J.M. v. Her Majesty’s Advocate [2018] HCJAC 30

Note of appeal against conviction:- The appellant was convicted after trial on indictment at the sheriff court of three charges of indecency perpetrated against two complainers:- (1) a charge of lewd and libidinous practices and behaviour against a girl (complainer A) when she was aged 9 on various occasions between 1 September 1997 and 24 December 1997 the appellant gave her a bath during which he handled her naked body and on two occasions inserted his fingers into her vagina; (2) a contravention of section 21 of the Sexual Offences (Scotland) Act 2009 in that on various occasions between 1 December 2014 and 28 July 2015 the appellant intentionally caused another girl (complainer B), then aged between 6 and 7 years to participate in a sexual activity in that he induced her to masturbate his naked penis; and (3) a contravention of section 20 of the Sexual Offences (Scotland) Act 2009, namely, the sexual assault of complainer B between 1 December 2014 and 28 July 2015 by giving her a bath during which he handled her naked body, induced her to lie naked on a bed and rubbed her naked body with a towel and massaged her naked body with his hands and induced her to lie in bed with him whilst he was naked and she was naked and induced her to sit on his body whilst they were both naked. At the close of the Crown case a ‘no case to answer’ submission was made in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 which was repelled by the trial sheriff. It had been submitted on behalf of the appellant that there was insufficient evidence to justify the application of the Moorov doctrine in charges involving the two complainers as the shortest time interval between the alleged offending was a period of 17 years. The sheriff repelled the submission and stated that whilst there was no upper limit to the time over which the Moorov doctrine could apply for a period as long as 17 years there required to be some extraordinary or compelling feature to entitle the jury to find the necessary underlying unity. The sheriff considered that there were present such extraordinary features, for example, he ingratiated himself with the families of both complainers, provided the complainers gifts and gave both baths. The appellant appealed against his conviction it being contended that the sheriff had erred in repelling the ‘no case to answer’ submission. It was submitted on behalf of the appellant that, whilst there was no upper time limit beyond which the doctrine of mutual corroboration could not apply, in light of the limited number of charges and the significant time period and the absence of any special or compelling similarities between the conduct, there was no evidence of continuity of conduct necessary to establish a course of conduct and the appeal should be allowed. On behalf of the Crown it was conceded that a period of 17 years was a significant one and one which required consideration of the presence of any special features which made any similarities between the conduct compelling and allowed an inference to be drawn that the behaviour formed part of a course of conduct systematically pursued by the appellant. It was submitted that the issue should be left to the jury for their consideration unless it could be said that on no possible view could there be a connection between the charges. Here the court allowed the appeal. The court considered that, unlike in the case of DS v HMA [2017] HCJAC 12, referred to by the Crown in their submissions, where a time interval of 7 years permitted the application of the doctrine in similar circumstances, in the present case there was an absence of compelling circumstances, which allowed the substantial time gap to be overcome. The court noted that whilst there were a number of similarities present they were not of such a striking or extraordinary nature to permit the inference that they were component parts of the same course of criminal conduct.