No Hierarchy Bar in Mutual Corroboration: Sexual Averments in Non‑Sexual Charges May Corroborate Sexual Offences (McDonald v HMA [2025] HCJAC 43)

No Hierarchy Bar in Mutual Corroboration: Sexual Averments in Non‑Sexual Charges May Corroborate Sexual Offences (McDonald v HMA [2025] HCJAC 43)

Introduction

In Scott McDonald v His Majesty’s Advocate [2025] HCJAC 43, the Appeal Court of the High Court of Justiciary (Lord Justice Clerk, Lord Matthews delivering the opinion, and Lord Armstrong) addressed a single, tightly focused ground of appeal: whether the trial judge misdirected the jury on mutual corroboration in a mixed indictment containing both sexual and non‑sexual conduct. The case is important because it clarifies how the doctrine of mutual corroboration (the Moorov doctrine) operates after Duthie v HM Advocate [2021] HCJAC 23, especially where sexualised conduct appears within charges framed as non‑sexual (e.g., threatening or abusive behaviour under section 38 of the Criminal Justice and Licensing (Scotland) Act 2010).

The appellant had been convicted of a series of offences against three complainers (L, S, and C), including assaults, abduction, threatening or abusive behaviour, taking an intimate photograph (Sexual Offences (Scotland) Act 2009, s9), and rape (2009 Act, s1). He was acquitted of a sexual charge involving L and of raping C on a separate indictment charge. The appeal did not challenge sentence; it turned exclusively on whether the judge’s directions allowed the jury impermissibly to use non‑sexual misconduct to corroborate sexual offences, contrary to Duthie.

The Court refused the appeal. In doing so, it reaffirmed two practical rules: (1) jury directions must be read as a whole, and (2) while non‑sexual conduct cannot corroborate sexual offending under Duthie, sexual elements embedded within otherwise non‑sexual charges may operate as corroboration for sexual offences if the classic Moorov similarity test is satisfied. The Court also made explicit that there is no “hierarchy” rule barring less serious sexual conduct from corroborating more serious sexual offences.

Summary of the Judgment

The Appeal Court held that the jury had been properly directed when the charge was read as a whole. Although the trial judge’s initial directions on mutual corroboration were standard, counsel alerted him (after the jury retired) that he had not explicitly included the Duthie limitation that non‑sexual conduct cannot corroborate sexual offending. The judge then gave additional directions clarifying that point. In the presence of the jury, the advocate depute expressly accepted that the Crown did not suggest that entirely non‑sexual conduct could corroborate sexual offences; the judge agreed and added that while a “basic assault” could not corroborate rape, a sexual aspect within another charge might, depending on the jury’s view under the similarity test. A subsequent jury question about mutual corroboration in relation to keys and abduction prompted the judge to re‑emphasize the necessity of similarity in time, character, and circumstances.

On the facts, the Court accepted that the sexual conduct narrated within charge 10 (a s38 threatening/abusive charge containing sexualised behaviour such as demanding removal and inspection of underwear) and the sexual act described in paragraph (ii) of the docket (penetration of C with a phallic lollipop, without consent) were capable in law of corroborating the sexual charges against S (the s9 intimate photograph and the s1 rapes), provided the jury found the requisite Moorov similarities. The Court stated expressly that there is no rule that less serious sexual conduct cannot corroborate more serious sexual offences.

The appeal was refused.

Factual and Procedural Background

The indictment spanned different periods and complainers:

  • Against L (2004): threatening behaviour, abduction, assault; the appellant was acquitted of a separate sexual charge (charge 4).
  • Against S (2011–2012): threatening or abusive behaviour (s38), abduction, assault, taking an intimate photograph (2009 Act, s9), and rape (2009 Act, s1).
  • Against C (2014–2019): threatening or abusive behaviour (s38) with a sexualised element (demands about underwear), assault; and a docket allegation that he penetrated her with a phallic lollipop in Blackpool (September 2017). The jury acquitted on a separate rape charge (charge 12) involving C.

The appellant received an extended sentence of 8 years (6 years’ custody plus 2 years on extension). The sole appeal ground concerned the adequacy of jury directions on mutual corroboration, particularly whether the jury might have used non‑sexual conduct to corroborate sexual offences contrary to Duthie. In oral argument, the appellant ultimately accepted that, if properly directed, the jury could use the sexual element within charge 10 to corroborate charges 8 and 9.

Analysis

Precedents Cited

The judgment’s explicit precedent is Duthie v HM Advocate [2021] HCJAC 23; 2021 JC 207. Duthie refines the mutual corroboration doctrine by stressing that:

  • Sexual and non‑sexual offences are generally too different in character for mutual corroboration to operate across that boundary.
  • The focus must be on the underlying nature or character of the conduct, not merely the labels of the charges.

