Moorov then and now
Latest criminal cases, including Moorov rule; CCTV evidence; dockets; sentencing
Mr Moorov marches on
Although he is not as old as the Victorian man on the Clapham omnibus, Moorov still looms large over the criminal courts, almost 90 years on (since 1930 JC 68), particularly in the High Court where the vast majority of cases involve allegations of rape or historical sexual abuse where the eponymous doctrine is deployed.
A few years ago a friend of mine showed me a coffee table book of early 20th century Glasgow, and was startled to see one of the black and white photographs showed the draper’s premises of Samuel Moorov & Son, 186 Argyle Street, complete with the proprietor and his female staff in a line outside, Moorov on the left and then in descending order of height from mature-looking ladies down to the junior on the far right. With hindsight it was a chilling scene, as it was taken some time during the period between August 1923 and February 1930 in which he committed seven assaults and nine indecent assaults against female members of his staff. Indeed, at the start of the trial, the indictment contained many more charges, involving a total of 19 complainers as well as a long preamble (referred to by Lord Clyde as a “remarkable exordium”), which the trial judge withdrew, due to lack of proof, that Moorov advertised positions for female employees as part of a scheme to control and have intercourse with them.
Four of the indecent assault charges were established by corroborated evidence, and the convictions in all but one of these charges were upheld using the well-known doctrine. However, the appellant was acquitted on the assault charges, which spread over a seven-year period and could not be said to be “stages or incidents in a criminal design or campaign”. Lord Justice General Clyde said at p 76: “The time element, as well as the silly character of the offences themselves, seems to me to be conclusive against any such inference as that.” And at p 77: “but that is saying no more than they were all of the same kind – like a series of otherwise unconnected thefts by a servant who is prone to thieving from his master’s wardrobe”.
We are left, however, with his Lordship’s classic explanation of the Moorov doctrine at p 73: “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 circumstances or state of fact underlying and connecting the several charges… No merely superficial connexion in time, character, and circumstance between the repeated acts – important as these factors are – will satisfy the test… 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 subordinates in some particular and ascertained unity of intent, project, campaign, or adventure, which lies beyond or behind – but is related to – the separate acts.”
Things have moved on in the ensuing years. When I started in the law in the mid-1970s the longest gap between charges which was permitted to invoke the doctrine was about 18 months. In Ogg v HM Advocate 1938 JC 152 intervals of one year and 18 months were material factors in deciding that Moorov did not apply, whereas gaps of 17-20 years between charges in more recent times have been considered where the correlation between the other factors was so strong as to point to an underlying course of criminal conduct, and a gap of between five and seven years was accepted where the offences were opportunistic ones against young relatives.
I apologise for the historical background but the latest Moorov case, even though it arises from banal circumstances, contains an interesting innovation. In Procurator Fiscal, Aberdeen v Taylor  HCJAC 2 (7 February 2019) the respondent had been convicted by the sheriff of a contravention of s 5 of the Sexual Offences (Scotland) Act 2009 by repeatedly exposing his penis from the windows of his home and masturbating on four occasions. The complainer, a neighbour, had witnessed this conduct when she stood outside her house to have an evening cigarette. After she experienced three of these incidents on her own, her husband witnessed a fourth occasion from upstairs and rushed down to tell his wife who had seen the same conduct from the back door, after which police were informed.
The Sheriff Appeal Court ( SAC (Crim) 16) took the view that only one of the incidents was corroborated, following Spinks v Procurator Fiscal, Kirkcaldy  HCJAC 37 (see Journal, August 2018, 30), and allowed the appeal in part. On a Crown appeal the High Court reaffirmed the need to prove by corroborated evidence each of the instances to be found in a “composite” charge. Where the incidents of criminal behaviour show similarities in time, place and character such that they can properly be said to form part of a single course of conduct persisted in by the accused, corroboration may be provided on a Moorov basis. In Spinks, earlier incidents were of a domestic nature and separate and distinct from the one established by corroborated evidence.
While the “classic” Moorov case involves two or more complainers speaking to a similar incident and each identifying the accused as the culprit, the High Court said the doctrine can be applied in the case of a single complainer if evidence comes from another source witnessing one of the incidents. Accordingly, it quashed the decision of the Sheriff Appeal Court and restored the sheriff’s decision that all four incidents in the charge had been established.
