APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Nimmo Smith Lord Eassie	[2008] HCJAC 73 Appeal No: XC912/07   OPINION OF THE LORD JUSTICE GENERAL   in   APPEAL   by   C.B. Appellant;   against   HER MAJESTY'S ADVOCATE Respondent:   _______

 

 

Act: Kennedy; Campbell Smith, W.S., Edinburgh

Alt: Young, A.D.; Crown Agent

 

9 December 2008

[1] I am grateful to Lord Eassie for his narrative of the circumstances and for his careful analysis of the authorities which bear on the issue before the court. As I have, however, come to a different conclusion, I must explain my reasons for doing so. Before examining the authorities and seeking to apply them, I also record the assistance I have derived from the Outline Submissions prepared and lodged by counsel for the appellant.

[2] The leading decision in this field is Moorov v HM Advocate 1930 JC 68 (a decision of a Full Bench). The accused there was charged with twenty one offences. These were grouped into "three distinct categories of crime, viz.:- (1) assault, (2) indecent assault and (3) attempt to ravish" (per Lord Justice Clerk Alness at page 78). The last category in the event fell out of consideration, since the jury negatived the averments which related to it. It is plain, however, that the appeal court approved the trial judge's grouping of the charges of simple assault distinctly from those of indecent assault (per Lord Justice General Clyde at page 75). Presumably, charges of attempted rape would likewise have been regarded as being within a distinct category. It is difficult to suppose that when Lord Justice General Clyde at page 75 spoke to identity of kind, he had not in mind identity of nomen iuris.

[3] But the law has moved on since then. In HM Advocate v Cox 1962 J.C. 27 Lord Hunter, on circuit, held, under reference to Hume on Crimes, vol.ii, page 385 and Alison's Criminal Law, vol.ii, page 552 that "it is a sine qua non that the crime should be the same in a reasonable sense of that term". What precisely his Lordship had in mind by "in a reasonable sense of that term" is not wholly clear - though he had earlier noticed that Lord Sands in Moorov had opined that evidence of an attempt to commit a particular crime might in appropriate circumstances supply the corroboration of the commission on another occasion of the completed crime. Lord Hunter, however, held that the Moorov doctrine could not be used between charge (3) (sodomy committed on a boy at times when he was between 8 and 12 years of age) and either of the two charges of incest (one with a step-daughter during the same period when she was between 11 and 15 years of age and one with an older step-daughter during an earlier period). In HM Advocate v Brown 1970 S.L.T. 120 Lord Justice Clerk Grant, sitting as a trial judge, addressed the Moorov doctrine in circumstances where three charges under section 4(1) of the Criminal Law Amendment Act 1922 (lewd and libidinous conduct towards a girl aged between 12 and 16) were preferred along with two charges of incest with girls both then under 16. He held that, while the evidence of lewd and libidinous practices could not corroborate the much more serious charge of incest, the evidence of incest (and its preliminaries) could be used to corroborate the evidence of lewd and libidinous practices. That was in circumstances where, on the evidence, the preliminaries to the incest involved indecency and lewdness. What appears to have been critical was not so much the identity of the crime charged but the identity of the lewd conduct in each case.

[4] In 1991 Lord Sutherland, on circuit, in KP v HM Advocate 1991 S.C.C.R. 933 held that evidence of rape of a 3-4 year old girl and evidence of sodomy of a 2-3 year old boy could be mutually corroborated - a decision perhaps not readily reconcilable with HM Advocate v Cox. No adverse comment on Lord Sutherland's ruling was made when KP was heard on appeal. Express recognition at appeal level that the applicability of the Moorov doctrine is not dependent on identity of nomen iuris is to be found in McMahon v HM Advocate 1996 S.L.T. 1139, where Lord Justice General Hope said at page 1142:

"The fact that each crime is described as an instance of lewd, indecent and libidinous conduct, or as an indecent assault, is not a conclusive pointer in favour of the application of the rule. Nor does the fact that the crimes each have a different nomen iuris necessarily point against its application. It is the underlying similarity of the conduct described in the evidence, not the label which has been attached to it in the indictment, which must be examined in order to see whether the rule can be applied."

The charges there were of indecent assault and of assault with intent to ravish.

[5] That ruling had in effect been anticipated in Carpenter v Hamilton 1994 S.C.C.R. 109, where it was held that evidence indicative of a breach of the peace but with elements suggestive of indecency could corroborate a single source of evidence directed to a charge of shameless indecency, and in Smith v HM Advocate 1995 S.L.T. 583, where charges framed as lewd and libidinous practices and as indecent assault were held to be amenable to the doctrine. McMahon was recently followed in Hughes v HM Advocate 2008 SCCR 399, referred to by Lord Eassie.

