B v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 09 December 2008 |
| Neutral Citation | [2008] HCJAC 73 |
| Docket Number | No 10 |
| Date | 09 December 2008 |
| Court | High Court of Justiciary |
Appeal Court, High Court of Justiciary
Lord Justice-General (Hamilton), Lord Nimmo Smith, Lord Eassie
Justiciary - Evidence - Sufficiency - Corroboration - Mutual corroboration - Moorov doctrine - Whether charges sufficiently similar in time, character and circumstance to justify application of Moorov doctrine
The appellant was prosecuted on an indictment which contained three charges: charge (1), lewd, indecent and libidinous practices towards a child under the age of 12 years, charge (2), public indecency and charge (3), a sexually motivated breach of the peace.
The complainer in charge (1) was the appellant's stepdaughter. She stated that the first incident of alleged sexual activity occurred when she was 10 years old and was alone with the appellant in the house. The appellant exposed his penis and masturbated to ejaculation. Subsequently in date, there was an incident in which the appellant rubbed his penis against her buttocks and made sexual remarks towards her. A further incident involved her being seated on the appellant's knee in the course of which the appellant put his fingers into her vagina while his erect penis was pressing into her bottom. In addition, the complainer gave evidence of two occasions in which in the course of a car journey in the locality, the appellant asked the complainer to masturbate him and placed her hand on his penis and encouraged the movements appropriate to that activity.
The complainer in charges (2) and (3) was the grandmother of the complainer in charge (1). After she had been widowed in 1996 the appellant, a taxi driver, regularly took her to the cemetery. In respect of charge (2), on two of those journeys the appellant began to masturbate while driving. The complainer ignored it. On a third occasion she objected and asked the appellant to stop the car and let her out. In respect of charge (3) the complainer gave evidence of some incidents at the appellant's home when, her daughter (the appellant's then spouse) being absent, the appellant stood in the kitchen area of the house, looked into the living room area, lifted his top, "circled his nipples" and masturbated while staring at her.
The material evidence led by the Crown consisted of the testimony of the two complainers which had to be mutually corroborative in accordance with the Moorov doctrine. At the conclusion of the Crown case a submission of no case to answer was made by the defence on the ground that there was palpably an insufficient similarity between lewd and libidinous practices towards a girl under 12 years and the other two charges, albeit it was recognised that both of the latter charges involved some sexual element. The sheriff rejected that submission and the jury in due course convicted him of all three charges. He appealed against this conviction.
The appellant argued that there had been a palpable lack of symmetry or similarity between the charges. The charges had involved quite distinct and different crimes. It had been crucial to the invocation of the rule respecting mutual corroboration that the crimes charged should have been the same crimes. It had been necessary that the criminal conduct should have been the same in any reasonable sense.
The Crown argued that there had been a common element in the locations of the crimes, a similarity in that both complainers were members of the appellant's family, a broad similarity in time-scale and similarity because some of the sexual activity on the part of the appellant, had been masturbation in the presence of a member of the family. While there were obvious differences between the nature of the charges in respect of the complainers, there had been some similarity in the broad factual circumstances which had justified allowing the matter to go to the jury.
Held that: (1) the law had developed to the extent that identity of the crimes charged had not been a prerequisite for the application of the Moorov doctrine (para 6); (2) what had been critical, apart from similarity of time, place and circumstance had been "similarity of the conduct described in the evidence" (para 6); (3) the appellant had been charged with crimes which each included the averment that he had "exposed his naked private member towards [the individual] and masturbated himself in [her] presence" (para 7); (4) although the crimes charged had been categorised differently, the essential conduct had been identical (para 7); (5) provided that the further requirement of external relationship in time, character or circumstance had been satisfied, the doctrine could apply (para 7); (6) the sheriff had been entitled to reject the submission made to him; and appeal refused.
