Sufficiency and Corroboration

Question 1

What is sufficiency?

Answer 1

Sufficiency relates to whether there is sufficient evidence to prove a certain fact.

Question 2

What is corroboration?

Answer 2

Corroboration is a species of sufficiency.

The corroboration rule is unique to Scots law. However a Bill which may abolish corroboration may pass in the near future.

Corroboration means that there must be two independent sources of evidence for every crucial fact.

[The types of sources that might be relied on will vary. Most often there will be a witness and another witness or a secondary sort of fact.]

Question 3

What is the rationale for corroboration?

Answer 3

To make sure that every fact that needs to be established is verified by more than one source.

“No matter how trivial the offence and how high soever the credit and character of the witness, still our law is averse to rely on his single word, in any enquiry which may affect the person, liberty and fame of his neighbour; and rather than run the risk of such an error, a risk which does not hold when there is a concurrence of testimonies, it is willing that the guilty should escape.” (David Hume, Commentaries on the Law of Scotland, Respecting Crimes, 4th edn (1844) vol ii, 383)

Question 4

Who decides whether there is corroboration?

Answer 4

Whether there is corroboration is a question of law, thus it is a question for the judge and not the jury.

Question 5

What is the outcome of successful corroboration?

Answer 5

If corroboration is in existence then in theory the court is able to convict the accused (it may be still the case that the prosecution have not proved the case beyond reasonable doubt, but without corroboration it is impossible to convict).

Where there is corroboration, there is a sufficiency of evidence. This means that the court may convict, but it is not required to – it may still conclude that the case has not been proven beyond a reasonable doubt. But if there is no sufficiency, there can be no conviction.

Question 6

When is corroboration required in civil matters?

Answer 6

Corroboration is no longer required in civil matters: Civil Evidence (Scotland) Act 1988 s 1, although note that certain family actions require evidence from a person who is not one of the (alleged) parties to the marriage or civil partnership: section 8 of the 1988 Act.

Question 7

When is corroboration required in criminal matters?

Answer 7

Corroboration is required to prove all criminal offences, unless statute provides otherwise.

Question 8

When does statute provide otherwise?

Answer 8

Walkers on Evidence, 3rd edn para 5.5.1 n 72 lists some examples:
⁃ Game (Scotland) Act 1832 ss 1, 2, 6;
⁃ Poaching Prevention Act 1862 s 3;
⁃ Wildlife and Countryside Act 1981 s 19A;
⁃ Road Traffic Offenders Act 1988 s 21;
⁃ Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003 ss 9, 10, 13, 14, 15, 16, 17, 17A, 17B, 18, 19, 20, 23, 31, 33, 38, 51A – can you see a pattern?

Question 9

Are the defence required to prove criminal offences with corroborated evidence?

Answer 9

Although the law of evidence may in some circumstances place a burden of proof on the defence in a criminal case, the defence are never required to prove anything by corroborated evidence.

Question 10

*Gillespie v Macmillan 1957 JC 31

Answer 10

It is not enough to have more than a “single witness”: cf *Gillespie v Macmillan 1957 JC 31 – theoretically authoritative (a Full Bench) but universally condemned: see e.g. W A Wilson, “The logic of corroboration” (1960) 76 SL Rev 101;

Question 11

Smith v Lees 1997 JC 73 at 103-104 per Lord McCluskey.

Answer 11

?

Question 12

What are crucial facts?

Answer 12

Crucial facts must be proven by corroborated evidence. These are the facts which make up the definition of the relevant crime

Question 13

*Smith v Lees 1997 JC 73 at 79 per Lord Justice-General Rodger

Answer 13

(note that he is concerned with the definition of rape as it stood prior to Lord Advocate’s Reference (No 1 of 2001) 2002 SLT 466:
“…there are certain facts which can be established only by corroborated evidence. These facts are variously described as ‘fundamental’ or ‘crucial’ or ‘essential’ facts or as the facta probanda, the facts which require to be proved. They are the elements which need to be established if the accused is to be found guilty of the crime in question–so, in rape, for instance, the Crown requires to prove (1) penetration of the complainer’s vagina by (2) the accused’s private member, (3) forcibly and (4) without the complainer’s consent. These four fundamental facts require to be established by corroborated evidence.”

Question 14

Yates v HM Advocate 1977

Answer 14

NB Not all facts in dispute are crucial facts

⁃ The accused was charged with raping a 16 year old girl and threatening her with a knife while doing so. There was no corroboration that he had a knife. The defence tried to argue that this lack of corroboration should have meant that the jury was instructed to remove any reference to the knife in delivering their verdict.
⁃ The High Court held that the use of the knife wasn’t a separate crime - it wasn’t an aggravation to the crime - it was simply the way the crime was carried out. Thus it contributed to the fact that the accused had used force but it wasn’t something which would preclude a jury from coming to the fact that he was guilty. Thus it wasn’t a crucial fact and thus corroboration was not required.

