Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 44

HCA/2015/002281/XC

 

Lady Dorrian

Lord Bracadale

Lord Malcolm

OPINION OF LADY DORRIAN

in

APPEAL AGAINST CONVICTION

by

C W

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  Ogg, sol adv;  McCusker McElroy & Gallanagh, Paisley

Respondent:  Erroch, AD;  Crown Agent

6 May 2016

[1]        The appellant was convicted after trial of the following charges:

“(001) on various occasions between 3 August 2006 and 30 November 2010, both dates inclusive at [an address in Paisley] and elsewhere you CW did indecently assault [JW] c/o Police Service of Scotland, Paisley and did while he lay asleep and intoxicated place your hand under his bed clothes, touch his leg, remove his underwear, masturbate him and place his penis within your mouth and perform oral sex on him

 

(002) on various occasions between l December 2010 and 30 April 2012, both dates inclusive at [an address in Paisley] and elsewhere you CW did sexually assault [J.W.] c/o Police Service of Scotland, Paisley in that you while he lay asleep and intoxicated place your hand under his bed clothes, touch his leg, remove his underwear, masturbate him and place his penis within your mouth and perform oral sex on him;

CONTRARY to Section 3 of the Sexual Offences (Scotland) Act 2009”.

[2]        His plea of guilty to another charge was eventually accepted after the evidence in relation to it had been led. That charge alleged that: 

“(005) on various occasions between 1 June 2013 and 10 May 2014, both dates inclusive at an address in Paisley and elsewhere you CW, being a person who had attained the age of 18 years and who was in a position of trust towards [D.A] born 3 November 1998, c/o Police Service of Scotland, Paisley, whilst said [D.A] was a pupil at [schools in Paisley] and you did look after said [D.A.] at said schools, and you did engage in a sexual activity with or directed towards said [D.A], a person who was under 18 years in that you did meet him outwith the school, take him for drives in your motor vehicle, tell him about your own sexual activities, supply him with alcohol and while intoxicated handle his penis over his clothing, handle his naked penis, masturbate him, place his penis in your mouth, masturbate in his presence, incite him to masturbate in your presence until ejaculation and cause him to ejaculate in your mouth;

CONTRARY to Section 42 of the Sexual Offences (Scotland) Act 2009”.

 

[3]        The first two grounds of appeal raise the question whether the evidence in respect of charge 5 was capable of corroborating the evidence of the complainer on charges 1 and 2, that he did not consent to the conduct alleged.  Ground 3 raises a similar point in relation to proof of a lack of reasonable belief in consent in relation to charge 2.  The final ground is that the sheriff erred in failing to direct the jury whether there was corroboration of a lack of reasonable belief in relation to charge 2, and where that might be found.

[4]        The statutory provisions, so far as relevant, are as follows:

Section 3:

 “(1) If a person (‘A’)—

(a) without another person (‘B’) consenting, and

(b) without any reasonable belief that B consents,

does any of the things mentioned in subsection (2), then A commits an offence, to be known as the offence of sexual assault.

(2) Those things are, that A—

(a) penetrates sexually, by any means and to any extent, either intending to do so or reckless as to whether there is penetration, the vagina, anus or mouth of B,

(b) intentionally or recklessly touches B sexually,

(c) engages in any other form of sexual activity in which A, intentionally or recklessly, has physical contact (whether bodily contact or contact by means of an implement and whether or not through clothing) with B,

(d) intentionally or recklessly ejaculates semen onto B,

(e) intentionally or recklessly emits urine or saliva onto B sexually.”

Section 14:

“(1) This section applies in relation to sections 1 to 9.

(2) A person is incapable, while asleep or unconscious, of consenting to any conduct.

Section 42:

“If a person (‘A’) who has attained the age of 18 years—

(a) intentionally engages in a sexual activity with or directed towards another person (‘B’) who is under 18, and

(b) is in a position of trust in relation to B,

then A commits an offence, to be known as the offence of sexual abuse of trust.

 

Section 45:

“(1) It is a defence to a charge in proceedings under section 42 that A reasonably believed—

(a) that B had attained the age of 18, or

(b) that B was not a person in relation to whom A was in a position of trust.

(2) It is a defence to a charge in proceedings under section 42—

(a) that B was A's spouse or civil partner, or

(b) that immediately before the position of trust came into being, a sexual relationship existed between A and B.

(3) Subsection (2) does not apply if A was in a position of trust in relation to B by virtue of section 43(6)”.

 

Evidence

[5]        The complainer in charges 1 and 2 had been in care and was introduced to the appellant through the social work department when he was 16 or 17. The appellant was introduced to him as a “befriender”. The evidence of the complainer on charges 1 and 2 on the question of consent was that when he was sober he had on a number of occasions consented to conduct of this kind between himself and the accused. However, he gave evidence that the incidents referred to in the charges had occurred when he was asleep or drunk and that on these occasions he had not consented. On such occasions he told the appellant to “fuck off”, at which point the appellant would stop what he was doing. The complainer had already laid down ground rules with the appellant that no sexual conduct was to take place when he was intoxicated. He had told the appellant not to do these things to him and to stop touching him or sucking his penis when he was not consenting.  He continued to see the appellant socially up to and including 2014 and there had been consensual sexual conduct between them in 2014.  On occasions the appellant paid him £20, which was an agreed “fee” between them.  In cross examination he denied that all sexual contact between them had been consensual.

