Introduction

The case of GH v Her Majesty's Advocate ([2020] ScotHC HCJAC_44) presents a significant examination of the Moorov doctrine within the context of sexual offences involving extended time gaps between separate incidents. The appellant, GH, was convicted of two distinct sexual offences against his younger brother ("A") and nephew ("B") separated by a period of over 12 years. The core issues in this appeal revolve around the applicability of mutual corroboration across extended time frames and the appropriateness of the extended custodial sentence imposed.

The parties involved include the appellant GH, represented by Scott, QC (sol adv), McCulloch (sol adv); Paterson Bell, Solicitors, and the respondent, Her Majesty's Advocate, represented by Farquharson, QC, and the Crown Agent. The trial was held at the Scottish High Court of Justiciary on October 14, 2020.

Summary of the Judgment

The appellant GH was convicted on two charges of libelling sexual offences against two different complainers, "A" and "B," with a significant temporal separation between the incidents. The trial judge dismissed the appellant's submission of "no case to answer," emphasizing the applicability of the Moorov doctrine despite the extended time gap. The appellant also appealed against the length of the custodial sentence, which included a 7-year custodial element as part of an extended 10-year sentence.

Upon review, the High Court upheld the trial judge's decision, affirming the application of mutual corroboration under the Moorov doctrine. The court detailed the circumstances of both offences, highlighting similarities in the victims' profiles, the familial context, and the appellant's position of trust. The sentence, deemed proportionate and reflective of the appellant’s risk to future victims, was also upheld.

Analysis

Precedents Cited

The judgment extensively references several key precedents that shaped the court’s decision:

• Adam v HM Advocate (2020 SCCR 123): Highlighted the concern over exceptionally long time gaps between offences and their effect on the applicability of mutual corroboration.
• RBA v HM Advocate (2020 JC 16; 2019 SCCR 349): Dealt with similar temporal concerns but distinguished by the nature of opportunity and continuity of offences.
• Moorov v HM Advocate (1930 JC 68): Established the doctrine that allows multiple charges to corroborate each other when they form a single course of conduct.
• Williamson v Withers (1981 SCCR 214): Emphasized that evidence should be taken at its highest, favoring the prosecution.
• Xiao Pu Du v HMA (2009 SCCR 779): Clarified that inferences can be drawn from the evidence, impacting the determination of a course of conduct.
• Mackintosh v HMA (1991 SCCR 776): Stressed caution when applying Moorov doctrine at its extreme limits, particularly with minimal charges and varying circumstances.

These precedents collectively influenced the court’s approach to assessing the credibility of applying the Moorov doctrine amidst extended intervals and differing circumstances between offences.

Legal Reasoning

The court's legal reasoning centered on whether the Moorov doctrine could be appropriately applied despite the substantial time gap of over 12 years between the two offences. Key factors considered include:

• Similarity of Offences: Both offences involved sexual abuse of male children within a familial context, executed by the appellant who held a position of trust.
• Opportunity and Access: The appellant had exclusive access to the victims during the periods of abuse.
• Consistency in Behaviour: Despite the time gap, the nature and context of the offences suggested a persistent pattern rather than isolated incidents.
• Absence of Continuing Opportunity: The court noted that beyond these two instances, there were no additional opportunities or occasions for the appellant to offend, reinforcing the strength of the Moorov application.

The court determined that the combination of these factors sufficiently established a single course of conduct, thus validating the use of mutual corroboration despite the time interval. The extended custodial sentence was justified based on the severity of the offences, the appellant's lack of remorse, and the risk posed to future potential victims.

Impact

This judgment reinforces the viability of the Moorov doctrine in cases where offences against related victims exhibit substantial similarities, even when separated by extended time periods. It underscores the court's willingness to consider the cumulative context and characteristics of offences rather than dismissing them solely based on temporal gaps. This precedent may influence future cases involving atypical application of mutual corroboration, especially in complex familial abuse scenarios, ensuring that offenders cannot evade broader scrutiny through prolonged intervals between offences.

Complex Concepts Simplified

Moorov Doctrine

The Moorov doctrine allows for multiple charges to corroborate each other, establishing a single course of conduct even if each charge might seem insufficient on its own. In essence, if several offences share common elements, they can be used together to strengthen the case against the defendant.

Mutual Corroboration

Mutual corroboration refers to the principle where each charge or piece of evidence supports and reinforces the other, enhancing the overall strength of the prosecution's case.

No Case to Answer

A submission of no case to answer is a legal argument made by the defense asserting that the prosecution has not presented sufficient evidence for the case to proceed to the jury for determination.

Conclusion

The High Court of Justiciary's decision in GH v Her Majesty's Advocate reaffirms the adaptability and robustness of the Moorov doctrine in addressing complex cases of sexual offence, particularly within familial structures and over extended periods. By meticulously analyzing the similarities in the offences and the context surrounding them, the court demonstrated a balanced approach in upholding convictions even when challenged by significant temporal separations. This judgment not only solidifies the application of mutual corroboration in such scenarios but also ensures that offenders cannot easily circumvent accountability through prolonged intervals between offences. The upheld custodial sentence further emphasizes the Court's commitment to delivering justice and mitigating future risks to vulnerable populations.