No mandatory “long time-gap” Moorov direction: adequacy of standard mutual corroboration directions is usually sufficient

1. Introduction

In Appeal against Conviction by James Donaldson or Murray against His Majesty's Advocate [2026] HCJAC 26, the High Court of Justiciary (Appeal Court) considered a focused complaint about jury directions on mutual corroboration (the “Moorov doctrine”) in a historic sexual offending prosecution.

The appellant was convicted in the High Court at Glasgow (verdicts unanimous on charges 1, 2 and 6; majority on charge 8). The appeal against conviction was restricted to whether the trial judge gave insufficient directions on mutual corroboration, given an assertedly “extraordinary” 23-year time gap between the 1990s charges involving children (charges 1, 2 and 6) and a 2018 charge involving an adult complainer (charge 8). An appeal against sentence (including an order for lifelong restriction) was to be dealt with separately.

The complainers were referred to by initials (AA, BB, CC), and the Crown also led “docket” evidence from other witnesses (DD, EE, FF) relating to prior convictions/other misconduct, including conduct in 2016–2017 which the Crown relied on as potentially linking earlier and later behaviour.

2. Summary of the Judgment

The Appeal Court refused the appeal. It held that:

• The modern law does not require a trial judge, as a matter of law, to give a special direction that a long time gap demands “special, compelling, extraordinary” features or stronger similarities before mutual corroboration can be applied.
• Standard directions on the need for similarity in time, character and circumstances are “normally” sufficient; whether to say more is a matter of judicial discretion.
• Here, the judge did remind the jury of the 23-year gap and fairly put the defence position, and it was neither necessary nor appropriate to go further in the manner proposed by the appellant.
• A more pointed “strong similarities” direction risked imbalance unless it also engaged with potential bridging evidence (notably the 2016–2017 evidence), which the judge appropriately did not single out.

Accordingly, there was no misdirection, no insufficiency in directions, and no miscarriage of justice.

3. Analysis

3.1 Precedents Cited

Moorov v HM Advocate 1930 JC 68

The judgment situates the appeal within the evolution of the Moorov doctrine. Moorov allows proof of separate charges by mutual corroboration where the incidents are shown to be components of a single course of conduct persistently pursued, demonstrated through similarities in time, character and circumstances.

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

Adam is treated as part of the modern clarification of the doctrine. The Appeal Court in the present case used Adam as a waypoint in the line of authority rejecting any rigid “special features” rule in lengthy-gap cases, focusing instead on whether the jury could reasonably view the incidents as a persistently pursued course of conduct.

CS v HM Advocate [2018] HCJAC 54 (and its status)

The appellant relied on language (noted in Adam) suggesting that a long interval may require a “specific or compelling feature” before mutual corroboration can be found. The present court emphasised that this line has been decisively addressed by later authority—particularly Duthie v HM Advocate—and that to the extent CS was thought to impose such a requirement, it has been overruled.

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

Duthie is the central authority. The full bench made clear that:

• It is not a rule of evidence that lengthy time-gap cases require “special, compelling or extraordinary” circumstances before Moorov can apply.
• While a judge may explain that a long gap might mean the similarities must be “strong”, such a direction is not essential and can be undesirable in some cases.
• CS v HM Advocate is overruled insofar as it is seen as stating a contrary principle.

The present court applied Duthie directly to reject the appellant’s attempt to convert a discretionary, case-management type observation into a mandatory direction.

JH v HM Advocate [2022] HCJAC 39, 2022 SLT 1295

JH is used to reinforce that Duthie’s “normally” does not preserve a residual category of lengthy-gap cases where “special feature” directions are required. Rather, it recognises only that, depending on complexity (numerous charges, differing categories, etc), a judge might appropriately choose to say more—without creating any legal duty to do so.

DW v HM Advocate [2023] HCJAC 28, 2023 SCCR 248

DW is cited as confirming that a significant interval (there, 17 years) does not itself prevent mutual corroboration; the assessment remains one of fact and degree for the jury, applying correct legal directions.

HM Advocate v BL [2022] HCJAC 15, 2022 JC 176

This case is cited for the proposition that mutual corroboration involves jury evaluation of matters of “fact and degree, nuance and impression”. It supports the court’s view that the judge’s task is to give correct legal structure, not to dictate how a particular factor (such as time lapse) must be weighed.