[6]        The age of the complainer on charge 5 during the period of the libel went from just short of his 15^th birthday to 15½.  The appellant was his teacher, responsible for extra teaching of him, and in a position of trust. He then gave evidence of the incidents referred to in the charge. He accepted a suggestion from the crown that the appellant had built up a relationship of trust with him before the sexual activity took place. The activity had been entirely started by the appellant. After this evidence the appellant pled guilty to charge 5.

 [7]       The appellant gave evidence that he had applied to the social work department to become a befriender to young people, and thus began his involvement with the first complainer. He had volunteered his services and had made an application on-line with the social work department in order to become a befriender. Befrienders were people who became involved with vulnerable children. They were trained not to have personal relationships with their clients. The complainer was vulnerable when they first met. He was about 15½ and living in a children’s home. In the appellant’s view, the complainer stopped being vulnerable when he became an adult at 18.

[8]        The complainer had been 18 when he first came to the appellant’s flat, and 19 when the first sexual contact took place. Sexual conduct took place on numerous occasions but always with consent, and never when the complainer was drunk or asleep. The complainer had initiated the contact because he wanted money. The appellant had never forced his attentions on the complainer. The complainer had wanted to move on from being befriended to being a friend. The appellant knew from his training that he should not allow this to happen. In relation to the second complainer he admitted taking him for drives and supplying him with alcohol.  There had been a combination of that behaviour and then sexual behaviour in May 2014.  He understood the concept of grooming but had not been culpable of such an activity. He did accept that he had been guilty of a breach of trust in respect of the second complainer.

 

The submission to the sheriff

[9]        In the Crown speech the procurator fiscal depute relied for corroboration on the application of the Moorov doctrine, citing a similarity of time, place and circumstance as indicating a course of conduct on the part of the accused. Thus corroboration of the first complainer’s evidence came from the evidence of the second complainer, which evidence was unequivocal since the appellant had accepted his guilt on that charge.

[10]      After the Crown speech the appellant’s solicitor made a submission in terms of section 97A of the 1995 Act that the evidence of the complainer on charge 5 was not capable of corroborating the evidence of the complainer on charges 1 and 2. The similarity of circumstances was not disputed, but the complainer on charge 5 had been silent on whether he had been a willing participant or had consented. Consent was not an issue for proof of charge 5, but was an essential element of charge 2 which required to be corroborated.  Further, the circumstances in relation to charges 1 and 2 were such that the appellant would at least have had a reasonable belief that the complainer was consenting.

[11]      The Crown response was that the evidence of lack of consent in charges 1 and 2 was clear. Reference was made to section 14 of the 2009 Act as to when a person is deemed to be incapable of providing consent, including when asleep or intoxicated. The evidence on charges 1 and 2 was corroborated by the evidence of similar sexual conduct in respect of a person who was not capable of providing consent because of his age. The statutory provision meant that the complainer on charge 5 was not capable of giving consent.

 

The sheriff’s decision

[12]      The sheriff ruled that lack of consent was to be implied in charge 5, and that if the jury accepted the evidence of the first complainer regarding lack of consent, that evidence could be corroborated by the lack of consent implied in charge 5. Section 42 was silent on the question of consent but the offence was “predicated on a policy that lack of consent is a necessary assumption: such a victim is unable to give consent because of the position of trust between the victim and the perpetrator.”

[13]      In his charge, the sheriff gave direction as to the central components of a charge of indecent assault, noting (albeit obliquely) that an absence of consent was the factor capable of rendering the acts in question an assault.  He also directed as to the essential components of a charge under section 3 of the Act for the purposes of this case, namely an intentional or reckless act of sexual touching, a lack of consent and an absence of reasonable belief in consent. He directed the jury that all these elements required to be established by corroborated evidence. He defined consent appropriately, and drew attention to provisions indicating that there would be no free agreement when a person was incapable of consenting by virtue of the effect of alcohol or drugs, or sleep.

[14]      In relation to corroboration, the sheriff explained that the Crown relied upon the Moorov doctrine. He reminded the jury that what required to be established for charge 2 was sexual conduct, lack of consent and an absence of reasonable belief in consent.  He directed them (p31) that:

“If you’re satisfied that the…charges are so closely linked by their character, the circumstances of their commission, the place of commission and the time of commission, so as to bind them together as parts of a single course of criminal conduct systematically pursued by the accused, then the evidence of one witness about the commission of one crime can be sufficiently corroborated by the evidence of one witness about the commission of the other crime. In looking at the charges it’s the underlying similarity of the conduct which is described by the witnesses which you have to consider, in deciding whether the doctrine applies. It does not matter…that the charges have different names or are any more or less serious.”

 

He explained to the jury (p32/33) that the Crown relied upon the evidence of the second complainer

“to corroborate the account of (the first complainer) as to what he says happened to him in respect of each of charges 1 and 2.”

 

[15]      The sheriff explained that both witnesses would have to be found to be credible and reliable before this doctrine of mutual corroboration could be applied.  It could be applied (p34):

“..if, by reason of the character, circumstance, place of commission and timing of each charge, the crimes are so closely linked that you can infer that the accused, was pursuing a single course of crime. It’s not enough if all that it shows is that he had a …general disposition to commit this type of offence.”

 

[16]      The sheriff then referred to the points of similarity upon which the Crown were relying, adding (p35):

“Also the Crown ask you to accept, and that you might infer, that because (the second complainer) was too young, being under 18, to consent, that lack of consent on (his) part ..allows you to find corroboration of the lack of consent by (the first complainer)…….”