Although not named in the opinion, the mutual corroboration doctrine derives from Moorov v HM Advocate (1930) JC 68. Under Moorov, evidence from different incidents can corroborate each other if the offences are so closely connected by time, character, and circumstances as to demonstrate a single course of criminal conduct persistently pursued by the accused. The trial judge’s initial directions explicitly reflected this formulation (“similarity of conduct,” “single course of criminal conduct,” and the triad of “time, character and circumstances”).

This case, therefore, sits at the intersection of Moorov and Duthie, clarifying how to treat “sexualised” conduct within charges framed as non‑sexual, and whether the seriousness of the sexual conduct affects corroborative capacity.

Legal Reasoning

1) Directions must be assessed as a whole

The Court emphasised—at counsel’s concession—that a charge to the jury is not to be atomised. Even if a specific sentence, lifted out of context, might seem incomplete, the appellate court considers the totality: the initial standard Moorov directions, the supplemental Duthie-specific directions, counsel’s clarificatory statements made in the jury’s presence and adopted by the judge, and the judge’s subsequent answer to a jury question re‑emphasising the tests. This “holistic” approach is long‑standing and was determinative here.

2) Applying Duthie: non‑sexual cannot corroborate sexual—but sexual elements embedded within “non‑sexual” charges can

The problem identified after the jury retired was that the initial charge had not explicitly stated the Duthie limitation. The judge remedied that by:

  • Explicitly confirming that an entirely non‑sexual charge cannot corroborate a sexual charge (e.g., a “basic assault” cannot corroborate rape), and
  • Clarifying that where a charge formally framed as non‑sexual (e.g., s38 threatening/abusive behaviour) contains a sexual aspect, the jury could treat that sexual aspect as capable of corroborating sexual charges, provided the Moorov similarity test (time, character, circumstances; single course of conduct) is satisfied.

This correctly reflects Duthie’s substance-over-label approach: what matters is the character of the conduct in evidence. If the conduct is sexual in character, it may corroborate other sexual conduct.

3) No hierarchy bar: less serious sexual conduct can corroborate more serious sexual offences

At paragraph [13], the Court stated: “There is no rule that less serious conduct cannot corroborate more serious conduct.” This is a significant and practical clarification. In mutual corroboration, the corroborative incident need not mirror the gravity of the charge under consideration; it must be sufficiently similar in time, character, and circumstances to demonstrate a single course of conduct. Thus, sexual domination or control of a complainer through humiliation or sexualised inspection may corroborate more serious sexual assaults or rapes if the jury is satisfied of the necessary links.

4) The jury’s question and the “similarity” reminder

The jury asked whether a feature from another charge (keys) could corroborate an abduction element. The judge answered by underscoring that a mere common word or item is not enough; there must be a real link in character, circumstances, and time. This answer reinforced that the jury’s task was to assess substantive similarity, not to perform a tick-box matching of incidental features. It also suggests the jury were engaged with the legal tests rather than improperly aggregating allegations.

5) Sufficiency of the evidence for corroboration on the sexual charges

The appellant’s written submissions pressed that only charge 10 and docket (ii) could possibly corroborate the sexual charges against S but argued these were not similar enough. Ultimately, counsel accepted in oral argument that the sexual averment within charge 10 could in principle corroborate charges 8 and 9, if properly directed. The Court agreed there was sufficient evidence for the jury to use the sexualised conduct narrated in charge 10 and docket (ii) to corroborate the sexual offences in charges 8 and 9, subject to the Moorov test. The acquittals on other sexual charges did not undermine this position; the Court noted the jury returned a discriminating verdict overall, consistent with applying the directions.

Impact and Significance

For trial judges

  • When delivering Moorov directions in mixed indictments, explicitly include the Duthie rule: non‑sexual conduct cannot corroborate sexual conduct.
  • Make clear that a charge’s label is not decisive. If a “non‑sexual” statutory charge contains sexual elements, those elements may support mutual corroboration with sexual charges, assuming Moorov similarity.
  • Consider adding an express statement that corroboration does not require parity of gravity; less serious sexual conduct may corroborate more serious sexual offending where similarities in time, character, and circumstances suggest a single course of conduct.
  • Be alert that supplemental directions can cure an omission, particularly if triggered promptly and clearly, and can be reinforced in response to jury questions.

