Child sex abuse is "special circumstance" for Moorov rule

Whether a direction is needed on the existence of a special or compelling feature to justify the application of the Moorov rule depends on the circumstances of the case, and the sexual abuse of children by adults is in itself a feature which will be sufficient for the jury to find the necessary course of conduct established, at least in cases which do not involve an exceptionally long gap in time.

This ruling has been given in the Criminal Appeal Court by Lord Justice General Carloway, Lord Justice Clerk Lady Dorrian and Lord Turnbull, in refusing two appeals about the application of the rule, which involves mutual corroboration by the complainers in different offences, which were based on there being a significant gap in time between the offences.

James Adam, then aged 81, was sentenced to eight years' imprisonment after being found guilty at the High Court in Edinburgh in April 2019 of four charges covering the period from 1975 to 1981, mainly against a girl LC but one incident involving a girl AH, and three charges covering the period from 1988 to 1996, against his stepdaughter LD. The evidence revealed an underlying pattern of the abuse against LC and LD, was very similar, which included touching their private parts, penile or digital penetration of their vaginas, making indecent remarks to them, and the accused exposing or touching his penis in their presence. Each complainer was a young and vulnerable girl with whom he had come into contact and had seized his opportunities to develop an abusive relationship. 

Brian Daisley was given an extended sentence of 10 years, with an eight year custodial element, at the High Court in Glasgow in March 2019, for three offences against complainers who were in effect his stepchildren: against a boy, AM, between 2003 and 2004, including digital penetration of the anus, placing AM's private parts in his mouth and biting him on the groin; against a girl, HC, between 2012 and 2016, by kissing her, licking her vagina and inducing her to masturbate him; and sexual assault and rape of HC between 2016 and 2017. Only the charges against HC relied on mutual corroboration. The children had different mothers, with whom the accused had been in a relationship at the relevant time; in addition to the family context there were certain similarities between the offences and it could be inferred that there had been preceding preparation or grooming.

For Adam, whose appeal concerned the charges involving LD, it was argued that with a time gap of six and a half years there had to be compelling similarities before the Moorov principle could apply, and the jury had to be clearly directed of the need for such a feature. While the defence had not addressed the jury on that basis, that was because the trial judge had already ruled on sufficiency. The accused was of previous good character and the the time gap could not be explained by, for example, a prison sentence.

For Daisley, it was argued that compelling similarities were required before mutual corroboration could apply in his case; a propensity to commit the type of crime libelled did not permit an inference of a course of conduct systematically pursued, and a substantial gap in time was destructive of the notion of such a course of conduct. There were also stark differences between the charges, including the sex of the complainers and the absence of kissing or masturbation involving AM.

Lord Carloway, delivering the opinion of the court, said it was only where "on no possible view" could it be said that the individual incidents were component parts of the one course of conduct persistently pursued by the accused that a no case to answer submission should be upheld. 

He continued: "It is correct to say that, where a limited number of charges are separated by a long interval of time, there is a risk that evidence, which points only to a general disposition (i.e. propensity) to commit a particular type of offence, will wrongly be allowed to be used as corroboration... such similar fact evidence is ultimately inadmissible as a means of proving a criminal charge. To be admissible, and used as proof, it must comply with the test for the application of mutual corroboration."

The Lord Justice General accepted there were dicta in the decided cases which suggested that, where there was a substantial gap between two crimes, "there must be compelling or extraordinary circumstances in play to allow that application". After referring to some of these he stated: "The outcomes of the various recent cases illustrate that, although it will very often be necessary for the trial judge to leave the matter of whether the evidence is such as is capable of proving the existence of a course of conduct persistently pursued by the accused… the court at the appellate level will apply its own judgment on whether the evidence was sufficient for that purpose… In exercising this judgment, the court will take into account the nature of the course of conduct which is alleged."

Referring to dicta in the original Moorov decision, Lord Carloway held: "In essence, in cases involving the peculiar crime of the sexual abuse of children by adults, there already exists a special, compelling or extraordinary circumstance which will be sufficient for the jury to find the necessary course of conduct established, at least in cases which do not involve an exceptionally long gap in time. For these reasons there was sufficient evidence in this case and the appeals on this ground fail."

Turning to directions to the jury, he noted "a tendency in recent years for the court to sanction the need for judges to direct the jury on how they should approach matters of fact which are within their exclusive province to determine"; and that "A direction that any application of mutual corroboration must be made with caution is a familiar one, which is ingrained in our jurisprudence" – even if it might "be regarded as somewhat condescending to assume that a jury would do anything else".

Regarding the dicta supporting a specific direction on the necessity for a special or compelling feature, as in CS v HM Advocate (2013), Lord Carloway held: "Whether such a direction is required will depend on the circumstances of the case. CS was concerned with an 11 year gap in relation to assaults and rapes against different adult complainers. Mr Adam’s case is quite different in nature, having regard to the ages of the complainers. The time gap is much shorter... The critical direction in the modern era is the one which the judge gave on the requirement for the crimes to be so closely linked by their character, the circumstances of their commission and time as to bind them together as parts of a course of criminal conduct systematically (or persistently) pursued by the accused... Mr Adam’s appeal on this ground must fail.

"In both cases there was sufficient evidence upon which the jury could hold the course of conduct proved. The significance of the absence of similar conduct in relation to other children was a matter for the jury to assess. It had no effect on sufficiency. Similar considerations apply to the differences in gender of the complainers in Mr Daisley’s case.

"The appeals are therefore refused."

Click here to view the opinion of the court.