 

[17]      It appears from the sheriff’s summary of the defence position (p36) that the defence had accepted the proposition that:

 “as a matter of law the lack of consent by (the second complainer) is assumed, because at the time of the actions in charge 5 …he was under 18 and therefore his lack of consent is implied…”

 

[18]      The sheriff directed the jury (p36) that the crimes were sufficiently close in time, character, place of commission, and circumstance, for the rule in Moorov to apply, but the questions for the jury were (a) whether they found the first complainer credible and reliable; (b) whether they were in fact satisfied as to the similarities. In essence he directed them (p37) that if satisfied on the first complainer’s evidence that the acts spoken to by him were not consensual, they could find corroboration for that in the evidence of the second complainer.

 

Submissions for the appellant

[19]      Expanding upon the arguments advanced before the sheriff, the solicitor advocate for the appellant submitted that an absence of consent was a critical matter for the Crown to prove in respect of either the common law charge of indecent assault, or a sexual assault under section 3 of the Act.  These were all essential matters which required corroboration (Tait v HMA 2015 SCCR 308).  The evidence led in respect of charge 5 could not corroborate a lack of consent, or, where required, an absence of reasonable belief in consent.  Section 42 and Part 5 of the 2009 Act were silent both on the issue of consent and the matter of reasonable belief of consent or the lack of it.  The fact there was no statutory provision as to consent and reasonable belief did not imply they could be inferred but rather that they were not required. All that was required to prove a section 42 contravention was that an accused intentionally engaged in a sexual activity with or towards a person under 18 whilst in a position of trust. A similar point was made in relation to absence of reasonable belief in consent. No matter what other similarities existed, these were essential issues on which there was no corroboration.  If consent was not mentioned in respect of any offence, it was irrelevant to proof of that offence. Proof of an offence which did not require lack of consent for its commission could not corroborate evidence relating to an offence which did require lack of consent. The case of McA v HMA 2015 JC 27, relied upon by the Crown, could be distinguished as concerning two children under 12, where again no issue of consent was relevant. Evidence in respect of lewd and libidinous practices relating to a girl between the ages of 13 and 16 could not corroborate a charge of rape.  The crimes in question had to have the same requirements relating to a consent or reasonable belief before the doctrine could be applied. The precise elements required to be the same, albeit that an allegation of penile penetration could be corroborated by an allegation of digital penetration, both involving penetration.

 

Submissions for the Crown

[20]      The advocate depute submitted that the fact that the crimes alleged were different would not preclude the operation of the Moorov doctrine. It was well-established that the fact that crimes had a different nomen juris was not a bar to its operation. He referred to the words of the Lord Justice General in Moorov v HMA 1930 JC 68 at 73:

“Before the evidence of single credible witnesses to separate acts can provide material for mutual corroboration the connexion between the separate acts (indicated by their external relation in time, character, or circumstance) must be such as to exhibit them as subordinates in some particular and ascertained unity of intent, project, campaign, or adventure, which lies beyond or behind—but is related to—the separate acts”.

 

[21]      In McMahon v HMA 1996 SLT 1139, the Lord Justice General (Hope) at 1142 referred to the established principle that the same nomen juris does not guarantee the application of Moorov and noted:

“Nor does the fact that the crimes each have a different nomen juris necessarily point against its application.  It is the underlying similarity of conduct as described in the evidence… which must be examined.”

 

[22]      Where crimes had a different nomen juris it was axiomatic to say that they would each have different elements. Once it was accepted that the doctrine could apply to crimes with a different nomen juris it had to follow that it could apply where the essential elements which the Crown had to establish for each crime were different. For example, in relation to a charge of rape, where penetration was an essential element, it was now accepted that such a charge could be corroborated by evidence of conduct towards another complainer falling short of penetration. In MR v HMA 2013 JC 212, the Lord Justice Clerk observed that:

“There is then no rule that what might be perceived as less serious criminal conduct cannot provide corroboration of what is libelled as a more serious crime.  Once that is recognised, it can be seen that the conduct of the appellant in charge (6) (1973) in removing the clothing of his 11 year old niece, lying on top of her and then raping her in the manner libelled may be corroborated by the conduct in charge (4) (1978) of climbing on top of his 16 year old daughter, removing her clothing and placing his private member against her private parts with the stated intention of having intercourse with her. The penetration in charge (6) is sufficiently corroborated by what appears to have been near penetration and an expressed desire to achieve it on charge (4).”

 

[23]      Logically, the doctrine could apply even where the requirements of consent in respect of each offence were different, so long as the evidence was capable of indicating a course of conduct systematically pursued by the accused.  Hence, in McA, the doctrine could be applied between charges of lewd and libidinous conduct under section 5 of the Sexual Offences Act 1976. The court upheld the conviction, despite a ground of appeal that the mens rea for each of the crimes was different. The Crown accepted that consent was irrelevant to a charge under section 42, but that did not mean that the evidence on charge 5 was incapable of providing corroboration for the evidence on charges 1 and 2.

[24]      In this case, the fundamental approach of the appellant was misconceived. It was not appropriate to break down the crime in one charge into its essential elements, then look to see whether the complainer in the second charge spoke to those same elements.  What one looked for were the conventional similarities in time, place and circumstances in the behaviour, such as to demonstrate that the individual incidents were component parts of one course of criminal conduct persistently pursued by the accused.

[25]      The advocate depute addressed the similarities in the charges in this case, but we do not repeat those submissions, since Ms Ogg for the appellant accepted that there were otherwise sufficient similarities for the doctrine to apply. The course of conduct pursued by the appellant consisted of the repeated and prolonged sexual abuse of vulnerable young men over whom the appellant was, or had been, in a position of trust, perpetrated by the use of alcohol and when the complainers were alone with the appellant in his house, as instigated by the appellant.