Dissenting (per Lord Eassie) that: (1) it remained an essential requirement for the application of the MoorovENR doctrine of mutual corroboration that the charges in question raised the same crime "in any reasonable sense" (para 30); (2) mutual corroboration had been admissible only where one had been concerned with a single unified course of criminal conduct (para 31); (3) the mere existence of a sexual element in each of the three charges had not been sufficient to render the offences "the same crimes" (para 33); (4) the charges and the evidence in the present case had not met the test of being "the same crimes in any reasonable sense" (para 34); (5) lewd, libidinous and indecent conduct was a crime whose object was the protection of children from sexual abuse and the essence of the offence was the tendency to corrupt the innocence of the complainer (para 34); (6) the object of the other two charges was the avoidance of affront or upset (para 34); (7) the crime of sexually abusing one's stepdaughter, under the age of 12 years - in its terms a crime of child sex abuse or paedophilia - was inherently different in its essence from the crime of causing upset or annoyance to one's mother in law by some masturbatory activity in her presence (para 34); (8) the respective complainers were in fundamentally different positions (para 34); (9) the complainer in charge (1) was at the relevant time, a child, as respects whom the law provided a protective regime against her being sexually abused, irrespective of her actual consent (para 34); (10) the complainer in charges (2) and (3) was an adult of mature years, and the charges were not directed to any physical, sexual invasion of her person or corruption of her sexual innocence or morality, they had related to her affront or her upset (para 34); (11) the evidence respecting the paedophilic allegations under charge (1) included evidence of actual physical contact between the appellant and his stepdaughter, and digital penetration of her private parts (para 34); (12) no physical contact whatsoever had been said to have taken place between the complainer in charges (2) and (3) and the appellant (para 34); (13) it was difficult to identify in these circumstances what the Lord Justice-General in Moorov v HM Advocate indicated as necessary, namely identification of a "particular and ascertained unity of intent, project, campaign or adventure which lies beyond or behind … the separate acts" (para 34); (14) the sheriff's decision to refuse the no case to answer submission advanced by the defence and to allow the matter to go before the jury had involved an error in law (para 35); (15) it had also involved a miscarriage of justice (para 35).
B was charged on an indictment in the sheriff court, at the instance of the Right Honourable Elish F Angiolini QC, Her Majesty's Advocate, the libel of which set forth offences of lewd, indecent and libidinous practices towards a child under the age of 12 years, public indecency and a sexually motivated breach of the peace. The appellant tendered pleas of not guilty and the cause came to trial in the sheriff court at Oban before a sheriff (WD Small) and a jury. On 27 July 2007 the appellant was convicted. On 6 November 2007 he was sentenced to a total period of 15 months' imprisonment.
The appellant thereafter appealed against conviction to their Lordships in the High Court of Justiciary.
Cases referred to:
Advocate (HM) v BrownSC 1969 JC 72; 1970 SLT 121
Advocate (HM) v CoxSC 1962 JC 27
Austin v FraserUNK 1998 SLT 106; 1997 SCCR 775
Carpenter v HamiltonUNK 1994 SCCR 109
Hughes v HM AdvocateUNK [2008] HCJAC 20; 2008 SCCR 399
KP v HM AdvocateUNK 1991 SCCR 933
McMahon v HM Advocate 1996 SLT 1139
Moorov v HM AdvocateSC 1930 JC 68; 1930 SLT 596
Smith v HM Advocate 1995 SLT 583
Webster v DominickUNK 2005 1 JC 65; 2003 SLT 975; 2003 SCCR 525
Textbooks etc. referred to:
Alison, AJ, Prinicples and Practice of the Criminal Law of Scotland (Black, Edinburgh, 1833), ii, 552
Dickson, WG, A Treatise on the Law of Evidence in Scotland (3rd ed, Bell & Bradfute, Edinburgh, 1887)
Hume, Commentaries on the Law of Scotland Respecting Crimes (4th Bell ed, Bell & Bradfute, Edinburgh, 1844), ii, 358
Tait, G, A Treatise on the Law of Evidence in Scotland (3rd ed, Anderson, Edinburgh, 1834)
The cause called before the High Court of Justiciary, comprising the Lord Justice-General (Hamilton), Lord Nimmo Smith and Lord Eassie, for a hearing, on 25 June 2008.
At advising, on 9 December 2008-
Lord Justice-General (Hamilton)- [1] I am grateful to Lord Eassie for his narrative of the circumstances and for his careful analysis of the authorities which bear on the issue before the court. As I have, however, come to a different conclusion, I must explain my reasons for doing so. Before examining the authorities and seeking to apply them, I also record the assistance I have derived from the outline submissions prepared and lodged by counsel for the appellant.
[2] The leading decision in this field is Moorov v HM Advocate (a decision of a Full Bench). The accused there was charged with 21 offences. These were grouped into 'three distinct categories of crime, viz.:- (1) assault, (2) indecent assault and (3) attempt...
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