[6] It thus appears that, notwithstanding the approach adopted in Moorov, the law has developed to the extent that identity of the crimes charged is not a prerequisite for the application of the doctrine associated with that case. It was not suggested in this case that McMahon or Carpenter or Smith was wrong as being inconsistent with the Full Bench decision in Moorov. What is now critical, it appears, is, apart from similarity of time, place and circumstance, "similarity of the conduct described in the evidence". The rule is, after all, a rule of evidence, not a rule of substantive law. Although the complainers in McMahon were all children, there is no suggestion in the reasoning that the extension of the application is restricted to crimes against children.

[7] In the present case the appellant was charged with crimes which each included the averment that "you did expose your naked private member towards [the complainer], masturbate yourself in [her] presence ...". He was convicted on all three charges as libelled. Although the appellant's criminal conduct on each of charges (1) and (2) went beyond such exposure and masturbation, these were the central features of each charge. Although the crimes charged were categorised differently (having regard amongst other things to the fact that the victim in charge (1) was a child and in charges (2) and (3) was an adult) the essential conduct was identical. Provided that the further requirement of external relationship in time, character or circumstance is satisfied (which in my view in the present circumstances it was), the doctrine can, in my view, apply.

[8] In these circumstances the sheriff was, in my opinion, entitled to reject the submission made to him under section 97 of the Criminal Procedure (Scotland) Act 1995 and this appeal should be refused. No doubt, if the law as it has been developed is thought to be unsatisfactory, that matter will be addressed by the Scottish Law Commission in its response to the recent reference made to it in connection with the Moorov doctrine.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Nimmo Smith Lord Eassie	[2008] HCJAC 73 Appeal No: XC912/07   OPINION OF LORD NIMMO SMITH   in   APPEAL   by   C.B. Appellant;   against   HER MAJESTY'S ADVOCATE Respondent:   _______

 

 

Act: Kennedy; Campbell Smith, W.S., Edinburgh

Alt: Young, A.D.; Crown Agent

 

9 December 2008

[9] In common with your Lordship in the chair, I am grateful to Lord Eassie for his full exposition of the relevant material. This enables me to express my own views relatively briefly.

[10] The question for us is whether the sheriff erred in refusing to sustain the submission of no case to answer under section 97 of the Criminal Procedure (Scotland) Act 1995. For the purpose of considering such a submission, it is necessary to take the Crown case at its highest. The sheriff therefore had to decide whether, taking the evidence of each of the two complainers at its highest, mutual corroboration could be found in accordance with the Moorov doctrine. Since the original decision in Moorov, the scope of the doctrine has been clarified by later decisions. In McMahon v HM Advocate 1996 S.L.T. 1139, Lord Justice General Hope said at page 1142:

"It is the underlying similarity of the conduct described in the evidence, not the label which has been attached to it in the indictment, which must be examined in order to see whether the rule can be applied."

This passage assists in understanding what was meant by the expression "underlying unity" which was used by Lord Justice General Clyde in Moorov at page 73.

[11] In my opinion, taking the evidence in the present case at its highest, the sheriff correctly concluded that there was sufficient evidence from the two complainers to entitle the jury to hold that there was an underlying similarity of the conduct described by them. The complainer in charge 1 was the daughter of the appellant's wife, and the complainer in charges 2 and 3 was the mother of the appellant's wife. They were thus female members of his, or at least his wife's, family circle. Each of them gave evidence that, among other things, on occasions when the appellant had opportunities to be alone in company with her, he exposed his erect penis towards her and masturbated in her presence, in order presumably to obtain sexual gratification. I agree with Lord Eassie that, because the complainer in charge 1 was only 10 years old at the time and her grandmother was of course much older, so that their need for protection was not the same, the law would take a different view of the criminality of such conduct towards each of them, and hence would attribute a different nomen iuris to the offence in each case, as is reflected in the terms of charge 1 on the one hand and charges 2 and 3 on the other. But this, to my mind, is to do with the gravity of the offences in terms of their potential effects rather than with the question whether there was an underlying similarity of the conduct. In his report to us the sheriff states that he considered that the similarities in time, place and character of the offences were entirely appropriate to the application of Moorov, and that the differences in ages between the two complainers did not preclude the operation of the doctrine. The sheriff was, in my view, fully entitled to reach this conclusion, applying as he did the appropriate test under section 97.