 

Analysis and decision

[26]      In my view the sheriff erred in concluding that lack of consent was to be implied in a charge under section 42.  The position in relation to section 42 is not the same as that which exists when a provision such as section 17 applies, in which case an individual who comes within the definition of the section is deemed to be incapable of consent. The focus in section 42 is on the factual conditions required for proof of the offence, those being (a) that the complainer is under 18 years of age; and (b) that in relation to that person the accused is in a position of trust as defined in section 43. The question of consent or lack of it is immaterial. It is not the case that lack of consent is implicit. Rather Parliament has decided that where a relationship of trust exists such conduct should constitute an offence regardless of whether the complainer consents or not. Effectively, any consent is invalidated if the conditions in section 42 apply. Thus a complainer may consent but the offence would nevertheless be committed – hence the provision that an offence would not be committed if the parties were married or in a civil partnership, or if there was a sexual relationship between them before the relationship of trust came into existence. Accordingly, the sheriff’s observations in this regard constituted a misdirection, to the materiality of which I will revert later.

[27]      That does not, of course, address the central evidential question in this case, namely whether evidence in respect of a charge where consent, or rather the absence of it, is not relevant may properly be used to corroborate evidence of another complainer in respect of a charge where the absence of consent was a critical issue.

[28]      The short answer to that question is yes. In McMahon v HMA the doctrine was applied as between evidence relating to charges of lewd and libidinous practices and that relating to a charge of assault with intent to rape. Counsel had argued that the offences were of such a different nature that the doctrine of mutual corroboration was not available. The court disagreed, noting that although there was a requirement that the crimes should be “the same in a reasonable sense”, that did not depend upon the nomen juris to be attached to the crimes in question. That the crimes individually may be offences of lewd and libidinous conduct or on the other hand indecent assault, would not necessarily operate against the application of the rule. What one required to consider was whether there was an underlying similarity in the evidence indicating a consistent pattern or course of conduct such that it would be appropriate to consider the evidence of the witnesses as mutually corroborative. Any lingering belief that before the doctrine could apply the crimes averred required to be “the same” was decisively swept away in B v HMA 2009 JC 88. Citing several cases where the doctrine had been applied in relation to charges where the crimes were different, the Lord Justice General (Hamilton) observed that the law had moved on and (para 6) had “..developed to the extent that identity of the crimes charged is not a prerequisite for the application of the doctrine associated with that case”. Rather what was critical was similarity of conduct described in the evidence. As Lord Nimmo Smith noted:

“In McMahon v HM Advocate, Lord Justice-General Hope said (p 1142):

‘It is the underlying similarity of the conduct described in the evidence, not the label which has been attached to it in the indictment, which must be examined in order to see whether the rule can be applied.’

This passage assists in understanding what was meant by the expression ‘underlying unity’ which was used by Lord Justice-General Clyde in Moorov (p 73)”

The charges to which the doctrine was applied in that case were: lewd and libidinous practices; sexually motivated breach of the peace; and public indecency. The former charges obviously related to children, the latter was directed towards an adult. The fact that it was a central element of the last mentioned charge that it be public, did not prevent the operation of Moorov in relation to charges of lewd and libidinous practices which had no such public element to them. To accept the argument advanced for the appellant it would in my view be necessary to conclude that these cases had been wrongly decided. It would certainly be necessary to conclude that PM v Jessop 1989 SCCR 324, in which evidence in a charge of sodomy – penetration essential – was corroborative of evidence of an attempted sodomy, where penetration is not an essential element for proof. The same would have to be said of McA v HMA where the doctrine was applied as between three charges of lewd and libidinous practices and one of rape. The observation in McA v HMA that there is no rule that what might be perceived to be a less serious charge cannot corroborate what may be considered as a more serious one accords with the approach taken in PM V Jessop as between an attempt and a completed act, despite the fact that the essential requirements for each offence were different. In McA v HMA the court noted that the fact that some of the conduct alleged involved penetration while others did not would not lead to the conclusion that they could not be part of the one course of conduct. The matter was also considered in M v HMA 2011 SCCR 47 which involved a charge of attempted rape, and one of rape involving allegations of repeated penetration. The Lord Justice General (Hamilton), giving the opinion of the court, observed that although the solicitor advocate for the appellant had asked the court to convene a larger court to reconsider PM v Jessop:

“He was, however, unable to point to any authority which casts doubt on the soundness of that decision; nor could he demonstrate any flaw in its rationale. He accepted that, insofar as the law had developed since 1989, it had, at least in the case of child victims, tended to extend rather than to restrict the Moorov doctrine; see P v HM Advocate, McMahon v HM Advocate and B v HM Advocate.

[5]

We declined to remit the case to a larger court. The decision in P v HM Advocate appears to us to be clearly sound and in point. We accordingly refused the appeal, intimating that we would give our reasons later. The need for a written judgment arises only from the circumstance that the trial judge appears to have entertained a doubt on the matter. He refers in his report to an unnamed case in which he understood that in similar circumstances the Crown had conceded in an appeal that evidence of an attempt could not corroborate evidence of a completed act. The case referred to has not been traced and we are accordingly unable to comment on it. The advocate depute, who resisted the appeal, assured us that the Crown's position was that, in circumstances such as the present, evidence of attempted rape could corroborate evidence of rape. That is clearly correct.”