Question 15

What is the outcome if a crucial fact is not proven by corroborated evidence?

Answer 15

If even one crucial fact is not proven by corroborated evidence, there can be no conviction: see e.g. Lockwood v Walker 1910.

Complications to the general rule
⁃ This sounds very straightforward but sometimes because of the order of proceedings things can get a little complex. For example there are provisions in the Criminal Procedure (S) Act 1995 (ss 97 and 160) which allow the defence to object to a case that has been brought against their client on the basis that there is ‘no case to answer’ - this essentially means that at the end of the prosecution case, if the defence thinks that there is insufficient evidence at this point then they can argue that there is no case to answer. If this is successful then the accused will be acquitted. The reason this is important is that sometimes on appeal it might be decided that actually a plea that there was ‘no case to answer’ which was repelled at first instance should actually have been allowed and in this case given that the trial went ahead there can be the possibility that even though there was an insufficiency of evidence at the start (and thus the accused should have been admitted), when more evidence comes out during the trial the accused may be convicted. But is this right? Should the accused’s conviction be quashed on the basis that they should have been acquitted earlier? This actually happened in the following case:
⁃ *Gonshaw v Bamber 2004

Question 16

*Gonshaw v Bamber 2004

Answer 16

⁃ The accused was charged with intentionally disrupting a golden eagle while it was building a nest which is a criminal offence. The accused argued that there was insufficient evidence to identify him as the person who was meant to have carried out this offence so there was no case to answer. This objection was objected so the case went ahead. The accused went on to incriminate himself and he was then convicted. But on appeal against the conviction the court reached the conclusion that the Sheriff had been wrong to reject the plea of no case to answer, so the question for the court was, given this error by the sheriff, had there been a miscarriage of justice overall (i.e. since the accused supplied extra evidence for the prosecution after the point at which, in hindsight, the case should have been stopped and he should have been acquitted)?
⁃ The court held that the effect of the sheriff’s mistake was that the accused had been wrongly deprived of an acquittal and so this amounted to a miscarriage of justice and his appeal was allowed.

Question 17

Criminal Procedure (Scotland) Act 1995 s 107A

Answer 17

NB The prosecutor now has a right to appeal against a no case to answer submission being upheld

Criminal Procedure (Scotland) Act 1995 s 107A, as inserted by the Criminal Justice and Licensing (Scotland) Act 2010 s 74.

Question 18

Does corroborative evidence have to be directly incriminating?

Answer 18

Corroborative evidence need not be[ It might be the case that it is though.] directly incriminating to be corroborative. Corroborative evidence is “evidence which supports or confirms the direct evidence of a witness”

Question 19

Fox v HM Advocate 1998

Answer 19

per Lord Justice General Rodger:
⁃ The accused was tried for clandestine injury. The circumstances were that the complainer had been at a party and become drunk and had sex with one man in the bathroom and then later was put to bed by him. She woke up later to another man having sex with her. She told him to stop and he did. At the trial the accused admitted having sex with the complainer but he claimed she had been conscious and consenting until she realised he was a different man than the one she’d had sex with in the bathroom. During the trial the prosecution relied on the complainer’s evidence of her distress to corroborate the case.
⁃ The accused was convicted. On appeal the accused argued that in order to be corroborative evidence the evidence must be more consistent with the complainer’s account of what happened than with any other explanation of her distress. The court held that this was not necessary - it isn’t necessary that this evidence should be more consistent with the complainer’s account than any other account so long as the corroborative evidence was independent and confirmed or supported the complainer’s direct evidence.
⁃ [NB in making this decision the court was overruling the earlier case of Mackie v HM Advocate 1994 in which it was held that corroborative evidence must be more consistent with the direct evidence than any other account.]

Question 20

Little v HM Advocate 1983 JC 16

Answer 20

“direct evidence” isn’t actually required – a conviction on circumstantial evidence alone is possible

Question 21

What is identification?

Answer 21

Identification is one of the crucial facts in conviction, so corroboration is necessary.

Question 22

How can identification be corroborated and what types of problems may arise?

Answer 22

The general position is that if there is an “emphatic positive identification” by one person then very little else is required to corroborate this

Question 23

Ralston v HM Advocate 1987

Answer 23

⁃ The accused was found guilty of assault with intent to rob. He appealed against the conviction saying that there had been insufficient evidence to identify him as the perpetrator. The evidence which there was against him by way of identification was one positive ID and another witness was able to say during an identification parade that he resembled the attacker and a third person stated that he was probably the attacker. This evidence was deemed sufficient to corroborate, the court held that: when there is an emphatic positive ID little else is required to corroborate.