[12] For these reasons, and for the reasons more fully given by your Lordship in the chair, I agree that this appeal should be refused.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Nimmo Smith Lord Eassie	[2008] HCJAC 73 Appeal No: XC912/07   OPINION OF LORD EASSIE   in   APPEAL   by   C.B. Appellant;   against   HER MAJESTY'S ADVOCATE Respondent:   _______

 

 

Act: Kennedy; Campbell Smith, W.S., Edinburgh

Alt: Young, A.D.; Crown Agent

 

 

9 December 2008

 

[13] The appellant was prosecuted in the Sheriff Court on an indictment which contained these three charges.

"(1) On various occasions between 1 January 1995 and 31 October 1995, both dates inclusive, at ...... Oban and during the course of various car journeys within the Oban Area, Argyll you C.A.B. did use lewd, indecent and libidinous practices and behaviour towards S.J., born 18 February 1985, c/o Oban Police Office, a girl then under the age of 12 years and did expose your naked private member to her, masturbate yourself in her presence, induce her to touch your naked private member and masturbate you, make sexually explicit comments towards her, place your clothed erect member against her body and place your fingers in her vagina.

(2) On various occasions between 1 August 1996 and 4 May 1998, both dates inclusive, during the course of various car journeys within the Oban Area, Argyll, you C.A.B. did act in a publicly indecent manner towards C.M., born 10 May 1930, c/o Oban Police Office, and did expose your naked private member towards her, masturbate yourself in her presence, induce her to touch your naked private member and make sexually explicit comments towards her.

(3) On various occasions between 5 May 1998 and 31 December 2006, both dates inclusive, at ...... Oban you C.A.B. did conduct yourself in a disorderly manner, expose your private member and masturbate yourself in the presence of C.M., born 10 May 1930, c/o Oban Police Office, place her in a state of fear and alarm and commit a breach of the peace."

[14] The material evidence led by the Crown consisted of the testimony of the two complainers and there is no dispute that, for there to have been a sufficiency of evidence, the testimony of those two complainers had to be mutually corroborative in accordance with what is commonly referred to as the Moorov rule or doctrine. At the close of the Crown case a submission in terms of s. 97 of the Criminal Procedure (Scotland) Act 1995 of "no case to answer" was made by Mr Kennedy, who also appeared as counsel for the appellant in this appeal, on the ground, put broadly, that there was palpably insufficient similarity between charge (1) - lewd and libidinous and indecent practices towards a girl under the age of 12 - and the other two charges of respectively public indecency and breach of the peace, albeit that it was recognised that both of those charges involved some sexual element. The sheriff rejected that submission and in due course the jury returned a verdict convicting the appellant of all three charges. The principal ground of appeal argued before us was that the sheriff was wrong to reject the "no case to answer" submission by holding that the Moorov doctrine of mutual corroboration could apply in this case. While there was a further ground of appeal relating to the sheriff's directions on the Moorov doctrine, counsel for the appellant accepted that, if the Moorov doctrine could competently apply, there was no real criticism that could be advanced of the sheriff's directions to the jury.

[15] In his report to this court the sheriff gives a résumé of the evidence of the two complainers, which for present purposes I think may be further summarised as follows.

[16] The complainer in charge (1) is the appellant's stepdaughter. She stated in her evidence that the first incident of the alleged sexual activity occurred when she was 10 years old and was alone with the appellant in the house in which they then lived. She inquired as to "where babies come from". According to the complainer, the appellant then replied "I'll show you" and proceeded to expose his penis and masturbate to ejaculation. Subsequently in date there was an incident in which the appellant rubbed his penis against her buttocks and made sexual remarks towards her. A further incident involved her being seated on the appellant's knee in the course of which the appellant put his fingers into her vagina while his erect penis was "pressing into [her] bottom." In addition, this complainer gave evidence of two occasions in which in the course of a car journey in the locality the appellant asked the complainer to masturbate him and placed her hand on his penis and encouraged the movements appropriate to that activity.

[17] The complainer in charges (2) and (3) is the grandmother of the complainer in charge (1). She was born in 1930. She deponed that after she was widowed in 1996 the appellant, a taxi driver, regularly took her to the cemetery in which her late husband was interred. On the occasion of two of those journeys, the appellant began to masturbate while driving. The complainer ignored it. On a third occasion, she deponed that she had objected and asked the appellant to stop the car and let her out. According to the Sheriff's report, she then described the appellant as "screaming at me...saying come and see the size of it....come and see it, just touch it". She deponed that following that incident she had told the warden of the sheltered housing scheme in which she lived of what had happened. (No evidence from the warden as respects this assertion was adduced). These incidents were attributed by the Advocate depute to charge (2) - public indecency - although as the Advocate depute acknowledged, it was "not happily libelled". As respects charge (3), that of a breach of the peace, the complainer, the grandmother, gave evidence of some incidents in the appellant's home when, her daughter (the appellant's then spouse) being absent, the appellant would stand in the kitchen area of the house, looking into the living room area and would lift his top "circle his nipples" and masturbate while staring at the complainer in the living room area some distance away.

