Moorov v HMA

Moorov (Samuel) v HM Advocate (1930 J.C. 68, 1930 S.L.T. 596) is a famous case in Scots criminal law based on criminal evidence and the admissibility of similar fact evidence. The case established a precedent named the Moorov doctrine.

Essential facts

The essential facts of the case are where the accused was an employer who had allegedly committed a string of sexual offences regarding 19 of his female employees over the period of four years. This case brought light on the original course of similar fact evidence which was generally regarded as inadmissible in court. It created a "course of conduct" which related from a connection of special circumstances, such as recurring sexual offences, similar to the case itself. The course of conduct is sufficient as it determines the use of corroboration for each victim involved.

The Moorov doctrine

• Series of offences connected closely in “time, character and circumstance and have underlying unity.”
• Evidence of one witness in a series of two or more separate offences may be capable of providing corroboration for the evidence of a witness in another case or cases.
• Only evidence of the greater charge can corroborate the lesser charge, not vice versa
• Not restricted to sexual assaults
• The time factor can vary- usually not more than 3 years apart
• Character of the crime must be the same
• Sodomy and rape are not the same crimes P v HM Advocate 1991 However as children were involved Moorov applied
• Incest and sodomy are not the same crimes HM Advocate v Cox 1962

Distress

• Prior to Lord Advocate’s Reference (No1 of 2001) to prove rape meant proving that intercourse happened against the will of the complainer.
• Rape occurs when a man has intercourse with a woman without her consent
• A victims distressed state can corroborate rape Yates v HM Advocate 1977
• New case law shows that distress is not necessarily enough corroboration, it is up to the jury to decide if the distress is enough.

Yates v HM Advocate 1977

• Accused of raping a 16 year old girl
• Only witness was a person who testified to the girls distress shortly after the incident
• Accused admitted intercourse, but said it was consensual
• Found guilty

Gracey v HM Advocate 1987

• Gracey accused of rape
• Gracey adamant victim was consensual
• Convicted on basis of several witnesses testifying to her ditressed state shortly after the incident

Stobo v HM Advocate 1994

• Indecent assault
• Various witnesses testifying to victim’s distress
• Found guilty even after appeal, it was circumstantial in the same way that torn clothing would be

Smith v Lees 1997 JC 73

• Overruled Stobo
• 13 year old complained of a sexual assault
• Distress didn’t corroborate that the act had taken place
• They corroborated that something had happened, but not necessarily a sexual assault

It is found that in incidents where intercourse is admitted and distress is proven, distress can corroborate.

McKearney v HM Advocate 2004

• Force is no longer part of definition of rape
• Recent distress can’t prove the mens rea of the perpetrator
• Distress may indicate lack of consent, but isn’t evidence that the ma knew that/was reckless as to her consent

Cullington v HM Advocate 1999

• Sexual assault
• Distress was enough to convict, as the jury didn’t believe Cullington’s version that it was consensual