 

[29]      In the full-bench case of MR v HMA  the court acknowledged the correctness of the observations of the Lord Justice General in B v HMA, noting that the law had indeed moved on, and that it had:

“..done so in an attempt to keep pace with modern societal understanding of sexual and other conduct and, in particular, what are perceived to be characteristic links between the perpetration of different types of sexual and physical abuse especially, but not exclusively, of children and young persons. The court today will not proceed upon outdated perceptions, such as those of Lord Sands (at p 89) on the connection between different forms of conduct by errant husbands, but upon its own developing knowledge of sexual and other behaviour and how one type of illegal activity can often be intimately connected with other types of different, but still illegal, acts. Sexual and physical abuse of different kinds perpetrated by one person but occurring within the same family unit, extended or otherwise, is one model of this type.”

 

 

[30]      The court explained that

“What the court is looking for are the conventional similarities in time, place and circumstances in the behaviour proved in terms of the libel (see S v HM Advocate, Lord MacLean, delivering the opinion of the court, at para 10) such as demonstrate that the individual incidents are component parts of one course of criminal conduct persistently pursued by the accused (Ogg v HM Advocate, LJC (Aitchison) at p 158; K v HM Advocate, LJC (Gill) at para 10). Whether these similarities exist will often be a question of fact and degree requiring, in a solemn case, assessment by the jury (Reynolds v HM Advocate, LJG (Hope), delivering the opinion of the court at p 508) under proper direction of the trial judge.”

 

[31]      The tenor of all these authorities is destructive of Ms Ogg’s argument in the present case. The search is for evidence indicative of an underlying similarity between the circumstances of the offences such as to enable the conclusion to be drawn that there is a course of conduct which was being persisted in by the appellant. As has repeatedly been said, it is a question of fact and degree whether the nature of the evidence is such that it would be legitimate to draw the inference that the incidents are indeed components in one course of criminal conduct (see AS v HMA 2015 SCCR 62 para 9). As was explained by Lord Brodie in KH v HMA 2015 SCCR 242 (para 27)

“The existence of any underlying course of conduct will usually have to be inferred from the evidence led in support of the individual charges, but more is required than simply an indication of a general disposition to commit a particular sort of offence: Ogg v HM Advocate at p.158. As the Lord Justice Clerk (Carloway) put it in R v HM Advocate at para.20:

"What the court is looking for are the conventional similarities in time, place and circumstances in the behaviour proved in terms of the libel ... such as demonstrate that the individual incidents are component parts of one course of criminal conduct persistently pursued by the accused ... whether these similarities exist will often be a question of fact and degree requiring, in a solemn case, assessment by the jury ... under proper direction of the trial judge."

 

However, in any particular trial it may not be entirely a matter of inference; other evidence heard by the jury may be relevant to establish an underlying course of conduct. In K v HM Advocate, for example, evidence of what could be interpreted as an acknowledgement by the accused that he was engaged in a course of conduct was determinative. Moreover, in relation to the charges on the indictment, while what is looked for are similarities pointing to an underlying unity of intent or purpose, that may be inferred even when the offences charged are not exactly the same: McMahon v HM Advocate at p.1142A; B v HM Advocate at para.6. As appears from R v HM Advocate at paras. 17 and 21:

"[O]ne type of illegal activity can be intimately connected with other types of different, but still illegal, acts. Sexual and physical abuse of different kinds perpetrated by one person but occurring within the same family unit, extended or otherwise, is one model of this type ... There is then no rule that what might be perceived as less serious criminal conduct cannot prove corroboration of what is libelled as a more serious crime."

 

[32]      In McA v HMA the court cautioned against taking a compartmentalised approach when considering the application of the doctrine. In my view, the difficulty which arose in the present case came about by virtue of the fact that those appearing at the trial took such an approach, and misled the sheriff into doing so, hence the misdirection relating to the role of consent in section 42.

[33]      As the Lord Justice General (Clyde) pointed out in Moorov:

“The question in the present case belongs to the department of circumstantial evidence. This consideration is vital to the whole matter; and I do not think the real question in the case can be understood or appreciated otherwise.”

 

[34]      If one bears that in mind, it is perhaps misleading to talk about a “charge” being corroborated: what is being corroborated is the evidence of a witness in relation to a charge. The whole point about the doctrine is that the commission of each crime is only spoken to by one witness, the search is not for corroboration of the individual elements of the crime spoken to by an individual witness, but whether the nature of the evidence spoken to by the other witness is indicative of that underlying unity of purpose behind the accused’s acting which makes it appropriate to treat the several incidents as part of the one course of conduct. In the present case the sheriff was entirely correct to say (p31) that:

“In looking at the charges it’s the underlying similarity of the conduct which is described by the witnesses, which you have to consider in deciding whether the doctrine applies. It does not matter, it does not matter that the charges have different names or are more or less serious.”

 

He was also correct when he said (pp32/33) that the Crown were relying on the evidence of the second complainer to “corroborate the account of the first complainer”

[35]      That does not mean that the evidence of the second complainer would require to address all essential elements of the charge which related to the first complainer: rather it simply means that if the evidence of similarity is sufficient for the application of the doctrine, his different account of what happened to him will suffice to corroborate the account of the first complainer, and so allow the several charges to be proved by the evidence of one witness to each. 