[18] Counsel for the appellant helpfully tendered a very full written note of argument, including a review of discussion of the Moorov doctrine in the textbooks and an extensive synopsis of the case law. I think it unnecessary to rehearse all the terms of that note of argument. The essential point advanced by counsel was that there was, in his words, "a palpable lack of symmetry or similarity" between charge (1) - the charge of lewd, libidinous and indecent practices against the child under the age of 12 years - and charges (2) and (3) involving either public affront (if charge (2) is ever to be seen as having been properly libelled) or private affront and alarm to an elderly lady. The charges involved quite distinct and different crimes. It was crucial to the invocation of the rule respecting mutual corroboration that the crimes charged should be the same crimes. While counsel accepted that, on the authorities, a difference in the nomen juris did not necessarily prevent the concept of mutual corroboration being applied as between two or more charges libelling different nomina juris, it was nonetheless necessary that the criminal conduct be the same in any reasonable sense. Counsel, by reference to his written note of argument, went on to point to the distinctions between charge (1) on the one hand and charges (2) and (3) on the other.

[19] In his response to the argument for the appellant the Advocate depute did not address in detail the authorities to which reference was made in the written submissions for the appellant. He pointed to various factual circumstances common to the charges. Thus there was, he said, a common element in the locations namely the family home or the appellant's car. There was, he said, similarity in that both complainers were members of the appellant's (at the time of the initiation of complaint and at trial, estranged) family. There was broad similarity in time scale. There was, he said, similarity in the sense that some of the sexual activity on the part of the appellant was masturbation in the presence of a member of the family. And so, while there were obvious differences between the nature of the charge respecting the first complainer and the nature of the two charges respecting the second complainer there was some similarity in the broad factual circumstances which justified allowing the matter to go to the jury. The appeal should therefore be refused.

[20] Given the terms of the indictment and the principal thrust of the submissions for the appellant, the discussion before us raised the important question of the extent to which the application of the Moorov doctrine of mutual corroboration requires the charges in question to the libel the same crime and for the evidence thereanent to be evidence of the same crime.

[21] While recognising that the origins of the Moorov doctrine lie in the writings of the institutional writers it is naturally convenient, in considering this question, to turn first to the Full Bench decision in Moorov v Her Majesty's Advocate 1930 JC 68, the circumstances of which are relatively well known, at least to the profession, and do not, I think, require a full rehearsal. In that case the trial judge, in charging the jury respecting mutual corroboration, distinguished between charges of "indecent assault" and charges of "assault" (albeit that the latter were, in the words of Lord Sands, "by way of liberties or familiarities with female servants"). In the course of his opinion the Lord Justice General (Clyde) referred, at page 75, to the trial judge having so grouped the charges and continued:

"The presiding judge grouped the cases as in the preceding paragraph, and directed the jury that they could only find corroboration (if at all), for any of the single witnesses' evidence, in the evidence of those who spoke to an offence in the same group. This seems a technical way of looking at the matter; but it was not challenged, and I think it was right. The law has never countenanced resort to this kind of circumstantial corroboration except in relation to crimes of the same kind; and I think the reason why identity of kind should be a sine qua non of the establishment of any recognisable connexion or relation between the separate acts is to be found in the necessity of giving a wide berth to any possible risk of allowing a jury to be tempted into the course of 'giving a dog a bad name and hanging him'. The fact that a person is naturally susceptible to a particular kind of temptation when it presents itself in similar circumstances, and in consequence commits a series of more or less cognate offences, is in itself irrelevant to the question whether he is proved guilty of a similar offence for which he is at the moment standing his trial - however much the man in the street might be inclined to be against him on that count." [Emphasis in the original]

At an earlier point in his opinion the Lord Justice General gave the test of sufficient connexion which he considered should be applied (p73):

