Beyond Reasonable Doubt Applies to Conviction, Not to the Jury’s Application of Mutual Corroboration — and Sexual/Non‑Sexual Charges Must Be Evaluated Separately

Introduction

This appeal concerned the correctness and sufficiency of the trial judge’s directions to the jury on mutual corroboration (the Moorov doctrine) in a prosecution involving extensive domestic abuse and sexual offending against two former partners, CH and JH, between 2017 and 2022. The appellant, Thomas John Lamont, had been convicted after trial of multiple sexual and non‑sexual offences and sentenced to an extended sentence of 11 years (9 years’ custody plus 2 years’ extension). The Crown case depended on the jury accepting each complainer as credible and reliable in essential respects and then applying mutual corroboration across the two complainers.

Leave to appeal against conviction was granted on three grounds, all directed at the judge’s charge:

• Ground 1: An alleged failure to direct clearly that mutual corroboration had to be applied separately to sexual charges and to non‑sexual charges, so that sexual offending could not be corroborated by non‑sexual conduct and vice versa.
• Ground 2: An alleged misdirection in describing the timeframe as “very limited,” said to usurp the jury’s function regarding the temporal requirement for mutual corroboration.
• Ground 3: An alleged failure to make clear that the jury required to be satisfied beyond reasonable doubt that the doctrine of mutual corroboration should be applied.

Notably, the trial judge could not provide a report, but the appeal proceeded by agreement. No issue of evidential sufficiency arose; the appeal focused purely on directions in law.

Summary of the Judgment

• The appeal was refused on all grounds.
• On Ground 1 (sexual v non‑sexual mutual corroboration), although one discrete passage in the charge was erroneous and the Crown properly conceded that error, the charge—read as a whole and in the context of the speeches—adequately and repeatedly distinguished sexual and non‑sexual charges for mutual corroboration purposes. The jury would not have been misled.
• On Ground 2 (time similarity), the judge did not usurp the jury’s function. He left it plainly to the jury to decide whether similarities in time, character and circumstance existed; describing the timeframe as “very limited” did not amount to misdirection.
• On Ground 3 (standard of proof), the court clarified that the jury must be satisfied beyond reasonable doubt of guilt on each charge, but they do not require to be satisfied beyond reasonable doubt that the doctrine of mutual corroboration applies. Any inelegance in the wording of the charge did not materially misdirect the jury given the repeated, correct directions on standard of proof and corroboration elsewhere.

Detailed Analysis

1. Precedents Cited and How They Shaped the Outcome

Sim v HM Advocate [2016] HCJAC 48; 2016 JC 174

The court relied on Sim for two key propositions about appellate scrutiny of jury charges: (i) directions must not be parsed as though they were clauses of a contract or penal statute; and (ii) they must be read against the whole trial context, including the evidence and speeches. This was central to rejecting Ground 1; the Crown’s jury address had accurately separated sexual and non‑sexual courses of conduct, and the judge’s later directions did the same. Any isolated misstatement was cured by the whole.

Duthie v HM Advocate [2021] HCJAC 23; 2021 JC 207

Duthie underscores that, generally, sexual offences cannot be corroborated by non‑sexual conduct for Moorov purposes. The Crown properly conceded that a passage in the judge’s charge was inconsistent with that principle. However, because the judge elsewhere expressly confined mutual corroboration of the sexual charges to sexual conduct across the two complainers, the error did not vitiate the directions read as a whole.

Adam v HM Advocate [2020] HCJAC 5; 2020 JC 141

Adam restates the classic Moorov criteria: for mutual corroboration to apply, the offences must be closely linked by time, character, and circumstances, and reveal a single course of conduct systematically pursued. The appellate court emphasised that the trial judge had repeatedly directed the jury in accordance with Adam, expressly highlighting the triad of time, circumstance, and character as the jury’s task.

Donegan v HM Advocate [2019] HCJAC 10; 2019 JC 81

Donegan warns against overly compartmentalised analysis when applying mutual corroboration: the jury should look at the evidence in the round. The Crown drew on this to argue that the judge’s direction about “looking at the picture as a whole” was apt, and that there is no separate standard‑of‑proof threshold for the “application” of the doctrine itself. The appellate court accepted this overall framing.