[36]      In such circumstances, where the offence is one, such as a section 3 offence, which has certain essential elements for its commission, the account of the complainer speaking to that charge would require to provide evidence from which all three elements could be established. Once he has given such evidence, however, his account may be corroborated by the evidence of the second complainer, without any requirement for the second complainer’s evidence to cover exactly the same essential elements. As long as both witnesses can be viewed as credible and reliable, and that they are satisfied, having been properly directed, that the doctrine can apply, the jury may convict of both charges.  In the present case the first complainer did speak to all three elements. It was not suggested that the similarities in the evidence of the two complainers was not otherwise sufficient for the Moorov doctrine to apply.  Indeed, Miss Ogg frankly conceded that but for the issue relating to consent, she would not have been presenting this appeal. In my view she was correct to say that: there were compelling features present which were capable of demonstrating that each offence was part of a course of criminal conduct persistently pursued by the appellant.

[37]      The remaining issue to consider is whether the misdirection noted at para 26 and 32 above was a material one. The advocate depute suggested that it was not, on the view that by suggesting a requirement for specific corroboration of an individual element of a charge where none was in fact needed, the misdirection created an unnecessary hurdle for the crown to overcome. However, I consider that to be rather a simplistic way of looking at the matter, and one which does not place the misdirection in the proper context of the trial to which it related.  All along the appellant had indicated his intention to plead guilty to the charge relating to DA; his plea was refused only for evidential reasons, and ultimately accepted after DA’s evidence and without DA being cross-examined. The critical issues in the trial were therefore whether JW had consented to the conduct alleged and whether there was an absence of reasonable belief on the part of the appellant that JW was consenting, against a background of evidence from him that on a number of other occasions he had indeed consented to sexual activity with the appellant.  As we have noted, the sheriff erred in taking a compartmentalised approach to the issue of corroboration. He was correct to advise the jury as to the 3 elements of which proof was required to establish charges 1 and 2, but was in error in saying that where each of those elements had been spoken to by the complainer they required individually to be corroborated. That was the cumulative effect of the directions given by him at p 21, lines 10-18; p23, lines 1-8; p24, lines 21-25; p26, lines 5-16; and p27, lines 12-24.  Thus, when he came to give his detailed directions on the application of Moorov, he had already started on the wrong foot. As a result of the misdirection, the jury were effectively given the impression that an element of evidence on which it was critical for JW to be believed was corroborated. The jury might well therefor have examined this aspect of the evidence of JW less critically, and been more easily persuaded to accept his evidence that he had not consented, or to conclude that the appellant had no reasonable belief in consent. The direction impacted upon the central issues in dispute in the trial and in my view constituted a material misdirection and a miscarriage of justice. I would accordingly allow the appeal, in consequence of which the sentence imposed upon the appellant would require re-consideration.

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 44

HCA/2015/002281/XC

 

Lady Dorrian

Lord Bracadale

Lord Malcolm

OPINION OF LORD BRACADALE

in

APPEAL AGAINST CONVICTION

by

C W

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  Ogg, sol adv; McCusker McElroy & Gallanagh, Paisley

Respondent:  Erroch, AD;  Crown Agent

6 May 2016

[38]      I agree with your ladyship in the chair that on account of its potential effects the misdirection by the sheriff was material, resulting in a miscarriage of justice.  Accordingly, I agree that the appeal should be allowed.  In addition, I fully agree with the analysis in paragraphs [27] to [36] of your ladyship’s opinion in relation to the requirements of corroboration in a case of this kind. 

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 44

HCA/2015/002281/XC

 

Lady Dorrian

Lord Bracadale

Lord Malcolm

OPINION OF LORD MALCOLM

in

APPEAL AGAINST CONVICTION

by

C W

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  Ogg, sol adv;  McCusker McElroy & Gallanagh, Paisley

Respondent:  Erroch, AD;  Crown Agent

6 May 2016

[39]      The question raised in this appeal is whether the jury was entitled to treat the undisputed evidence of the complainer in charge 5 (DA), as corroborative of the evidence of the complainer in charges 1 and 2 (JW).  There is a related issue concerning an alleged misdirection of the jury based on an erroneous understanding as to section 42 of the Sexual Offences (Scotland) Act 2009 (ground of appeal 2).  JW’s evidence in support of the charges of indecent assault and breach of section 3 of the 2009 Act can be summarised as follows.  He had been in a children’s home.  When between the ages of 16/17½ he was introduced to the appellant by the social work department.  There were sexual relations between JW and the appellant until JW was about 24 years of age, in that the appellant would masturbate JW and place JW’s penis in his mouth.  This occurred with JW’s consent.  Money changed hands.  Occasionally this happened in the presence of both the appellant and his partner, again for payment.  However, while dates and the number of occasions could not be specified, and contrary to “the ground rules”, on occasions the appellant did this when JW was drunk and/or asleep ‑ though he would stop when told to do so.  JW approached the police in 2013 after learning that someone else had made a complaint about the appellant.  He continued to see the appellant and have consensual sexual contact with him until they stopped seeing each other in 2014.

[40]      DA gave unchallenged evidence in support of the charge of breach of section 42 of the Act which can be summarised as follows.  The appellant had been his school maths teacher, and then his tutor when DA was at college.  On 3/4 occasions in May 2014, when DA was 15 years of age, the appellant took him to his house, gave him alcohol, and then indulged in the libelled activities, which bear striking similarities to those involving JW.  Before this the appellant had built up a relationship with DA by taking him for drives in his car, discussing his sexuality, and getting him drunk.  The sexual activity had been started by the appellant, otherwise it would not have occurred.  DA trusted the appellant, and thought he had been there to help him.  There was no cross‑examination of DA’s evidence.

[41]      The appellant then pled guilty to charge 5.  In his evidence he explained that he had always been willing to plead guilty to the charge involving DA.  (For obvious reasons the Crown wished to lead DA’s evidence before the jury.)  The appellant said that on many occasions sexual contact with JW occurred, but always on a consensual basis.