"The test I think is whether the evidence of the single witnesses as a whole - although each of them speaks to a different charge - leads by necessary inference to the establishment of some circumstance or state of fact underlying and connecting the several charges, which, if it had been independently established, would have afforded corroboration of the evidence given by the single witnesses in support of the separate charges. If such a circumstance or state of fact was actually established by independent evidence, it would not occur to anyone to doubt that it might be properly used to corroborate the evidence of a single witness. The case is the same, when such a circumstance is established by an inference necessarily arising on the evidence of the single witnesses, as a whole. The only difference is that the drawing of such an inference is apt to be a much more difficult and delicate affair than the consideration of independent evidence. No merely superficial connexion in time, character, and circumstance between the repeated acts - important as these factors are - will satisfy the test which I have endeavoured to formulate. Before the evidence of single credible witnesses to separate acts can provide material for mutual corroboration, the connexion between the separate acts (indicated by their external relation in time, character or circumstance) must be such as to exhibit them as subordinate in some particular and ascertained unity of intent, project, campaign, or adventure, which lies beyond or behind - but is related to - the separate acts. The existence of such an underlying unity, comprehending and governing the separate acts provides the necessary connecting link between them, and becomes a circumstance in which the corroboration of the evidence of the single witnesses in support of the separate accounts may be found - whether the existence of such underlying unity is established by independent evidence, or by necessary inference from the evidence of the single witnesses themselves, regarded as a whole."

Thereafter, having noted the risk of confusion lurking behind a phrase such as "a course of criminal conduct" the Lord Justice General continued at page 74 in these terms:

"And therefore - especially in view of the growing practice of accumulating charges in one indictment - it is of the utmost importance to the interests of justice that the 'course of criminal conduct' must be shown to be one which not only consists of a series of offences, the same in kind, committed under similar circumstances, or in a common locus - these are after all no more than external resemblances - but which owes its source and development to some underlying circumstance or state of fact such as I have endeavoured, though necessarily in very general terms, to define."

In the course of his opinion the Lord Justice Clerk (Alness) at page 79 refers to and quotes passages from Hume, Alison, Tait on Evidence and Dickson on Evidence. It is, I think, unnecessary to set out in full the passages from those writers quoted by the Lord Justice Clerk. But in each and every case the authors make reference only to incidences of the same crime or, in the case of Tait, "one specific crime" as being the circumstance in which the rule may apply. At page 80 the Lord Justice Clerk then proceeds to seek to deduce a principle from the passages which he had cited and states:-

"The principle to be extracted from these passages may, I think, be expressed both negatively and positively. Negatively it may be expressed thus:- that where different acts of the same crime have no relation or connexion with each other, it is not competent to eke out and corroborate the evidence of one witness to one act by the evidence of another witness to another act. Positively the rule may be expressed thus:- that where, on the other hand, the crime are related and connected with another, where they form part of the same criminal conduct, the corroborative evidence tendered is competent. In that case as Dickson says (at par 1810):- 'The unity of character in such cases makes it highly probable that they were all parts of one thieving expedition'.

 

The statement of the distinction is easy, but its application is manifestly difficult. In every case, as it seems to me, the Court must put to itself the question - Is there some sort of nexus which binds the alleged crimes together? Or, on the other hand are they independent and unrelated?"

 

[22] With the possible exception of Lord Sands (who, it appears, was concerned not to exclude from the application of the doctrine of mutual corroboration charges of attempted, or preparatory crimes, as being groupable with the completed crime) all the other judges in the bench in Moorov either accepted, or did not dispute, the trial judge's grouping and the view that one had to be talking of "the same crime" before the rule might apply.

[23] The necessity for the charges, as respects which it is sought to apply the doctrine of mutual corroboration, to be charges of the same criminal character was evident, and applied, in Her Majesty's Advocate v Cox 1962 JC 27. In that case the accused was charged with two charges of incest, allegedly committed in respect of two of his stepdaughters respectively, and a third charge of sodomy in relation to a stepson. The Crown relied on the Moorov doctrine. The trial judge, Lord Hunter, held that the Moorov doctrine could not be applied as between sodomy and incest. In the opinion which he delivered following the hearing of submissions on the matter Lord Hunter said:-

"Upon the authority cited to me I have reached the conclusion, in the end without much hesitation, that to apply the doctrine of Moorov in relation to the third charge [the sodomy charge] in the present case, together with the first and second charges would be to extend the doctrine beyond the principle which has been recognised both by the textbook writers and in the decided authorities. I think it is fairly clear from the passages in Hume on Crimes, vol ii, p385and Alison's Criminal Law, vol ii, p.552, which were cited, that it is a sine qua non that the crime should be the same in a reasonable sense of that term. Both authors use the expression 'the same crime' and I note that in Moorov, at page 85, Lord Anderson quoted, with apparent approval, the passage in Alison which was cited to me and to which I have just referred."