HM Advocate v CM [2025] HCJAC 40, 2025 SLT 1170

CM provides a particularly strong illustration of modern Moorov flexibility: even a gap of 34 years (potentially 25 years depending on how the jury viewed another charge) did not preclude mutual corroboration between sexual offences of different gravity and character. The present court deployed CM to show that the appellant’s “23 years is extraordinary” submission could not found a legal necessity for enhanced directions.

AK v HM Advocate, Dodds v HM Advocate, Stewart v HM Advocate (as lineage)

These authorities appear in the Duthie passage quoted by the court to explain how earlier “cautious remarks” at trial level came to be repeated in later appeals, and how Duthie sought to prevent those remarks being elevated into hard-edged rules of evidence.

3.2 Legal Reasoning

The appeal was framed as a directions challenge (not a renewed sufficiency challenge): even if mutual corroboration could legally be available, did the jury require a more explicit instruction on the consequences of the time gap?

The court’s reasoning proceeds in three steps:

1. Doctrinal position: Since Duthie, there is no legal requirement for “special features” or “compelling circumstances” directions in lengthy-gap Moorov cases. The essence remains whether the jury can identify similarities in time, character and circumstances indicating a persistently pursued course of conduct.
2. What the judge actually did: The judge reminded the jury of the defence contention that mutual corroboration should not apply to charge 8, including specifically because of the 23-year gap, and directed them to consider the points made in the defence speech. The judge also left mutual corroboration as a question for the jury.
3. Why “more” was not required (and might be problematic): A direction implying that “stronger similarities” were needed would have had to be given in a balanced way. Given the evidential landscape, balance might have required identifying evidence capable of “bridging” the gap (notably the 2016–2017 evidence). The judge did not single out that evidence, instead leaving the competing Crown/defence positions at an appropriate level of generality.

The court also observed that it was open to the jury to regard common features as including vulnerability of male complainers and grooming/exploitation, and (if they accepted it) to view the 2016–2017 conduct as part of a developing pattern. Crucially, however, the court framed this as jury evaluation, not appellate fact-finding.

3.3 Impact

Although the decision is an application of established authority rather than a major restatement, it has practical significance for sexual cases built on Moorov reasoning:

• Directions appeals will face a higher bar where the judge has given standard Moorov directions, identified the time gap, and fairly presented the defence position. Appellants cannot readily repackage a failed “no case to answer/sufficiency” contention as a directions challenge.
• Judicial discretion is reinforced: Trial judges are reminded that “strong similarities” directions are optional and can be undesirable, particularly where they would risk steering the jury towards particular items of evidence to “bridge” gaps.
• Time gap arguments remain forensic, not legal trump cards: A long interval remains a powerful defence submission on the facts, but it does not generate a mandatory legal instruction beyond correct articulation of the Moorov test.

4. Complex Concepts Simplified

• Corroboration (Scots criminal law): A crucial fact typically needs support from at least two independent sources. In multi-charge cases, this can sometimes be achieved by each charge supporting the other.
• Mutual corroboration / Moorov doctrine: Separate incidents can corroborate each other if the jury can see them as parts of a single course of conduct persistently pursued, shown through similarities in time, character, and circumstances.
• “Long time gap” in Moorov cases: A long interval does not automatically block mutual corroboration. It may make it harder (factually) to infer a single course of conduct, but it does not create an extra legal requirement for “special features”.
• Docket evidence: Evidence led to give context or support (including evidence relating to prior convictions or related misconduct) subject to admissibility rules and the trial judge’s directions on its permitted use.
• “No case to answer” submission: A defence submission at the close of the Crown case that the evidence is legally insufficient to entitle a reasonable jury to convict.

5. Conclusion

The Appeal Court in [2026] HCJAC 26 confirms the post-Duthie v HM Advocate position: even with a very substantial time interval, a trial judge is not required to direct that only “special” or “compelling” similarities can justify mutual corroboration. Standard Moorov directions—together with fair presentation of the parties’ positions and appropriate caution—will “normally” suffice. Whether to add further commentary about the effect of a time gap is a matter of discretion, and in this case the judge’s approach was held to be both adequate and appropriately balanced, leading to refusal of the appeal against conviction.