Shuttleton v Procurator Fiscal, Glasgow  HCJAC 12 (27 February 2019) was a referral from the Sheriff Appeal Court following a careless driving trial in the JP court. A police officer came across a collision between two vehicles which had ended up on the wrong side of the road. Another officer arrived shortly afterwards; both officers later checked CCTV evidence which showed the appellant had caused the collision. The court was satisfied as to the provenance of the footage. While the evidence of the police officers was descriptive only, in the circumstances the footage would constitute sufficient evidence of the actus reus.
In HM Advocate v Moynihan  HCJAC 43 (8 August 2018) the Crown successfully appealed the ruling of the preliminary hearing judge who had excluded a docket which narrated an act of rape which the accused had been convicted of in 2009. The accused was now indicted with an attempted rape which had occurred at the same time. The High Court said there was no unfairness and it would be a matter for the trial judge to direct the jury so as not to reveal that the accused had been previously convicted. Presumably the docket had been added so as to present the case on a Moorov basis.
In a number of recent cases the appellant had their sentence reduced.
In Campbell v HM Advocate  HCJAC 6 (8 January 2019) the appellant was aged 25 and pled guilty to a robbery to the victim’s severe injury. The sheriff ordered her to return to custody for eight months’ unexpired licence, and imposed a sentence of 42 months reduced to 38 months to reflect the timing of the plea and by a further nine months to cover an earlier period in custody, resulting in a sentence of 29 months. It was submitted the sentence was excessive and in keeping with a case where the injury involved permanent disfigurement.
The complainer had sustained severe bruising to her face and wrists and abrasions to her face and head. She had a laceration to the scalp and a broken nose, and required to remain in hospital for a number of days. The sheriff reported that the appellant’s last conviction in 2017 was for a serious assault on the same complainer, which he regarded as an aggravation. However, the Crown conceded the earlier case involved a different complainer.
The High Court reduced the sentence by taking a starting point of three years, less nine months in custody less discount, resulting in a sentence of 24 months to be served after the unexpired portion.
In McLaughlin v HM Advocate  HCJAC 5 (9 January 2019) the appellant, aged 33, pled guilty to being concerned in the supply of cannabis. A sentence of 29 months was reduced from 32 months to reflect the plea. The appellant was observed with two others in a van which travelled from Edinburgh and Glasgow to Port Glasgow, where he attended at a property and returned with a cardboard box found to contain 130 100g bars worth £36,000. The appellant was not said to be the prime mover and had one road traffic conviction. The driver of the van had received a sentence of 15 months’ imprisonment. The court was critical that the incident had occurred in April 2016 but the appellant had not been charged until December 2016, did not appear on petition until some time later and his first diet was not until January 2018, sentence being passed that July. The sentence was reduced to a headline one of 15 months less a (roughly) 10% discount, leaving a total of 13 months to reflect the utilitarian value of the plea.
In Devlin v HM Advocate  HCJAC 4 (8 January 2019) the appellant pled guilty to producing cannabis at his home and was sentenced to three years’ imprisonment, reduced to 26 1/2 months for the plea. The matter came to light when the appellant was arrested on an outstanding warrant and nine plants were found growing in the livingroom, together with the paraphernalia of cultivation. The appellant had a bad back, was unable to work and had grown plants as he had two children to provide for, but the plants had not reached a stage suitable for distribution. The sheriff had mistakenly followed the guidelines for cannabis “gardeners” set out in Lin v HM Advocate 2008 JC 142, but that case involved the commercial production of 849 plants and a sentence of four years had been appropriate. The appellant had served in the Army for nine years and seen service in Northern Ireland. His sentence was reduced to 14 months’ imprisonment from a headline figure of 18 months.
Finally, in JM v HM Advocate  HCJAC 9 (24 January 2019) the appellant was convicted of historical sexual abuse offences involving his daughters. After trial he was sentenced to four years’ imprisonment on two common law offences and two years for statutory offences. These were ordered to run consecutively, as was four years on a further common law charge, making a total of 10 years.
Appeal against conviction was refused, but the court noted that while the abuse took place over 14 years, the appellant’s conduct had been exemplary in the 30 years since. He was 66, had serious health problems and now had poor physical and mental health. The offences involved one penetrative act. The sentences could have been made to run concurrently as the offences were all part of a single course of conduct, overlapping in time and place; accordingly sentence was reduced to six years.
Frank Crowe, sheriff at Edinburgh