Question 24

Mair v HMA 1997

Answer 24

⁃ Accused tried for assault and robbery and the evidence relating to identification was that the police had an identification from three different complainers. On the day after the robbery had taken place the police showed the complainers two sets of photographs in order to try and get them to identify the accused. One of the complainers identified the accused as there attacker but the other two did not do so. But then at the trial the complainer who identified the accused and one of the other complainer’s stated that they had no doubt that the accused was their attacker and they gave descriptions of the attacker which were broadly consistent with those given by the third complainer (so there was a slightly different course of events at the trial).
⁃ The judge told the jury that the third complainer’s description was able to corroborate either of the two complainer’s who had identified the accused at the trial. The accused was convicted.
⁃ The accused appealed on the basis there had been a misdirection. But on appeal, the court held that where there has been positive identification by one witness this can be corroborated by other evidence which is consistent with the identification and the third complainer’s description had been consistent with this, thus the conviction was upheld.
⁃ [The following quote is a description by the third complainer which is extremely vague - it shows how little is required to corroborate an emphatic positive identification.
⁃ “Miss Ferguson did not make a positive identification at the identification parade. She indicated in court that she would not be able to recognise the man. She said he was young, in his mid-20s and had light coloured hair. In cross examination she said that she was not very good at ages and that it was just a guess. She said the man had been taller than she but not much taller, and she was 5 feet 1 or 2 inches. He was just a few inches taller. He did have a large nose. She had not noticed anything unusual about his hands and arms, and she could not recall if she had said that the man had had freckles.”]

Question 25

What is required to corroborate a confession?

Answer 25

It has been said that “very little” is required to corroborate an “unequivocal confession” (Hartley v HM Advocate 1979 SLT 26), but that is generally now regarded as going too far. A “sufficient independent check” is required to corroborate a confession:

Question 26

*Meredith v Lees 1992

Answer 26

⁃ The accused was charged with lewd, indecent and libidinous practices towards his niece who was very young at the time - only 14 years old. The accused had confessed to some of these acts and the young niece gave evidence that he had touched her on the leg and he had lain down on her. The sheriff held that when there has been an unequivocal confession little else is required by way of corroboration. The accused appealed against this conviction on the basis that there was insufficient evidence to corroborate his confession.
⁃ On appeal the High Court held that when there has been an unequivocal confession, the corroborative evidence must provide a “sufficient independent check”. In this case the niece’s testimony was deemed to be sufficient to provide a sufficient independent check so the appeal was refused.

Question 27

What are the special means of providing corroboration?

Answer 27

The courts have developed a number of distinct doctrines allowing corroboration to be found in cases which would otherwise be difficult to prove (and where such a failure might bring the criminal justice system into disrepute). These are not “exceptions” to the corroboration rule, although they are sometimes – wrongly – thought of as such.

1) Special knowledge confessions
2) Distress as corroboration
3) Moorov doctrine
4) The Howden doctrine

Question 28

What are special knowledge confessions?

Answer 28

This is where the accused confesses to the crime and in doing so he or she demonstrates special knowledge[ I.e. something that someone who didn’t commit the crime wouldn’t know.] of the circumstances that surround the crime. A confession by the accused which demonstrates “special knowledge” may be corroborated by proof that this knowledge was true.
⁃ The doctrine is normally[ But it can be seen much further back: e.g. Alison, Practice of the Criminal Law of Scotland (1833) 580.] traced back to *Manuel v HM Advocate 1958.

Question 29

*Manuel v HM Advocate 1958

Answer 29

⁃ The accused had been tried for murder. In relation to one of the charges the accused had given a statement which mentioned having disposed of a body and one of the victim’s shoes in a particular field. After he said this the police went to the field and the accused went with them and pointed out the places that he’d buried the body and the shoe, and this was exactly where the police found these items. It was held that the actions of the accused corroborated his confession, and since there was no evidence that the confession was induced, this evidence was admissible.

Question 30

Wilson v McAughey 1982

Answer 30

*Rule: It is not necessary that the “special knowledge” be something which the police did not themselves know

The respondent was charged with contravening a provision of the Criminal Justice (S) Act. The only incriminating evidence against him was his admission. At first instance the sheriff acquitted on the ground that his confession lacked corroboration. The procurator fiscal referred this case to the High Court who held that the details of the offence could only have been known by the person who was present at the time and this in itself was sufficient to corroborate - so this was an example of a special knowledge confession.

Question 31

May the special knowledge be something in the public domain?