[42]      The sheriff rejected a submission of no case to answer in respect of charges 1 and 2, and in due course the jury convicted on both charges, which by then were the only matters upon which a verdict was required.

[43]      The nub of the no case to answer submission, and the primary ground of appeal in this court, was that the Crown had to prove that, to the knowledge of the appellant, the sexual activity took place without JW’s consent.  By contrast, charge 5 was of a breach of section 42, in respect of which the issue of consent or no consent was of no relevance.  There had been no suggestion that DA did not consent to sexual contact, thus his evidence could not provide the corroboration necessary for a guilty verdict on charges 1 and 2.

[44]      Before the sheriff, the Crown submitted that JW’s evidence that on occasions he did not consent to sexual conduct could be corroborated by the evidence of DA of similar actions of a similar sexual nature against a person not in a position to give valid (or effective) consent.  In his ruling the sheriff held that, in respect of DA, his lack of consent was “implied by law”.  It followed that if the jury believed JW, his lack of consent was corroborated by the lack of consent implied in charge 5.

[45]      The sheriff’s view was that section 42 is predicated upon a policy that lack of consent is a necessary assumption;  the victim being unable to give consent because of the position of trust between him and the perpetrator.  This view of the law, which, as your Ladyship in the chair has observed, is an erroneous view of the law, was reflected in the sheriff’s charge to the jury.  The sheriff said that, being too young to consent:

“that lack of consent on the part of DA allows you to find corroboration of the lack of consent of JW, because (the appellant) had been told on certain occasions that JW was not consenting, and further would not have any reasonable belief… that is (the appellant) would not have any reasonable belief that JW was consenting.”

 

Later the jury members were told that DA’s lack of consent is assumed.  The sheriff advised that:

“there is enough evidence in law that the crimes alleged are sufficiently close in time, character, place and commission, and circumstance, for the (Moorov) rule to apply.”

 

It was for the jury to decide whether the necessary link had been established, “especially for the acts by the accused with JW were consensual, or not?”(sic) (page 37 of the charge).  The sheriff continued:

“If they were not consensual then there would be corroboration found by you of JW’s account by the evidence and statutory … that’s from statute … implied lack of consent of DA in charge 5.”

 

[46]      Leaving aside the more general question at issue in this appeal, I regard these directions as misdirections, being based upon an erroneous approach to section 42.  The result was that the jury were told that they had to proceed on the basis that DA was not consenting to the appellant’s conduct.  (In his comment about there being “enough evidence” as to time, character, etc, the sheriff was dangerously close to trespassing on the jury’s decision‑making territory ‑ but it is not necessary to pursue this point, which in any event was not the subject of a specific challenge.)

[47]      Reverting to the first ground of appeal, namely that DA’s evidence simply could not provide the necessary corroboration of JW’s account of indecent assault and a breach of section 3 of the 2009 Act, the Crown’s submission to this court was that the underlying rationale for an offence under section 42 is not crucial, because there were sufficient similarities between the respective accounts for the rule in Moorov v HMA 1930 JC 68, to be applied by the jury.  In respect of both complainers the appellant was in a position of trust.  The complainers were of a similar age:  DA was 15 ‑ JW spoke to sexual conduct when he was 16/17 through to 24.  The offences occurred in the appellant’s home.  Drink was involved in both cases.  The nature of the sexual conduct was much the same.  The period libelled in charges 1 and 2 ended less than two years before the events concerning DA.  It followed that any misdirection of the jury did not lead to a miscarriage of justice because, even without an implied absence of consent approach to section 42, the necessary corroboration could be found in DA’s evidence.

[48]      The reply on behalf of the appellant was that the factual similarities, including the nature of the sexual conduct, are insufficient when only JW spoke to an absence of consent on his part.

 

Discussion
[49]      The Crown contends that there were sufficient similarities, notwithstanding the lack of evidence that the appellant took advantage of an unwilling DA.  It may be important to remember that the touchstone for the application of the Moorov doctrine is not confined to a search for and assessment of similarities.  Despite all the twists and turns over the years, the fundamental test has remained much the same as laid down in Moorov.  In the recent five judge decision in MR v HMA 2013 JC 212, it was described as follows (at paragraph 20):

“What the court is looking for are the conventional similarities in time, place and circumstances in the behaviour proved in terms of the libel … such as demonstrate that the individual incidents are component parts of one course of criminal conduct persistently pursued by the accused…”

 

[50]      Though this is a unitary test, it can be seen as having two parts:  firstly, are there the similarities mentioned, and secondly, are they component parts of one course of criminal conduct systematically pursued by the accused?  Usually, the focus has been on the first part of the test, no doubt on the thinking that the second part is covered if and when the necessary similarities are identified.  However, sometimes a subtle shift occurs in that the question posed and answered is, can the charges be described as examples of the same crime in a reasonable sense of the term?  If an affirmative answer to that question is treated as sufficient for application of the rule of mutual corroboration, an important part of the legal test is side‑stepped.  A possible explanation for the difference of opinion in B v HMA 2009 JC 88, is that the majority equiparated the “underlying unity” mentioned by Lord Justice General Clyde in Moorov with similarities in time, place and circumstances, plus similarities in the conduct described in the evidence;  whereas Lord Eassie looked beyond these to a search for “a single unified course of criminal conduct.”  His Lordship described the classic case of separate attempts to suborn witnesses in a forthcoming trial.  This was to be distinguished from cases where, notwithstanding the conventional similarities, there are differences, for example as to purpose, which prevent the application of the doctrine‑ see paragraph 31.  (It can be noted that at paragraph 18 in MR, the court referred to the need for an “underlying unity of purpose.”)  Lord Eassie required “similarity in the essence of the particular criminality of the conduct in issue.”

