James McCracken v. Her Majesty’s Advocate [2016] HCJAC 28

Note of appeal against conviction:- On 13 February 2015, at Glasgow High Court, the appellant was convicted after trial of various charges of indecency and sentenced to 8 years imprisonment. The Crown relied on the evidence of the three complainers in the case and the application of the doctrine of mutual corroboration. The appellant appealed against his conviction on the grounds that there were insufficient similarities in time, character and circumstances for the application of the Moorov doctrine and a submission under section 97 of the Criminal Procedure (Scotland) Act 1995 at the close of the Crown case should have been sustained. Charges 1 and 3 related to using lewd, indecent and libidinous practices and behaviour towards AB, aged 6-14, on various occasions between July 1978 and July 1986 including penetrating her vagina with his fingers. Charge 4 related to the rape of CM, aged 11-13, on an occasion between July 1997 and July 1999 and charge 5 related to a charge of using lewd, indecent and libidinous practices and behaviour towards LAM, aged 8-11, on an occasion between March 1996 and July 1999 by touching her breasts and penetrating her vagina with his fingers. It was submitted on behalf of the appellant that in relation to charges 4 and 5, whilst the interval in time allowed the application of the doctrine, there were significant differences in the conduct libelled which resulted in the doctrine not being applicable in respect of charges 4 and 5 and the judge had erred in refusing the section 97 submission. It was further submitted that in the event that the doctrine could apply in relation to charges 4 and 5 the gap of 12-15 years between the conduct in charges 1/3 and charges 4/5 was too great, in the absence of greater similarity in the conduct, for the doctrine to apply. It was submitted that there were no unique features which connected the charges. It was submitted that charges 1/3 related to repeated conduct whereas the allegations relating to charges 4/5 related to single incidents and that there were insufficient similarities in the conduct for the doctrine to apply. On behalf of the Crown it was submitted that the appeal should be refused, it being a matter for the jury to assess the evidence and to decide whether or not to apply the Moorov doctrine. Here the court refused the appeal. The court referred to a number of recent authorities including MR v HMA 2013 JC 212, the key issue being whether there were such similarities in time, place and circumstance in the proved behaviour that demonstrated that the individual incidents were components parts of one course of criminal conduct persistently pursued by the accused. In the present case the court pointed to a number of similarities in the conduct. In relation to the conduct of charge 4 and 5 the court noted that both were serious charges involving penetration, one being digital, the other being penile, which can corroborate each other. The court also stated that the dissimilarities referred to on behalf of the appellant were a matter for the jury to assess. In relation to the interval of time between charges 1/3 and 4/5 the court observed that there is no maximum interval of time fixed by law beyond which the Moorov principle cannot apply and in the present case the interval of 10/11 years, rather than the interval of 12-15 years advanced on behalf of the appellant, was no bar to the application of the doctrine. In all of the circumstances the court considered that the judge was correct to repel the section 97 submission there being sufficient evidence for the jury to decide whether to apply the doctrine.