2. The Court’s Legal Reasoning

Ground 1: Distinguishing Sexual and Non‑Sexual Charges for Mutual Corroboration

The appellant argued that the jury could have thought non‑sexual abuse could corroborate sexual charges, contrary to Duthie. The Crown accepted one passage was wrong, but argued the charge—especially a detailed section in which the judge said the jury had to be satisfied as to at least one sexual charge per complainer before looking to the other complainer’s sexual allegations—was sufficiently clear. The appellate court agreed.

Key points:

• The Crown’s address to the jury expressly separated sexual and non‑sexual conduct into two distinct courses of criminal conduct; defence did not challenge that approach.
• In the most detailed directions, the judge confined mutual corroboration to the sexual charges when considering sexual offences. He expressly said he would turn to non‑sexual charges separately and then did so.
• Reading the charge as a whole (Sim), the jury would have understood that sexual charges could only be corroborated by sexual conduct across the two complainers, and that non‑sexual charges stood in a different corroborative pool.

Outcome: No material misdirection; Ground 1 refused.

Ground 2: The “Very Limited” Timeframe and the Jury’s Role

The appellant complained that describing the timeframe as “very limited” usurped the jury’s assessment of the temporal requirement under Moorov. The court rejected this. The judge repeatedly told the jury it was for them to decide whether there were sufficient similarities in time, character, and circumstances (Adam). Saying the overall timeframe was “very limited” was a fair summarising comment that did not displace the jury’s task.

Outcome: No misdirection; Ground 2 refused.

Ground 3: Must the Jury Be Satisfied Beyond Reasonable Doubt that Mutual Corroboration Applies?

The appellant contended that the jury required to be satisfied beyond reasonable doubt that the doctrine “applied.” The court disagreed, endorsing the Crown’s position. The standard of proof governs conviction on charges, not the jurors’ preliminary evidential assessment of whether alleged offences form a single course of conduct for corroboration purposes. The judge’s directions repeatedly and accurately stated the need to be satisfied beyond reasonable doubt of guilt. A possibly infelicitous passage conflating issues did not, read in context, create a material misdirection.

Outcome: No misdirection; Ground 3 refused.

3. Impact and Practical Implications

(a) For Trial Judges: Structuring Clear Moorov Directions

• When an indictment mixes sexual and non‑sexual charges, directions should explicitly separate the two for mutual corroboration. Make it plain that sexual offences require corroboration from other sexual conduct with the requisite similarities (Duthie).
• Use the Adam triad—time, character, and circumstances—early and often. Leave the evaluative judgment squarely to the jury.
• Avoid phrasing that could be read as implying that non‑sexual conduct can corroborate sexual charges. If any shorthand risks ambiguity, cure it by clear, repeated corrections elsewhere in the charge.
• Do not suggest that the jury must decide “beyond reasonable doubt” that the doctrine applies. Emphasise that beyond reasonable doubt is the standard for convicting on the charge, not for the evidential route.

(b) For Prosecutors

• Frame sexual and non‑sexual offending as distinct courses of conduct where appropriate, and signal this clearly in the jury address. The appellate court will consider counsel’s speeches when assessing the adequacy of directions (Sim).
• Where a Domestic Abuse (Scotland) Act 2018 s 1 course‑of‑conduct charge sits alongside sexual offences, avoid implying that non‑sexual conduct corroborates sexual offences. Instead, focus on the sexual charges inter se for Moorov, and treat non‑sexual conduct as its own pool for mutual corroboration.

(c) For the Defence

• Where ambiguous phrasing arises, consider seeking an immediate clarification before the jury retires. Absent that, appellate courts will read the charge as a whole and in light of the speeches, which may blunt misdirection challenges.
• Be prepared to challenge any attempt to use non‑sexual conduct to corroborate sexual offences (Duthie), and to press the distinctness of the two evidential pools to the jury.