Answer 31

Wilson v HM Advocate 1987:
⁃ The appellants were convicted of attempted rape and murder after having voluntarily confessed to the crimes and given details of the circumstances that arose. At the close of the Crown case there was an application to have the case dismissed on the grounds of insufficient evidence (no case to answer) on the basis that the details of the offence were within the public domain - the defence tried to argue if the knowledge was within the public domain then how could it amount to special knowledge.
⁃ The court rejected this no case to answer submission and held that the appellant’s had given powerful motives to having carried out the crime - although the information was in the public domain, the fact they had a particularly strong motive for carrying out the offence and the fact they knew the details of what happened, this constituted special knowledge and could thus corroborate.

Question 32

What is required for the special confessions doctrine to operate?

Answer 32

For this doctrine to operate, the confession itself must be spoken to by two witnesses:
⁃ Low v HM Advocate 1994

Question 33

How does distress as corroboration work?

Answer 33

NB this is often used in tricky situations like in rape cases where corroboration is difficult - but since the definition of rape has changed, but most of these cases are quite old, remember that the definition used in these cases will be outdated

Question 34

Yates v HM Advocate 1977

Answer 34

The fact that the witness is observed in a state of shock or distress may corroborate her account of events

Question 35

Gracey v HMA 1987

Answer 35

Confirmed the position in Yates and that when dealing with distress evidence the jury must be convinced that the distress was genuine.

Question 36

Is there a time limit on corroboration?

Answer 36

The distress must not be too remote in time from the incident. There is no fixed time limit: all depends on the circumstances. A period in excess of 24 hours has been accepted (P v HM Advocate 2005) but in McCrann v HM Advocate 2003 where distress was displayed the afternoon after a rape, the fact that the complainer had earlier opportunities to complain about the rape prevented her distress being used as corroboration

Question 37

P v HM Advocate 2005

Answer 37

The appellant that was appealing against his conviction of rape and shameless indecency against his stepdaughter. During the trial the prosecution had relied on evidence of the stepdaughter’s distress in order to corroborate her account of what happened. The relevant period of time between the alleged sexual intercourse and the distress was 27 hours. The appellant tried to argue that this distress was too remote from the alleged intercourse and there were other possible explanations for why his stepdaughter may have been distressed - the longer the period of time the more potential explanations for the distress.

The court refused the appeal holding that there was no fixed interval after which distress on the part of the complainer couldn’t constitute corroboration, but there may be cases where the circumstances are such that no reasonable jury, properly directed could find that there was corroboration. Some of the relevant factors were that the complainer was the stepdaughter of the accused - so it wasn’t easy for her to turn to somebody for abuse - and there was also a background of sexual abuse which was considered relevant to the likelihood of her seeking advice directly after the event had occurred.

So this case demonstrates: there is no set time limit since a period longer than 24 hours has been acceptable between the incident and the distress.]

Question 38

McCrann v HM Advocate 2003

Answer 38

The appellant and complainer had a long sexual relationship and were on good terms with one another. They had sex one evening and although the complainer was crying on her way home, by the time she arrived home she had stopped crying (she said she didn’t want to upset her son and didn’t phone anyone because it was too late). The next morning she took her daughter to school and went to work and it was only at some time in the afternoon that she appeared distressed and it was only at this point she claimed she had been raped.

The court held that as a general rule distress can corroborate the complainer’s evidence that she had sexual intercourse without consent but whether it would do so in a particular case would depend on the circumstances. Again it was stated that there was no set time limit but the assessment of distress was to be done by the jury and if it were the case on appeal that the court had the opinion that no reasonable jury properly directed would have found there was corroboration on the basis of that distress then there would have been a miscarriage of justice and the appeal should succeed. The court held that this was such a case so the distress could not corroborate so the conviction was not upheld.

Question 39

Can distress corroborate every fact?

Answer 39

Distress cannot corroborate every crucial fact, and its role is limited in practice to corroborating the absence of consent:

Question 40

*Smith v Lees 1997

Answer 40

⁃ This case really established the limitation on the use of distress as corroboration - the complainer was a 13 year old girl who had gone with the accused and his brother in law on a camping trip along with other children. The accused had got into a tent where the complainer was sleeping and was alleged to have sexually assaulted her. She had made noises while in the tent and came out of the tent crying. The brother in law of the accused had heard these noises. The Crown attempted to use the complainer’s account of what happened plus her distress which the brother in law could speak to in order to obtain a conviction.
⁃ The court held that the role of distress in corroboration is fairly limited - it stated that distress could only corroborate the complainer’s evidence that she had been subject to some conduct that had caused her distress - it couldn’t support any particular accounts of what had caused the distress in the absence of other eyewitnesses who could confirm what acts had actually occurred. The court said that distress could be used to corroborate certain aspects of the complainer’s account such as lack of consent as long as the jury were satisfied that the distress was because of the alleged incident rather than some other circumstances that were arising.

