Moorov v HM Advocate

Moorov v His Majesty's Advocate 1930 JC 68 is a Scots criminal and evidence law case that concerns admissibility of similar fact evidence. The High Court of Justiciary established the Moorov doctrine in its judgment, which is predominantly used in criminal prosecutions involving allegations of rape and sexual abuse.

The doctrine states that the prosecution of two or more separate offences, each witnessed by only one person, can be grouped together to evidence the accused's pattern of behaviour to the court and the jury.

Case
Samuel Moorov was a draper and the proprietor of Samuel Moorov & Son on Argyle Street, Glasgow. In 1930, he was accused of committing 21 charges of assault and sexual assault against 19 of his female employees. In most of these instances, the only evidence available was the direct evidence provided by the victim.

For anyone to be convicted, Scots criminal law uniquely requires corroboration, that is, all crucial facts must be supported by at least two independent sources of evidence. Moorov could not be convicted for instances where the only evidence was the testimony by the victim. The prosecutors attempted to introduce "similar fact evidence", arguing that because several victims had testified similar assaults by Moorov, their testimonies could corroborate one another.

At the trial stage, the use of similar fact evidence was upheld and Moorov was convicted of seven assaults and nine indecent assaults against his female employees between 1923 and 1930. The court reasoned that Moorov had shown a certain course of conduct, which was sufficient to be used to corroborate his repeated, similar offences over the course of a short period.

On appeal, the Appeal Court upheld the use of testimonies from victims to corroborate offences against one another, noting that there was sufficient connection between the circumstances.

Principles of the Moorov doctrine

 * 1) Series of offences connected  closely in "time, character and circumstance and have underlying unity."
 * 2) Evidence of one witness in a series of two or more separate offences capable of providing corroboration for the evidence of a witness in another case or cases.
 * 3) Only evidence of the greater charge can corroborate the lesser charge, not vice versa
 * 4) Not restricted to sexual assaults
 * 5) The time factor can vary- usually not more than 3 years apart, however it may extend to this period in specific circumstances.
 * 6) Character of the crime must be the same
 * 7) Sodomy and rape are not the same crimes. However, as children were involved Moorov applied
 * 8) Incest and sodomy are not the same crimes.

Application of the doctrine

 * 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 victim's distressed state can corroborate rape
 * New case law shows that distress is not necessarily enough corroboration, it is a matter of fact meaning it is up to the jury to decide if the distress is enough.

Key cases where the Moorov doctrine was applied

 * Yates v HM Advocate, 1977
 * Accused of raping a 16-year-old girl
 * Only witness was a person who testified to the girl's 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 distressed 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 
 * Overruled Stobo
 * 13-year-old complained of a sexual assault while camping
 * Distress didn’t corroborate that the act had taken place
 * They corroborated that something had happened, however it could not be proven that the girl's distress was because of what was claimed to have happened in the tent.

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 man 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

Carloway Review
"It is acknowledged that the recommendation to remove the requirement for corroboration will attract particular comment and, no doubt, criticism. There may be further consequences of abolition that will need to be worked through, as the criminal justice system is progressively reformed.  This is the nature of law in society.  But the initial decision, which has to be taken, is whether, of itself, corroboration continues to contribute more than it detracts from a fair, efficient and effective system."