XC

STATEMENT OF REASONS

Issued by LADY DORRIAN, the LORD JUSTICE CLERK

APPEAL AGAINST CONVICTION

Appellant

against

HER MAJESTY’S ADVOCATE

Respondent

Appellant: D Forbes, Faculty Services Limited (for Dewar Spence, Leven)

Respondent: A Prentice, QC, AD; Crown Agent

30 May 2018

[1] The issue in this appeal is whether there was sufficient evidence to justify the

application of the Moorov doctrine in charges involving two complainers where the shortest

gap in time between the alleged offending was a period of just under 17 years. It is

maintained that there was insufficient evidence to indicate that the charges formed part of a

course of conduct systematically pursued by the appellant. In respect of the first complainer

the charge was one of lewd and libidinous practices when she was aged 9, on various

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occasions between 1 September 1997 and 24 December 1997, in that the appellant gave her a

bath during which he handled her naked body and on two occasions inserted his fingers

into her vagina. There were two charges in respect of the second complainer. The first was

that on various occasions between 1 December 2014 and 28 July 2015 he intentionally caused

her, then aged between 6 and 7 years to participate in a sexual activity in that he induced her

to masturbate his naked penis; contrary to section 21 of the Sexual Offences (Scotland) Act

2009. The second was of sexually assaulting the child, during that same period, by giving

her a bath during which he handled her naked body, induced her to lie naked on a bed and

rubbed her naked body with a towel and massaged her naked body with his hands and

induced her to lie in bed with him whilst he was naked and she was naked and induced her

to sit on his body whilst they were both naked; contrary to section 20 of the Sexual Offences

(Scotland) Act 2009.

[2] The sheriff repelled a no case to answer submission, notwithstanding that the fiscal,

in resisting the motion, had referred to the conduct as “opportunistic”. The sheriff

considered that whilst there was no upper limit to the time over which the Moorov doctrine

could apply, for it to do so over a period as long as 17 years there had to be some

extraordinary or compelling feature to entitle the jury to find the necessary underlying

unity. The sheriff considered that there were such features. The appellant had ingratiated

himself with the families of the girls. He gave the first complainer’s mother cards which she

could sell to make money. He did gardening for the parents of the second complainer and

"helped" them by looking after her so that they could go to work. In both cases, the

opportunity to be alone was suggested by him. He gave gifts to both girls. He gave both

girls a bath, for no good reason. In the sheriff’s view, it could not be said that there was no

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possible view on which the jury would be entitled to characterise the similarities as

extraordinarily compelling.

[3] The main point in the appeal was that although there was no maximum period

beyond which the doctrine could not apply, the longer the gap the more difficult it was to

draw the inference of an underlying unity, particularly in a limited number of charges,

where great care must be taken to avoid using as corroboration evidence pointing only to a

general disposition. There were no special or compelling points of similarity which might

overcome the significance of the lengthy gap in time. Something more than repetition of a

series of similar crimes was required. There was no evidence indicative of continuity,

necessary to establish a course of conduct.

[4] For the Crown it was recognised that a gap of 17 years presented a considerable

hurdle to the operation of the doctrine. It was acknowledged that where the interval was

very long it was necessary to consider whether there were any special features which

nonetheless made the similarities compelling, the question being whether it could be

inferred that the behaviour all formed part of a course of action systematically pursued by

the appellant. The matter should be left to the jury unless it could be said that on no

possible view could there be a connection between the charges. The Crown referred to the

individual factors which were said to be so compelling as would entitle the jury to draw the

necessary inference of unity. These were largely those referred to by the sheriff. The

advocate depute relied on para 17 of DS v HMA [2017] HCJAC 12 as supporting his

argument that the features in this case, including what appears to be a certain degree of

grooming, were capable of being treated as sufficiently compelling to elide the time gap.

However, what may be sufficient to do so in a time gap of 7 years, as in DS, may not suffice

when the gap is a much larger one. In our view the circumstances of this case present no

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compelling circumstances capable of overcoming the very substantial time gap. The

position is exactly as was described in RB v HMA 2017 JC 278 para 33:

“There are, of course, similarities in the conduct, but they are the similarities which

one might expect to find in any two offences of this kind. There are no similarities of

such a striking or extraordinary nature which might suggest that the two offences

were part of the same course of conduct, systematically pursued by the appellant.

The evidence in the present case suggests two separate courses of conduct, albeit

arising from a particular disposition.”

[5] For these reasons the appeal will be allowed.