[24] A broadly similar approach as respects the need for similarity in the crimes charged was followed by the Lord Justice Clerk (Grant) (at first instance) in Her Majesty's Advocate v WB 1969 JC 72, subject to the introduction of the notion that the "greater" crime might corroborate the "lesser" crime but not vice versa. The charges in question were lewd, libidinous and indecent conduct with step daughters on the one hand and incest with the same stepdaughters on the other. Evidence on the charge of incest might corroborate the charge of lewd, libidinous and indecent conduct towards the other step daughters; but not the other way round.

[25] In terms of appellate authority, matters were in a certain sense brought together in McMahon v Her Majesty's Advocate 1996 SLT 1139 in which, at page 1142, the Lord Justice General (Hope) in delivering the opinion of the court said:

"There was no real dispute between counsel and the advocate depute about the proper approach to be taken to the question raised by this argument. In Moorov v HM Advocate 1930 JC, p75; 1930 SLT, p599 Lord Justice General Clyde said that the law had never countenanced resort to this kind of circumstantial corroboration except in relation to crimes of the same kind. He referred to identity of kind as a sine qua non of the establishment of a connection between the separate acts. In our opinion this is a necessary element in the rule, as described by the Lord Justice Clerk Alness at p80 (p602), that the doctrine applies where the crimes are related or connected with each other so as to form part of the same criminal conduct. In HM Advocate v Cox at 1962 JC, p29, Lord Hunter said that it was fairly clear that it is a sine qua non that the crime should be the same in a reasonable sense of that term. But it is clear also that the matter does not depend on the nomen iuris which has been attached to each crime in the indictment. The fact that each crime is described as an instance of lewd, indecent and libidinous conduct, or as an indecent assault, is not a conclusive pointer in favour of the application of the rule. Nor does the fact that the different crimes each have a different nomen iuris necessarily point against its application. It is the underlying similarity of the conduct described in the evidence, not the label which has been attached to it in the indictment, which must be examined in order to see whether the rule can be applied. The question is ultimately one of fact and degree; see Carpenter v Hamilton."

In that case (McMahon) the Moorov doctrine was invoked as respects charges of lewd, indecent and libidinous practices involving the handling of the private parts and the insertion of a finger into the private parts of a female child and a charge of assault against a female child with the intention to rape. The court held that the offences were sufficient in their underlying similarity that despite the differences in nomen juris they could not be described as being crimes of a different character; and that the sheriff had properly left the matter to the decision of the jury.

[26] As is clear from the quotation from the opinion, and the decision of the court in McMahon, the existence of a different nomen juris does not in itself necessarily prevent the application of the doctrine of mutual corroboration. Apart from cases where both the completed crime and an attempt at the same crime is charged, and Her Majesty's Advocate v WB, it appears from the authorities to which we were referred that the first reported case of the doctrine being applied to crimes of a distinctly different nomen is KP v Her Majesty's Advocate 1991 SCCR 933 in which the accused was charged with the rape of a four year old girl and the sodomy of her two year old brother. Lord Sutherland (see p.935G) directed the jury in these terms:-

"Now, this is an unusual situation, ladies and gentlemen, and in the normal course of events a charge of rape would not corroborate a charge of sodomy, because one is committed on a woman and the other is committed on a man, which is fairly obvious. However, what we are concerned with here is sexual abuse of children and it is really penetration of their private parts which makes it almost immaterial whether it is rape in the case of a girl or sodomy in the case of the boy. As I say, you would have to be satisfied that this is all the course of - one course of criminal conduct being carried out by the accused almost regardless of the sex of the child and constituting a course of criminal conduct of sexual abuse of children."

While an appeal was taken in that case, it did not involve the direction so given by the trial judge. Lord Sutherland thus appears to treat penetrative paedophilia as, in a sense, a single form of criminal activity, having the same criminal character, irrespective of the gender of the abused child. Without, I think, it being necessary to give citation in detail, subsequent cases involving charges of the sexual abuse of children have tended to treat sexual abuse of children as if it were a crime with a single criminal label and a single criminal characteristic, so that the "mechanics" of the particular sexual abuse, or the stage or stages to which the abuse has reached, and whether the charge is at common law or statutory, are generally not apt to exclude the proper application of the Moorov doctrine.