(d) For Future Appeals

• This decision reinforces that isolated erroneous phrases rarely vitiate convictions if the balance of directions and the trial context are correct (Sim).
• It clarifies that the jury’s “beyond reasonable doubt” task relates to guilt on each charge, not to their preliminary judgment about whether the Moorov doctrine is engaged.

Complex Concepts Simplified

• Mutual corroboration (the Moorov doctrine): In Scots criminal law, where several offences are alleged to form a single course of conduct systematically pursued by the accused, evidence from different incidents can mutually corroborate each other if the incidents are sufficiently similar in time, character and circumstances. The doctrine is an evidential route to corroboration, not a separate crime or a separate verdict.
• Sexual v non‑sexual charges: As a general rule, sexual offending cannot be corroborated for Moorov by purely non‑sexual conduct. Sexual charges are corroborated by other sexual offences showing the requisite similarities. Non‑sexual offences may corroborate each other within their own pool.
• Similarity in time: There is no fixed maximum interval, but the shorter the interval, the easier it is to infer a single course of conduct; longer intervals may be acceptable if other similarities are strong. The assessment belongs to the jury.
• Character and circumstances: “Character” refers to the nature of the conduct (e.g., sexual assault, coercive control). “Circumstances” include the context—relationship dynamics, modus operandi, setting, and distinctive features—linking the incidents.
• Standard of proof: Beyond reasonable doubt applies to the jury’s decision to convict on a charge. It does not create a free‑standing threshold for deciding whether mutual corroboration is “available”; rather, the jury assesses whether the necessary similarities exist and then asks whether, taking the evidence as a whole (including any Moorov corroboration), guilt is proved beyond reasonable doubt.
• Domestic Abuse (Scotland) Act 2018 s 1: Creates a specific offence of engaging in a course of behaviour which is abusive of a partner or ex‑partner. It is a “course‑of‑conduct” charge in its own right and may sit alongside sexual charges; however, for Moorov, sexual and non‑sexual courses should be kept analytically distinct.
• Aggravations: Statutory aggravations, such as under the Abusive Behaviour and Sexual Harm (Scotland) Act 2016, and aggravation by breach of bail, do not alter the basic corroboration rules but can affect sentence and the statutory recording of the offence.
• Extended sentence: A custodial term plus an extension period on licence to protect the public. Here, the custodial element was 9 years with a 2‑year extension.

Why This Decision Matters

• Clarity on standards: It firmly separates the standard of proof for conviction from the evidential decision to apply mutual corroboration.
• Structure of directions: It underscores the necessity for judges to segregate sexual and non‑sexual charges when directing on Moorov in mixed indictments.
• “Whole charge” approach: It strengthens the principle that appellate review looks at the totality of the charge and trial context, reducing the chances of successful appeal based on isolated infelicities.
• Domestic abuse + sexual offences: It provides practical guidance for trials combining a s 1 Domestic Abuse offence with sexual charges—each pool of conduct should be assessed on its own terms for corroboration.

Conclusion

Lamont v HMA [2025] HCJAC 39 does not rewrite the law of mutual corroboration; rather, it consolidates and clarifies three important points for practice. First, in mixed indictments containing sexual and non‑sexual offences, sexual charges must be corroborated by sexual conduct (Duthie), and directions must reflect that separation—though an isolated misstatement will not be fatal if the charge as a whole and counsel’s speeches made the position clear (Sim). Second, the jury’s task on the Moorov triad—similarities in time, character, and circumstances—is for them, and judges may fairly characterise the evidence without usurping that role (Adam). Third, the beyond‑reasonable‑doubt standard applies to deciding guilt on each charge, not to a preliminary “decision” that the mutual corroboration doctrine applies (Donegan).

The result is a practical, trial‑focused precedent: judges should structure directions with two distinct corroborative pools where both sexual and non‑sexual conduct are libelled, reiterate the Adam triad, avoid conflating corroboration doctrine with standards of proof, and trust the jury to make the evaluative judgment. Appellate courts, for their part, will continue to assess directions holistically in their full trial context.