For prosecutors

  • Draft charges and dockets to give clear notice of sexualised behaviour even where the principal charge is non‑sexual (e.g., s38). Properly particularised sexual averments may become crucial corroborative material under Moorov.
  • Do not assume corroboration requires similarly grave conduct. Identify the underlying sexual character (domination, control, humiliation, intimate inspection, image taking) and show the through‑line across complainers and time.
  • Be prepared to acknowledge, in the jury’s presence if necessary, the Duthie limitation to preclude any suggestion that the Crown seeks impermissible cross‑corroboration.

For the defence

  • Focus Moorov challenges on dissimilarities in the sexual character and circumstances of the alleged conduct (e.g., consensual versus coercive contexts, public vs private settings, presence or absence of threats or restraint, distinct modalities such as photographing versus penetration).
  • Challenge vague “sexual elements” in non‑sexual charges unless sufficiently particularised; argue that incidental or ambiguous sexual content does not supply the necessary similarity.
  • Where a judge omits a Duthie-type direction, seek prompt supplemental directions; after McDonald, late but clear corrections, read with the charge as a whole, will often be treated as adequate on appeal.

Complex Concepts Simplified

  • Mutual corroboration (Moorov): In Scots criminal law, each crucial fact (including identity) generally needs two independent sources of evidence. Where there are multiple incidents alleged against one accused, evidence from one incident can corroborate another if the incidents are sufficiently similar in time, character, and circumstances to show a single course of criminal conduct “systematically pursued.” This is known as the Moorov doctrine.
  • The Duthie limitation: Sexual offences are generally a distinct “character.” Purely non‑sexual conduct cannot corroborate sexual offences (and vice versa). The court looks at the underlying character of the conduct, not the formal label of the charge.
  • Sexual elements within non‑sexual charges: If a charge formally framed as non‑sexual (e.g., threatening behaviour) contains specific sexualised conduct (e.g., coerced removal and inspection of underwear), that sexual conduct can, in principle, act as corroboration for sexual offences—if the Moorov similarity test is met.
  • No hierarchy bar: Corroboration does not require equal gravity. A less serious sexual act can corroborate a more serious sexual offence if the acts are sufficiently similar and point to a single course of conduct.
  • Docket: A docket attached to an indictment lists additional allegations that are not separate charges but may be led in evidence to provide context or mutual corroboration, giving fair notice to the defence.
  • Extended sentence: A sentence comprising a custodial term plus an extension period on licence designed to protect the public; not at issue on appeal here.

Observations on the Record

The Court noted that the jury acquitted on certain sexual charges (charge 4 against L and charge 12 against C), while convicting on other sexual and non‑sexual charges. The Crown suggested this showed a discriminating verdict. The Court’s decision, however, rested primarily on the adequacy of the directions taken as a whole and the legal sufficiency for Moorov corroboration via charge 10’s sexual averments and the docket.

There appears to be a typographical slip in the appeal narrative referencing “charge 5… repeated rape of C” when the acquittal on rape of C was recorded as charge 12. This did not affect the Court’s analysis.

Practical Takeaways

  • When an indictment mixes sexual and non‑sexual charges, judges should explicitly articulate the Duthie rule and then explain that sexualised conduct embedded in “non‑sexual” charges may still corroborate sexual offences if the Moorov similarity test is satisfied.
  • Prosecutors should ensure that any sexualised behaviour forming part of a non‑sexual charge is clearly pled and particularised; it may become crucial corroborative material.
  • Defence practitioners should direct the jury to real differences in context, method, or motivation to resist Moorov linkage across complainers and time periods.
  • There is no necessity for equality of gravity between corroborating and corroborated incidents; the legal focus remains on similarity and course of conduct, not the charge’s seriousness.

Conclusion

McDonald v HMA [2025] HCJAC 43 is a clear reaffirmation of two enduring themes in Scots criminal procedure: first, that jury directions must be evaluated holistically; and second, that the operation of mutual corroboration depends on the character of the conduct, not the statutory label of the charge. The Court concisely integrates Duthie into practical courtroom guidance by confirming that entirely non‑sexual conduct cannot corroborate sexual offending, but sexual elements within non‑sexual charges may do so if the Moorov similarities are present. Importantly, the Court dispels any notion of a “hierarchy” barrier: less serious sexual conduct can corroborate more serious sexual offences.

The judgment will be of immediate use to trial judges crafting directions in mixed indictments, to prosecutors assembling corroborative mosaics from sexualised behaviours that appear within non‑sexual charges, and to defenders contesting the asserted similarities. It consolidates the post‑Duthie landscape and offers a pragmatic blueprint: focus on the underlying sexual character, test for meaningful similarity in time, character, and circumstances, and resist mechanistic or label‑driven approaches. On that basis, the Court upheld the convictions and refused the appeal.

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