[51]      That said, all such phrases still leave room for debate as to the correct judgment to be made in a particular case.  These are not hard‑edged rules. One could agree with the outcome of the case in B, while applying the same process of reasoning as that adopted by Lord Eassie, perhaps by reference to the developments in modern thinking mentioned by the then Lord Justice Clerk (Carloway) in MR at paragraph 17, and the example of “sexual and physical abuse of different kinds perpetrated by one person but occurring within the same family unit, extended or otherwise…”.  Whatever else, it is clear that the law has moved away from outdated rigid rules, such as identity of nomen juris and that a lesser crime cannot corroborate a greater one.  Such restrictions excluded the application of the doctrine before one even approached the first hurdle.  Nonetheless, the fact remains that in MR the court reaffirmed the need for the identified similarities to demonstrate a systematic course of criminal conduct;  or, as it was put by Lord Justice General Clyde in Moorov at page 73, that they are:

“subordinates in some particular and ascertained unity of intent, project, campaign or adventure, which lies beyond or behind ‑ but is related to the separate acts.”

 

The Lord Justice Clerk (Alness) talked of “a nexis which binds the alleged crimes together”, having earlier referred to Dickson’s “unity of character” (pages 79/80).  In short, it is not enough simply to identify the alleged crimes as being the same in any reasonable sense of the term;  something more is required.  Were it otherwise, the second part of the test as described in MR would be redundant, and one would be close to a “similar fact” evidential rule.

[52]      A recent example of the court refusing to apply the Moorov doctrine notwithstanding “striking similarities” in the appellant’s conduct towards each of the complainers is to be found in Pringle v Services 2011 SCCR 97.  Having begun its consideration by a reference to Ogg v HMA 1938 JC 152, the court said:

“… the much more difficult question is whether the high test laid down by Lord Justice Clerk Aitchison ‑ that the court be satisfied as ‘a reasonable and practical certainty’ that the offences are instances of one course of conduct pursued by the same person - can be met in this case.”  (paragraph 19)

 

The court reminded itself that the Moorov doctrine should be applied:

“with caution, to guard against the danger of evidence demonstrating the general disposition to commit a particular kind of offence being treated as corroboration.”

 

The decisive factors in that case were the time gaps between the various incidents.  Thus, even though the crimes were the same in any reasonable sense of the term, and their particular circumstances were all very similar (pupils aged 14/15 assaulted on outward bound courses by their teacher), the court was not persuaded that the evidence concerned events which “formed part of a course of conduct which was systematically pursued by (the appellant)”.

[53]      Reverting to the circumstances of the present case, many will need little persuasion that if someone is prepared to groom a 15 year old, give him alcohol, and then take advantage of him in the way spoken to by DA, there is every likelihood that he will be prepared to do the same in respect of an intoxicated JW.  The appellant pled guilty to charge 5, so the view might be taken that clearly he is someone who is prepared to commit sexual offences of this general type.  However, this is exactly the kind of thinking which judges have been anxious to warn against.  In Moorov it was stated that the rule requiring corroboration guards against the “twin dangers” of (a)  that the crime may not have been committed, and (b)  that if it was, it was not committed by the accused (the former being the more pertinent here).  The problem is that, as yet our law has not developed a sufficiently clear and certain test for distinguishing between a case of “a general disposition to commit a particular kind of offence” and the “underlying unity of purpose” mentioned earlier.

[54]      The sheriff erred in adopting an approach based upon a statutory implied absence of consent on the part of DA.  However, there are striking similarities in the two complainers’ accounts, not least regarding the common involvement of alcohol.  A juror might well infer that it would disinhibit DA, making it easier for the appellant to abuse him.  In the case of the older JW, no doubt more alcohol would have been required, but, other things being equal, one can understand a view that it was acceptable for the jury to be left to decide whether this, allied to similarities in the behaviour complained of, plus the “befriending” backgrounds, was sufficient for application of the Moorov doctrine and would entitle the jury to convict on the remaining charges.  (Given the plea to charge 5, strictly this is not a case of mutual corroboration.)

[55]      It is often mentioned that great caution is required when considering the doctrine, and this even more so when there are only two complainers.  It is obvious that a larger number of credible complainers will make it easier to identify a course of conduct systematically pursued, and vice versa.  However there have been decisions on appeal when the court has appeared to treat no case to answer submissions in a Moorov case no differently from all others, employing a standard “take the evidence at the highest for the Crown” approach.  I find this difficult to reconcile with a direction to the jury that they must approach Moorov with care.  Be that as it may, the sheriff did direct the jury to adopt a cautious approach.  Had he advised them to consider the issues in the context of the kind of considerations outlined in the preceding paragraph, then all may have been well.  However, the sheriff did not do so.  He adopted an erroneous approach.  He told the jury that they had to assume that DA did not consent, and that the appellant could be taken to have appreciated this.  On any view, this made it easier for the jury to find corroboration for JW’s account in that of DA.  A correctly framed charge would not have misled the jury in this respect.  While the same ultimate decision might have been reached by the jury, that cannot be known, nor confidently predicted.  For these reasons I would uphold the second ground of appeal, which proceeds on the basis that there has been a miscarriage of justice arising from a misdirection of the jury.