J.L. v. Her Majesty’s Advocate [2016] HCJAC 61

Note of appeal against conviction:- On 6 August 2015, at Edinburgh High Court, the appellant was convicted after trial of 3 charges (charges 3, 6 and 11) of physical and sexual abuse perpetrated against his daughter, his younger cousin and his step-daughter between October 2006 and April 2014. Eleven charges were withdrawn by the Crown. On 24 September 2015 the appellant was sentenced to an extended sentence of fifteen years comprising of a custodial element of twelve years and an extension period of 3 years. Here the appellant appealed against his conviction in relation to charge 3. Charge 3 was a charge of repeatedly using lewd, indecent and libidinous practices and behaviour towards his daughter who was aged 14 between 1 October 2006 and 31 December 2006 contrary to section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995. Charge 6 was a charge of the repeated penetrative sexual assault of his 13 year old cousin between 1 July 2013 and 12 October 2013 contrary to section 3 of the Sexual Offences (Scotland) Act 2009. Charge 11 was a charge of repeatedly having unlawful sexual intercourse with his step daughter aged 14 between 1 December 2013 and 9 April 2014 contrary to Section 28 of the Sexual Offences (Scotland) Act 2009. The appeal in relation to charge 3 contended that the doctrine of mutual corroboration could not apply give the interval in time between charges 3 and 6 (6 years and 6 months); and charges 3 and 11 (6 years and 11 months). It was conceded on behalf of the appellant that the doctrine of mutual corroboration could apply between charges 6 and 11, however, in relation to charge 3 and the remaining two charges the time interval was too great. In addition, it was submitted that the trial judge’s directions in relation to the doctrine and to the lengthy time interval between the charges were inadequate. Here it was submitted on behalf of the appellant that the trial judge erred in repelling the ‘no case to answer’ submission made on behalf of the appellant in terms of section 97 of the Criminal Procedure (Scotland) Act 1995. It was submitted that the Moorov doctrine could not apply due to the significant lapse in time between charge 3 and charges 6/11. Given the interval in time it was necessary to identify an extraordinary feature or striking similarity between the character and circumstances of the charges before the doctrine of mutual corroboration could apply and there were none. It was further submitted that there were a number of significant differences between charge 3 and charges 6/11. It was further submitted on behalf of the appellant that the trial judge ought to have given the jury a clear and unequivocal direction that as the time gap between the offences was lengthy, the jury required to consider whether there were any extraordinary features in the evidence that made the similarities compelling. On behalf of the Crown it was submitted that the doctrine could apply notwithstanding the time interval and the evidence pointed to an underlying course of criminal conduct persistently pursued by the appellant as there were a number of striking similarities between the charges. It was further submitted that the trial judge’s directions were adequate and there was no requirement for a specific direction in the terms suggested on behalf of the appellant. Here the court refused the appeal. The court reiterated that there is no maximum time gap fixed by law beyond which the Moorov doctrine cannot apply as discussed in AK v HMA 2012 JC 74. The court went on to state that the more similar the conduct is, the less important a lengthy interval in time is and in cases where there are compelling similarities a long time interval may be acceptable. The court went on to list a number of features common to the charges which was suggestive of a course of conduct systematically pursued by the appellant. In relation to the second ground of appeal the court considered that the directions given to the jury were unexceptional and they made clear to the jury that the doctrine should be applied with caution and in that regard their attention was directed to the gap in time between charge 3 and charges 6/11.