R.B. v. Her Majesty’s Advocate [2017] HCJAC 24

Note of appeal against conviction and sentence:- The appellant who was a school teacher was convicted after trial on indictment of a number of sexual offences against two school pupils, the first complainer being the uncle of the second complainer. The time interval between the offences was at least 17 years. A ‘no case to answer’ submission in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 had been made at the close of the Crown case when it was submitted that on account of the time interval it could not be said that the incidents formed part of a course of criminal conduct on the part of the appellant. The trial judge repelled the submission and the appellant was subsequently convicted. The appellant was sentenced to 6 years imprisonment. The appellant appealed against his conviction and sentence. In relation to the appeal against conviction it was contended that the trial judge was wrong to repel the section 97 submission. In addition, the trial judge’s directions on the application of the doctrine of mutual corroboration were inadequate in that the jury ought to have had emphasised to them that to apply the doctrine where there was such a time interval they would need to be satisfied of striking and compelling similarities between the conduct. It was further contended that in the absence of such compelling features no reasonable jury properly directed should have convicted. It was submitted on behalf of the appellant that, whilst it was accepted that there is no upper limit of time beyond which the Moorov doctrine could be applied, the interval of 17 years was such that it was necessary to identify an extraordinary feature or striking similarity between the character and circumstances of the respective charges before the doctrine of mutual corroboration could apply. It was submitted that in the present case there were no such striking or compelling features and the trial judge ought to have sustained the section 97 submission. It was submitted on behalf of the Crown that the family relationship between the complainers was an important factor. The evidence showed that the appellant remained friendly with the first complainer. It was submitted that the evidence showed that he remained friendly with the first complainer and through the existing family friendship he then began to abuse the second complainer. Here the court allowed the appeal. The court reiterated that in cases where the application of the doctrine of mutual corroboration is required what is being looked for is an underlying unity of intent such as to indicate a course of conduct on the part of an accused. It is necessary to apply the doctrine with care particularly where there are few charges separated by significant time intervals. The court noted that a general disposition to commit a particular type of offence should not be allowed to be used for corroboration but rather that it is necessary to identify an underlying unity and the need for evidence which demonstrates that the individual incidents are not unrelated but are component parts of one course of conduct persistently pursued by an accused. The court noted that the time interval in the present case was substantial and for the Crown to rely upon the doctrine in the circumstances present the jury would require to conclude that the underlying course of conduct of which the offences were part was one directed towards committing offences against members of the same family and the court did not consider that was made out on the evidence. It was noted that there were a number of similarities between the conduct, however, those similarities lacked the striking or extraordinary element to enable the application of the doctrine where such an interval of time existed.