Question 41

Can distress corroborate mens rea?

Answer 41

See McKearney v HMA 2004

Question 42

McKearney v HMA 2004

Answer 42

⁃ The High Court held that the mens rea of rape does require corroboration. (NB this case followed the law change in 2001 so that rape did not require the proof of force).
⁃ In this case the complainer and appellant had been in a relationship for a number of years but were living apart at the time. The complainer woke up in the early hours and found that the appellant had forced entry into her house and was sitting on top of her with his hands around her throat. He then assaulted her a number of times and threatened to kill her. A number of hours later he told her to go back to bed but she refused. He then told her to lie down so that he could rub her back. She complied but then he started having sex with her. She claimed she didn’t want to have sex with him but she accepted that she hadn’t resisted or complained but that she hadn’t wanted to consent but was in fear of what he might do. The appellant claimed that the claimant had encouraged him to have sex (and thus that he had a genuine belief that she was consenting to the intercourse).
⁃ At the trial the judge had not directed the jury to consider whether the appellant knew or was reckless as to the complainer’s consent (so the judge had given no specific direction on the requirement to establish mens rea.)
⁃ The appellant was convicted and appealed, stating that this amounted to a misdirection. He also argued there was no corroboration of his mens rea.
⁃ In response the Crown argued that they weren’t challenging the idea that mens rea must be proved but how mens rea should be established in practice. Their argument was that an explicit direction of mens rea by the judge is not required if the mens rea is in some way tied up with the actus reus (i.e. if the mens rea can be inferred from the actus reus then it isn’t always necessary for the judge to give a direction on mens rea).
⁃ The court held that in this case there was sufficient evidence that the complainer had said and done nothing to indicate to the appellant that she had not been consenting so there was a real possibility that there could be a genuine belief that she was consenting but this possibility had not been mentioned to the jury. Thus in this case the jury should have been given clear directions that the Crown must establish and prove mens rea - since they hadn’t in this case the appeal was allowed. So it was noted that mens rea must be corroborated.
⁃ It was also held that distress is only capable of corroborating parts of the actus reus - it was suggested that distress cannot provide corroboration of mens rea.
- She admitted she hadn’t complained at the time or resisted; unwanted sex but she had not actively asked for him to resist. Because of this the appellant said she was actively encouraging him to have sex which meant he genuinely believed that she was consenting.
- At trial the judge didn’t direct the jury to say that …. He said if there was intercourse against the appellants will then this would be rape.
- He was convicted on appeals as there had been a misdirection as the judge hadn’t directed the jury about the honest belief (To consent) criteria.
- Two fold argument: (1) misdirection (2) even if his actions could be used to infer mens rea it wasn’t corroborated so there wasn’t sufficient evidence to convict him.
- In response, the prosecution argued that the general requirement for mens rea was not in dispute; they were arguing over how mens rea was treated in practice. They argued that because the defendant hadn’t raised any mens rea, then it wasn’t a failure on their part that the judge hadn’t directed the jury to consider the issue. In this case there was ample evidence that the complainant had not done anything to say she wasn’t consenting.
- If a jury did believe that he thought the woman was consenting then he wouldn’t have the required mens rea for him to be convicted. So the jury should have been given clear direction on this (mens rea to sufficient standard including corroboration).
- Distress - this case did not suggest that distress could corroborate mens rea. Distress may tell us that the complainant is not consenting (so about the nature of the act) but it cannot tell us anything about what is going on in the accused’s mind when he commits the offence.
- Mens rea must be proved and it must be corroborated (distress is not corroboration).

Question 43

HMA v Cinci 2004

Answer 43

⁃ The accused and complainer were tourists visiting the highlands - they had been on a tour and become very drunk. Later on that evening they were found by the manger of the hostel both naked in the shower together. The complainer was distressed and claimed that the accused had raped her but said that she couldn’t remember anything that happened. During the trial the judge did direct the jury specifically on the issue of mens rea but in doing so implied that the circumstances were such that there was corroboration of both the actus reus and mens rea (so essentially implied that the distress amounted to corroboration of both the actus reus and mens rea - contrary to the suggestions in McKearney.)
⁃ The accused was convicted and appealed on a number of grounds, one of which was that there was insufficient evidence to find that his mens rea had been proved.
⁃ The court held that although the judge had directed the jury that mens rea had to be corroborated, the judge was wrong to suggest that there was sufficient evidence to prove the accused’s mens rea.
⁃ [So the overall impression is that distress cannot corroborate mens rea[ However, James Chalmers has argued that if distress can corroborate the complainers claim that the sex was somehow forceable and that this combination of factors can then be used to infer that the accused had mens rea then there is no reason why distress should not be allowed to infer mens rea when there is a lack of consent.].]
- The court also said, when there is no use of force the judge must be careful to direct towards corroboration.

