The Moorov doctrine and coercive control: Proving a ‘course of behaviour’ under s. 1 of the Domestic Abuse (Scotland) Act 2018

DOI10.1177/1365712720959857
Date01 October 2020
Publication Date01 October 2020
AuthorIlona Cairns
SubjectArticles
Article
The Moorov doctrine and
coercive control: Proving a
‘course of behaviour’ under s.
1 of the Domestic Abuse
(Scotland) Act 2018
Ilona Cairns
University of Aberdeen School of Law, UK
Abstract
In 2019, a distinct offence of ‘abusive behaviour towards partner or ex-partner’ (‘domestic
abuse’) came into force in Scotland via s. 1 of the Domestic Abuse (Scotland) Act 2018. This
new offence has been celebrated for its meaningful incorporation of the concept of coercive
control (Evan Stark has described the 2018 Act as ‘gold standard’ legislation) and may serve as a
model for other jurisdictions looking to criminalise coercive and controlling behaviours.
The practical effectiveness of the offence in Scotland, however, will hinge on how Scotland’s
corroboration rule, and the accompanying Moorov doctrine (‘Moorov’), are applied in this
context. Drawing both on recent doctrinal developments and on a conceptual understanding
of the dynamics of coercive control, this article offers the first in-depth analysis of how Moorov
is likely to apply in s. 1 cases. It identifies developments that are likely to assist the prosecution,
as well as potential barriers to the doctrine’s successful application, and argues that in certain
cases judges and jurors will have difficulty seeing the ‘course of conduct’ required by Moorov
without proper understanding of the policy underpinning the Act and the gendered nature of
domestic abuse. The article considers how this understanding may be brought about, both
within the confines of the current law and in terms of possible reform.
Keywords
coercive control, corroboration, domestic abuse, similar fact evidence, sufficiency of evidence
Introduction
It is increasingly recognised that overcoming evidential challenges will be key to ensuring the
effectiveness of the recent global wave of legislation criminalising coercive and controlling
Corresponding author:
Ilona Cairns, University of Aberdeen School of Law, Taylor Building High Street Aberdeen AB24 3UB, UK.
E-mail: ilona.cairns@abdn.ac.uk
The International Journalof
Evidence & Proof
2020, Vol. 24(4) 396–417
ªThe Author(s) 2020
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DOI: 10.1177/1365712720959857
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behaviours (Bettinson and Bishop, 2018; Burman and Brooks-Hay, 2018). In Scotland, where a
distinct offence of domestic abuse modelled on the concept coercive control was recently intro-
duced via the Domestic Abuse (Scotland) Act 2018, such concerns are especially pronounced due
to the existence of a formal legal requirement of corroboration.
1
This rule requires that the ‘essen-
tial’ or ‘crucial’ facts of a case—including that a crime was committed and that it was the accused
who committed the crime—are supported by two independent pieces of evidence, and therefore
raises obvious issues in cases that tend to occur in private (Cairns, 2013). Although controversy
over the way in which this requirement operates in domestic abuse cases predates the 2018 Act,
securing corroborative evidence for the purposes of the new offence presents new comple xities both
due to the fact that there are likely to be fewer sources of evidence (e.g. forensic evidence, CCTV
or direct witnesses) available to corroborate the newly criminalised coercive and controlling beha-
viours,
2
and due to the precise way in which the terms of the legislation interact with the technical
aspects of the corroboration rule.
The Scottish doctrine of mutual corroboration—the Moorov doctrine
3
—alleviates the inherent evi-
dential challenges in this area to a certain extent, and its successful application will be pivotal to securing
prosecutions and convictions under the 2018 Act. The doctrine is not an exception to Scotland’s
corroboration requirement, but rather one of several rules that has developed to assist with securing
corroborative evidence in circumstances where it is likely to be lacking, including in sexual offence and
domestic abuse cases.
4
This article offers an in-depth doctrinal analysis of recent developments in the
interpretation of the Moorov doctrine and their relevance for proving the Scottish offence of domestic
abuse, which came into effect in April 2019. In addition to providing an up-to-date account of the precise
factors and considerations that are relevant to establishing a course of conduct under Moorov, and an
assessment of how these are likely to apply in the context of proving the distinct offence of domestic
abuse, this article also draws on case law to identify several potential stumbling blocks to the doctrine’s
successful application in s. 1 cases. These include, but are not limited to, the requirement for compelling
similarity between offences where there is a lengthy time gap (explored in Part two); resistance to further
extension of the doctrine (explored in Part three); and the challenges of ensuring that both judges and
jurors have sufficient understanding of coercive control—a concept that strongly influenced the creation
and drafting of the 2018 Act—to be able to see connections between offending behaviour that has
traditionally been viewed as different in nature (discussed in Part four). This article argues that judicial
and juror understanding of the dynamics and gendered nature of coercive control is essential if the
Moorov doctrine is to meet its full potential in this context; identifies ways the current law both
facilitates and impedes this understanding; and considers possible avenues of reform. While there are
a number of complex evidential issues raised by the new Scottish offence—including, for example, the
use of hearsay evidence
5
and proving intent or recklessness to cause harm without the complainer’s
presence in court—this article co ncentrates exclusively on the pra ctical application of the Moorov
doctrine. It does not seek not provide a comprehensive analysis of all aspects of the 2018 Act (for this
1. In 2011, the Carloway Review (Scottish Government, 2011) recommended that the corroboration requirement should be
abolished, triggering legislative reform plans and a heated debate. These plans were put on hold in 2015, following the pub-
lication of the Post-corroboration Safeguards Review (Scottish Government, 2015). For analysis of this U-turn see Cairns
(2018).
2. This was acknowledged by the Crown Office and Procurator Fiscal Service (COPFS) as the Domestic Abuse (Scotland) Bill
passed through the Scottish Parliament, but was accompanied by the reassurance that investigators and prosecutor s have the
requisite ‘skills and expertise’ in this area to ensure that prosecutions still go ahead (Scottish Parliament, 2017). See also
Burman and Brooks-Hay (2018: 8–9).
3. Moorov vHM Advocate 1930 JC 68; 1930 SLT 596. The doctrine of mutual corroboration predates Moorov (it is referred to in
the work of both Hume and Alison). However, Moorov was a landmark case that set out in detail the principles of mutual
corroboration. At points in this article, the Moorov doctrine will simply be referred to as ‘Moorov’.
4. For analysis of the other rules see Duff (2012).
5. For recent discussion of the use of hearsay in domestic abuse cases see Bettinson and Bishop (2018: 17–21).
Cairns 397

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