[27] Setting aside the child sex abuse cases in which there appears to have emerged a perhaps understandable notion of a single crime of paedophilia or sexual abuse of children, approval at appellate level of the allowance of the Moorov doctrine between crimes of a different nomen juris first appears in Carpenter v Hamilton 1994 SCCR 108 (to which the court referred in McMahon). In that case, the accused was charged, first, with a breach of the peace in respect that, in a public park, he hid in bushes and then jumped out in front of a female making what were described in the charge libelled against him as "suggestive noises", and secondly with exposure of his penis to another female at the same locus some two months later. Expiscation at the trial of the term "suggestive noises" revealed that they were of a sexual nature. On one interpretation of matters the first charge might be seen metaphorically as a prologue to the second, the underlying unity being a campaign of exposure of the penis to females in the public park.

[28] Austin v Fraser 1998 SLT 106, which involved approval of the application of the doctrine as between a charge of breach of the peace and contravention of section 3 of the Road Traffic Act 1988 (careless or inconsiderate driving), is at first sight possibly a remarkable decision. But it proceeded upon a number of important concessions by counsel for the appellant and in the concluding paragraph of its opinion the court indicated certain significant reservations. Given those concessions and those reservations I do not think that Austin v Fraser is of any useful assistance.

[29] Finally, in this review, I mention Hughes v Her Majesty's Advocate 2008 SCCR 399, which came to our attention after the hearing of this appeal. This was primarily a case of sexual abuse of children in respect that it contained two charges of lewd, libidinous and indecent practices towards two children, a boy and a girl. But additionally, at the same locus and within the same time span as the charge of lewd, libidinous and indecent practices towards the boy, the indictment charged the accused with assaulting the boy by instructing him to remove his clothing and lie on a bed and then striking the boy on his naked buttocks with a belt. From the summary of the evidence set forth in paragraph [2] of the opinion of the court it appears that the accused was also naked at the time of the assaults with the belt and that the assaults immediately preceded masturbatory acts. At the time at which the offences commenced the accused was 14 years of age and the boy in question was aged 9 years. As respects the nomen juris aspect of the case the court stated in paragraph [9]:

"While charge (1) is a charge of assault, in our opinion, it is quite plain that it requires to be seen as an indecent assault. That quality can properly be inferred, in our view, from the fact that the first complainer was assaulted while naked, lying on a bed and with his hands tied behind his back. He was repeatedly struck across the buttocks with a belt. Although the charge is one of assault, in our view, if the circumstances are otherwise appropriate, such an offence may be used to supply mutual corroboration in terms of the Moorov doctrine in relation to a charge of lewd, indecent and libidinous practices and behaviour simply because of the indecent character of the assault."

Given the apparent sexually sadomasochistic aspect to the assault charge involving those two juveniles it is I think evident that the assault and the lewd, libidinous and indecent practices were similar crimes, to quote Lord Hunter in Cox "in any reasonable sense"; indeed the assault was an integral part of the conduct constituting the subject of the other charge. (The crucial question in the appeal was whether corroboration could be obtained from the charges relating to the girl.)

[30] In summary, what I take from these authorities is that it remains an essential requirement for the application of the Moorov doctrine of mutual corroboration that the charges in question involve the same crime - to borrow the words of Lord Hunter - "in any reasonable sense". Application of the rule or doctrine is not automatically thwarted by the existence of a different nomen juris, but the requirement of "the same crime" is there, as a basic requirement. I acknowledge of course that in McMahon, the court, in its opinion, referred to the necessity of examining the "underlying similarity of the conduct described in the evidence" but, given the passages which preceded that statement, with their reference to Moorov v HMA and the statement that identity of kind "is a necessary element in the rule", as well as the reference to HMA v Cox, I do not read the later reference to similarity of conduct as excluding, or dispensing with, any need for consideration of the essential criminal character or nature of the conduct in question. That character or nature must, I think, be inherent in any consideration of the similarity of the conduct. Absent a sufficient degree of similarity in respect of that character or nature it is, in my view, not open to the court to find mutual corroboration. I would add that, as already indicated, in so far as the law has accepted the Moorov doctrine to be applicable respecting crimes with a different nomen juris, this has largely been in the context of child sexual abuse, which may be seen as having that common criminal characteristic.