⁃ NB there are a number of other ways that mens rea may be corroborated in non-forcible rape cases (i.e. other than distress) (NB force is no longer a requirement for the actus res of rape). A number of these relate to where the complainer is asleep or pretending to be asleep - the fact the complainer was asleep has been used to corroborate the mens rea of the accused.

• Professor Chalmers has argued that if …then it does not make sense that distress can not be used to corroborate mens rea where there is a lack of consent. He argues that the inference drawn from force must also be drawn from distress. This is clearly open to criticism.

NB Mens rea must be corroborated and distress cannot generally operate to corroborate mens rea. 

⁃ It might be the case that now the law has changed and there are now a number of factual circumstances under which it is presumed that rape has occurred, this issue might not be so problematic.

Question 44

Can emotions other than distress be used as evidence in the same way?

Answer 44

Perhaps - see Fulton v HM Advocate 2000 JC 62

Question 45

Fulton v HM Advocate 2000 JC 62

Answer 45

⁃ Accused tried for being in possession of a sawn off shotgun. The crown led evidence that when the house was raided and the gun was found the owner (of lodging house) of the premises where the accused (a lodger) lived was extremely shocked to find there was a gun on his premises. The crown tried to rely on this evidence of the shock of the owner to infer that the only other person who lived there, the accused, was in possession of the gun.
⁃ The trial judge held that if they accepted this evidence then this could be used to corroborate the owner’s own evidence that the shotgun was not his, and together this could be used to prove that the accused was the one who possessed the shotgun. The accused was convicted and appealed.
⁃ In the initial appeal it was held that if the jury had decided that the police officer’s evidence was evidence of a genuine spontaneous reaction then they were entitled to treat it as an independent piece of evidence which indicated that the owner was unaware of the presence of the shotgun, so it could corroborate his account that he didn’t own the gun, and thus that the jury was entitled to infer that the only other adult who had access to the flat (the accused) was the person in possession. So the appeal was refused. [See 2005 below]
- Given the shotgun was in an accessible place, the owner’s surprise did not necessarily incriminate the lodger.
- So other kinds of emotional response might act as corroboration but in this particular case there was not enough to pin it on the lodger alone.
- [The owner of the premises claimed the shotgun was not his and was trying to corroborate this fact using evidence that he was genuinely shocked to find the shotgun on his property.]
- The lodger was convicted.

Question 46

Fulton v HMA 2005

Answer 46

However this was referred to the High Court again by the Scottish Criminal Cases Review Commission. The argument was that although the evidence of the surprise might exclude the owner of the house from begin the culprit in itself it didn’t necessarily identify the appellant as being the culprit.

Question 47

What is the Moorov doctrine?

Answer 47

The moorov doctrine is a special way of establishing corroboration:

Allegations of crime (i.e. different cases) can be mutually corroborative if they “are so interrelated by character, circumstances and time as to justify an inference that they are parts of a course of criminal conduct systematically pursued by the accused” (Walkers on Evidence, 3rd edn para 5.10.1).

Question 48

*Moorov v HM Advocate 1930

Answer 48

A man had been convicted of a series of assaults and indecent assaults on his business premises and the complainers were all ex-employees. In each of the particular charges there was only one piece of direct evidence from the complainer. One incident happened 4 years before the rest of them and the rest were separated by a short period of time. The accused was convicted and appealed.

The court held that this rule existed (that since the incidents were so connected to each other they could corroborate one another). The main question was one of time - was the case separated by 4 years sufficiently linked to allow the Moorov doctrine to operate. The court held that there was too long an interval for the doctrine to operate but the rest of the charges the convictions were upheld.

Question 49

What are the three criteria of the Moorov doctrine?

Answer 49

1. “Character and circumstances”
2. Time
3. Identification

Question 50

What is the character and circumstances criteria?

Answer 50

These two aspects of the test are rarely distinguished. The crimes do not have to have the same name, for Moorov to apply and may in fact be very different, so long as a clear nexus can be established. See e.g. Carpenter v Hamilton 1994.

The courts have tended to hold that indecent acts with children are sufficiently related in this way regardless of differences in the nature of the acts concerned: Hughes v HM Advocate 2008

Question 51

Carpenter v Hamilton 1994

Answer 51

This case involved charges of BotP and they involved different forms of conduct but each time in the same place and very close together in time, so the sheriff held that the Moorov doctrine should apply and one of the reasons for it was that charges were similar enough in character.

Question 52

Hughes v HM Advocate 2008

Answer 52

The offences involved two different children. One of whom the accused had hit with a belt and the other the accused had been charged with lewd and libidinous practices. He was convicted and on appeal he argued that the first charge was simply assault so should not be able to provide mutual corroboration for the other charge.

The court held that even though the offences were different this didn’t mean that Moorov couldn’t apply - as long as there was a sufficiently close relationship the doctrine could apply.

Here, Hughes argued that the first allegation was merely assault and could not corroborate lewd and libellous behaviour as they are unrelated. Held: even though the charges were slightly different, there were circumstances connected them sufficiently so Moorov can apply. So provided they are linked in character and circumstances, it does not matter whether the charges are necessarily similar.

Question 53

What is the time requirement in the Moorov doctrine?

Answer 53

The necessary connection here depends on the nature of the acts (so there is no set time between the acts):
⁃ “A man whose course of conduct is to buy houses, insure them, and burn them down, or to acquire ships, insure them, and scuttle them, or to purport to marry women, defraud and desert them, cannot repeat the offence every month or perhaps every six months.” (Moorov v HM Advocate 1930 JC 68 at 89 per Lord Sands)

⁃ Generally, the courts have been reluctant to permit a latitude of more than 3½ years, but this all depends on the nature of the allegations. (Conversely, the less similar the allegations the closer they will have to be connected in time they have to be to one another for Moorov to apply.)

Question 54

Stewart v HM Advocate 2007

Answer 54

(4 year gap but similar circumstances; Moorov applied)

13 charges of rape and other sexual offences against the accused when he was a police officer. He was convicted of 3 charges, two from 1999 and one from 2003. The court held that even though there was this 4 year interval the similarity in the character and circumstances was such that Moorov could be applied to supply corroboration.

Question 55

Sinder v HM Advocate 2003

Answer 55

(4-5 years but differences between offences; Moorov not applied).

On an appeal against convictions of three charges of lewd and libidinous practices which were separated by 4-5 years the court held that the differences between the offences and the time interval meant that Moorov should not apply.

Question 56

Pringle v McPherson 2011

Answer 56

In recent years the time restriction on Moorov has loosened. Pringle v McPherson 2011: Here the Moorov doctrine was applied despite a gap of 12 years between the relevant offences. The court emphasised that whether Moorov could be applied or not depended on whether the allegations formed a course of conduct. Here the evidence was insufficient, but on its own, this period of 12 years was not the deciding factor (it was considered).

Question 57

*K v HMA 2012 JC 74

Answer 57

period of 13.5 years — this long time period did not preclude Moorov being applied. In this case there were special features about the circumstances. The complainers were nephews of the accused and the things said to them were very similar — which led the court to decide it was a course of conduct and the 13.5 years would not prevent Moorov being applied

Question 58

What is the identification requirement?

Answer 58

There must be identification evidence in respect of each charge for Moorov to apply, although not necessarily eyewitness evidence:

Question 59

Lindsay v HM Advocate 1994

Answer 59

⁃ Two people charged with assault and robbery. In respect of the charge against one of the accused, the complainer was unable to identify who had actually carried out the offence - he couldn’t identify them by looking at them. But the way that he could identify them was that he had said in evidence that he was assaulted by three men and after he was assault he climbed down to the bottom of the stairs in the building he lived and told another resident which direction the three men who were wearing masks had run off to. The complainer followed them and found three men who were counting money and were holding a leather jacket and papers which had been taken from him.
- The defence argued that there was no case to answer as there was no credible eye-witness identification of the accused.
⁃ The court held that this was sufficient identification evidence (albeit circumstantial) to allow Moorov to operate.

Question 60

When is the Moorov doctrine of most use in practice?

Answer 60

The doctrine is of most use where sexual offences are concerned, but it is not confined to such cases. See e.g. HM Advocate v McQuade 1951 JC 143 (series of apparently motiveless assaults with a razor); McCudden v HM Advocate 1952 JC 86 (two similar attempts to bribe professional footballers to lose a match).

Question 61

What is the Howden doctrine?

Answer 61

This is another way of obtaining corroboration where there is a kind of lack of evidence. It is applicable where there is more than one charge against an accused and there is no evidence identifying the accused[ Contrast with Moorov where identification is essential.] as having committed one of these crimes. The reason corroboration is possible in these circumstances is that the crime must be sufficiently similar to another which has been proved by corroborated evidence as having been committed by the accused.

So in other words the doctrine holds that even where there is no evidence identifying the accused as having committed one crime, if that crime is sufficiently similar to another which he has been proved (by corroborated evidence) of committing, he may be convicted of both.