[31] The cases suggest to me two, linked reasons in principle for that basic requirement. The first flows from the view that mutual corroboration is admissible only where one is concerned with a single unified course of criminal conduct. The classic incidence is given by Hume and Alison in the passages to which reference was made in Moorov and consists in separate attempts to suborn witnesses in a forthcoming trial, the individual acts of subornation being simply parts of a single unified crime, namely the perversion of the proper course of justice as respects that trial. A crime of a different character, in respect of its not being linked to the undermining of the trial could not be seen as part of that singularity, albeit that there might be coincidences of location, of time, and of the making of similar threats of violence, where there was a different objective in those threats - for example - the extortion of money, as opposed to the perversion of justice. In my view this is what the Lord Justice General in Moorov v HMA was endeavouring to describe in the passages on page 73 which I have quoted. Secondly, if, as it must be, the search is for the nature and circumstances of offence (a), spoken to by the one witness, to be properly relevant to contribute to proof of offence (b), spoken to by another witness, that relevance necessarily requires that there be an essential similarity in the nature of the criminal conduct. Mere coincidences of time or place do not assist in the absence of similarity in the essence of the particular criminality of the conduct in issue. To take what I recognise to be a possibly crude example, on a charge that a male accused committed an indecent assault on a female at a party, evidence that the same male stole a mobile telephone from the female cannot, in any proper sense, be relevant to proof of the indecent assault, not withstanding that one could point to many common features in terms of time, location, dress, identification and other circumstances. The need for the crimes to be "the same crimes, in any reasonable sense," thus appears to me to be inherent in what I conceive as being the theoretical or intellectual basis of the Moorov doctrine of mutual corroboration.

[32] Accordingly, in my view, while a difference in nomen juris may not, in itself, always preclude the application of the Moorov doctrine, essential to that doctrine remains the requirement that the charges (and the evidence led thereanent) be the "the same crimes, in any reasonable sense.". The fact that a different nomen juris has been employed may, of course, often be a prima facie pointer to the existence of a difference in the criminal nature of the charges.

[33] Having thus given expression to my views on the generality of matters, I turn now to the particular crimes charged in the present case and the circumstances attending them. While counsel for the appellant naturally recognised that there was a sexual element in the conduct alleged in each of the three charges, I do not consider that the mere existence of a sexual element is sufficient to render the offences "the same crimes". While one can of course talk of sexual offences as a broad category of criminal offending, within that category there are many significantly different crimes or offences and indeed the very definition of a "sexual offence" may pose difficult questions not just for the court but also the legislator. It was, in my view, rightly, not suggested by the Advocate depute that the mere presence of some sexual element was sufficient to bring about the necessary similarity in the crimes charged. One had to go beyond the possible existence of some sexual element and look more closely to the nature of the particular offences and, as previously indicated, the Advocate Depute stressed simply some factual similarities.

[34] Having considered the charges in this case, and the evidence summarised by the sheriff, and differing from your Lordships, I have come to the conclusion that the charges and the evidence in the present case do not meet the test of being "the same crimes in any reasonable sense". I start from the fact that charge (1) (lewd, libidinous and indecent conduct) is a crime whose object or function is the protection of children from sexual abuse. As was stated by the Lord Justice Clerk (Gill) in his opinion in Webster v Dominick 2005 JC 65, para [49] (with which opinion all of the other four members of the Bench agreed) the essence of the offence of lewd, indecent and libidinous conduct is the tendency to corrupt the innocence of the complainer. On the other hand, the object or function of the other two charges is the avoidance of affront or upset (whether public - charge (2) - or private - charge (3)). Expressed more bluntly, the crime of sexually abusing one's stepdaughter, under the age of 12 years - in its terms a crime of child sex abuse or paedophilia - is inherently different in its essence from the crime of causing upset or annoyance to one's mother in law by some masturbatory activity in her presence. Put in other terms, the respective complainers in this case are in fundamentally different positions. The complainer in charge (1) was, at the relevant time, a child, as respects whom the law provides a protective régime against her being sexually abused, irrespective of her actual consent. The complainer in charges (2) and (3), was an adult of mature years. The charges are not directed to any physical, sexual invasion of her person or corruption of her sexual innocence or morality. They relate to her affront or upset. Moreover, if one goes to the evidence as reported by the sheriff, it appears that the evidence respecting the paedophilic allegations under charge (1) included evidence of actual physical contact between the appellant and his stepdaughter, and indeed the digital penetration of her private parts. No physical contact whatever is said to have taken place between the complainer in charges (2) and (3) and the appellant. In my view, it is difficult indeed to identify in these circumstances what the Lord Justice General in Moorov indicated as necessary, namely identification of a "particular and ascertained unity of intent, project, campaign, or adventure which lies beyond or behind ... the separate acts".

[35] While I appreciate the possible difficulty for the sheriff in reaching a decision on this matter in the course of a trial in which he did not have the benefit, which the appellate court has, of time for perusal and consideration of the authorities, I nonetheless consider that, in the event, his decision to refuse the no case to answer submission advanced by the defence and to allow the matter to go to the jury involved an error in law. It also involved a miscarriage of justice. For my part I would allow this appeal and quash the convictions in question, but I understand your Lordships to be minded otherwise.