Question 62

*Howden v HM Advocate 1994

Answer 62

The accused was charged with an attempted robbery of a building society and with robbery of a bank. The circumstances of each were very similar and happened within 40 days of each other. The accused was positively identified as having been the perpetrator of the attempted robbery but there was only very tentative identification evidence that he committed the bank robbery. In light of this evidence the jury was directed that they could commit the accused of this bank robbery if they felt it was clear that both incidents were committed by the same person.

The accused was convicted and appealed. The appeal court held that the strength of the identification evidence in respect of the second charge was unimportant so long as the jury was satisfied beyond reasonable doubt that the same person had committed both offences.

The case is more controversial than it should be. It involves a fairly straightforward application of what logicians call a syllogism:
⁃ Offences 1 and 2 were committed by the same person (rests on high degree of similarity)
⁃ X committed offence 1 (shown by identification evidence)
⁃ Therefore X committed offence 1 and offence 2

These two doctrines [Moorov and Howden] can sometimes operate together:

Question 63

Townsley v Lees 1996

Answer 63

⁃ The accused was charged with 3 thefts. In each of these three charges the accused was said to have sold rosebushes to an elderly woman while the second person went to the back of the house and committed the theft. The way each of these thefts happened was the same. The identification evidence was such that one of the complainer’s identified the accused as being similar in height and age to the person who had come to the house and engaged her in conversation. One of her neighbours said that the accused was of a similar height and build. Another complainer identified the accused as the woman who called to the house and engaged in conversation. But the third complainer couldn’t identify the accused person at all but there was some tentative identification evidence from the complainer’s neighbour. (So strong identification in relation to the first charge, strong in relation to the second charge and none in relation to the third charge).
⁃ Thus, looking at the charges separately it couldn’t be said that there was corroboration of identification. However the accused was convicted and argued on appeal that there was insufficient identification evidence to justify the application of the Moorov doctrine.
⁃ However the court was very clear that there was sufficient identification evidence between parties 1 and 2 to justify the application of Moorov between these two charges and the Howden doctrine could be used to supply the corroboration evidence for the third charge. So the conviction was upheld and the appeal refused.
⁃ *[So Moorov and Howden can be used in combination.]

Question 64

Gillan v HM Advocate 2002

Answer 64

⁃ Accused charged with assault and robbery whilst acing with another. The crime was committed by threatening the complainer with a syringe to the neck. The crimes were all committed within 3 weeks of each other and in the same town centre at the same time of day.
⁃ The accused was positively identified by 2 witnesses as being the perpetrator of the second assault and robbery. But there was no direct evidence relating to the first incident other than the complainer’s evidence and he was unable to identify the perpetrator. The Crown relied on Howden and Townsley (above) in order to obtain a conviction.
⁃ The accused appealed and the court held that both Howden and Townsley were correctly decided but in this particular case the similarities were insufficient to support the Howden principle from applying since they were not related to identification of the accused to justify the conviction, so the appeal was refused.
- The accused appealed his conviction saying that Howden had been incorrectly decided. This failed. But it was held that the similarities were insufficient to apply the Howden and Moorov principle.

NB Moorov applies when you have identification similarities. If you have a situation of positive ID for one charge and another which is extremley similar, inference (syllogism) can be used.

Question 65

What is similar fact evidence?

Answer 65

Moorov and Howden require the accused to be charged with all the connected crimes at the same time, but what if that is not possible? In such cases, it may be possible to admit evidence of a crime not charged as “similar fact evidence”, but the law here is unclear and undeveloped. See *HM Advocate v Joseph 1929 JC 55. See also R v Z [2000] 2 AC 483; P Duff, “Towards a unified theory of ‘similar facts evidence’ in Scots law” 2002 JR 143[ Read this!!!!!].

Question 66

What are the recommended reforms on corroboration?

Answer 66

In 2011, the Carloway Review recommended that the law of corroboration should be abolished. This was the Review’s most controversial recommendation. Provision to implement this recommendation is contained in the Criminal Justice (Scotland) Bill currently before the Scottish Parliament

Note also recommendations by the Scottish Law Commission for changes to the Moorov doctrine, the Howden doctrine, and the law of similar facts evidence. (Scot Law Com Report No 229 (2012); available at http://www.scotlawcom.gov.uk)

In 2011, the Carloway Review recommended that the law of corroboration be abolished (and to amend the law of ‘similar fact evidence’ more generally). The Criminal Justice (Scotland) Bill 2013 includes provisions to abolish corroboration and, at the time of writing, a reference group appointed by Lord Bonomy is considering what additional safeguards and changes in practice may be needed when corroboration is abolished.