does a confession alone constitute sufficiency of evidence?
no. a confession must be corroborated.
starting point on confessions case
‘Short of a solemn plea of guilt, an admission of guilt by an accused is not conclusive against him, unless it is corroborated by something beyond the actual admission. One reason for this rule is to ensure that there is nothing phoney or quixotic* about the confession. What is required in the way of independent evidence in order to elide such a
risk must depend on the facts of the case, and, in particular, the nature and character of the confession and the circumstances in which it is made.’
Sinclair v Clark 1962 JC 57 per Lord Justice-Clerk (Thomson) at 62.
* Foolishly impractical in pursuit of ideals; extravagant; rash; impractical
corroborating confessions
Meredith v Lees 1992
Facts: A case in which an uncle was convicted of lewd and indecent practices against his young niece. He candidly and unequivocally confessed in a police interview, and the complainer, then 5, had also spoken to the sexual conduct, but her account had differed somewhat from what the uncle had said.
Legal issue: Was the fact that her account was a bit different fatal to corroboration?
Held: No, she was trying her best to tell the truth, and the discrepancies didn’t mean she couldn’t corroborate.
Significance: Where there is an unequivocal confession, very little else is needed for corroboration.
special knowledge confessions
Manuel v HM Advocate
Facts: US born Scottish serial killer who had murdered 17 people gave a confession, including where the deceased body and shoe was to be found in a field. The police found both there. He therefore revealed something that only the killer would know.
Legal issue: Was this sufficient corroboration for the confession?
Held: Yes.
corroboration of the special knowledge confession itself
Low v HM Advocate 1994 SLT 277 at 287
‘In other words where a circumstantial or special knowledge admission is being relied upon, there must be evidence from two witnesses to the effect that the accused made the statement attributed to him. Once that has been done, it may be open to a jury to conclude that the only reasonable explanation for the accused’s special knowledge is that he was the perpetrator of the crime.’
distress as corroboration
Lord Advocate’s Reference (No 1 of 2023)
Facts: The respondent in the initial case was charged with rape. The complainer and her boyfriend were smoking, and the respondent invited them up to his place. They drank lager which the complainer suspected was spiked. The boyfriend left for 15 mins, and in this time, the respondent threw her onto the bed, removed her clothes and raped her. When the boyfriend came back, the respondent answered the door half naked, even though he was fully clothed when he left.
The complainer escaped, said she had been raped, and said that the complainer had done it. Another person had heard this in the stairwell, and there was a phone call with an account too.
Held: The reference held that there was enough evidence, along with her distress.
Significance: Her distress could corroborate her accusation of the rape, not just her lack of consent. De recenti statements can also corroborate her account.
de recenti statements
Lord Advocate’s Reference (Nos 2 and 3 of 2023), the High Court clarified that de recenti statements may now, in appropriate circumstances, contribute to corroboration.
This means that a de recenti statement:
- Must be truly independent evidence (e.g. spoken to by a third party);
- Must contain sufficient content relating to a crucial fact;
- May, depending on its terms, contribute to corroborating either the commission of the offence or even identification.
- is a de recenti statement corroborative on its own, in the absence of distress?
- can a de recenti statement corroborate a complainer’s testimony both that the crime was committed and that the accused committed it?
- at what point does a statement cease to be de recenti, and hence corroborative, and become instead inadmissible hearsay?
- yes, per Lord Advocate’s Reference (Nos 2 and 3 of 2023) in the wake of Lord Advocate’s Reference No. 1 of 2023
- if a de recenti statement is corroborative, it is capable of proving the occurrence of the crime and the identity of the perpetrator
- a statement ceases to be de recenti when it ceases to be “recent” following upon the commission of the crime, or is not provided to the first natural confidante as described in this opinion
what is the moorov doctrine?
Moorov v HM Advocate 1930 JC 68
Facts: In this case, Samuel Moorov was a draper, and his business premises were on Argyle Street in Glasgow. He was initially charged with 21 offences related to 19 complainers. All of these complainers were women employed in this drapery. He was eventually convicted of 7 charges of assault, and 9 charges of indecent assault. These 9 related to 5 women over 3 years. So he’s not convicted of everything, btu of a lot of them. 13 of the charges arose only from allegations from the complainers, with no corroboration.
The trial judge directed the jury that they could rely on the evidence of each to corroborate, ie they’re mutually corroborative of one another.
Legal issue: Hang on, this doesn’t sound like corroboration. Is the evidence of each complainer mutually corroborative?
Held: Yes, indecent assaults (not assaults) can be mutually corroborative. If they were all really different from one another, then this doctrine would not have applied.
Significance: “If the incidents are so interrelated by character, circumstances and time as to justify inference that offences are parts of a course of criminal conduct persistently pursued by the accused”
what can count as a connected offence for the purposes of the moorov doctrine?
‘Forgery of a will may be relevant to a charge of murder or the theft of a motor car to a charge of bank robbery’
◦ Ogg v HM Advocate 1938 per Lord Justice-Clerk (Aitchison) at 157–158
moorov doctrine outside of just private sphere cases
McCudden v HM Advocate 1952 JC 86
◦ Attempts to bribe professional footballers
when should a no case to answer submission be upheld in relation to the moorov doctrine?
Only when ‘on no possible view could it be said that the individual incidents were component parts of a course of conduct systemically pursued by the accused’
◦ Adam & Daisley v HMA [2020] HCJAC 5 per Lord Justice General (Carloway) at [29]
must the alleged offences have the same name (nomen juris) to apply?
Carpenter v Hamilton 1994 SCCR 108
Breach of the peace and shameless and indecent conduct. The complainer in both cases were women, and they happened at 6pm in the same park within 3 weeks.
Held: Mutually corroborative.
alleged offences of a sexual nature (but not nomen juris)
MR v HM Advocate 2013 SCCR 190 per Lord Justice Clerk (Carloway) at [17]
Facts: Appellant charged with various sexual offences against female relatives of his. Ie rape of his 11 year old niece, assault with attempt to rape the same niece, something against his daughter, etc. he was convicted of 10 different charges and got an 11 year sentence.
Significance: Some are against one girl, some against another, some are sexual assault, some are rape, and you’re really splitting hairs if you’re trying to say they’re different. They are clearly related forms of sexual activity and we have developing knowledge of sexual offending like this.
penetrative vs non-penetrative sexual activity in relation to moorov corroboration
Jamal v HM Advocate [2019] HCJAC 22
Significance: penetrative sexual activity can corroborate non-penetrative
moorov doctrine in relation to child sexual abuse
Adam & Daisley v HM Advocate [2020] HCJAC 5
Significance: Child sexual abuse will create a compelling circumstance allowing this doctrine to apply unless there is a significant temporal element.
time limit for the moorov doctrine
Nowadays there is no upper time limit before Moorov doctrine can apply. It’s ultimately a matter of facts and circumstances. The more unusual or striking the similarities, the greater time will be allowed.
◦ See Dodds v HM Advocate 2002 SLT 1058
moorov doctrine where there is an exceptionally long period between offences
“Where there’s an exceptionally long period between offences a jury direction about exceptional similarities may be required”
◦ See Adam & Daisley v HM Advocate [2020] HCJAC 5
limitation on the moorov doctrine
Evidence intended to be mutually corroborative must be led in respect of another charge on the (live) indictment
Therefore, evidence that previously resulted in a conviction or acquittal cannot be relied upon for Moorov
◦ See Lord Glennie in RBA v HM Advocate [2019] HCJAC 56
does real evidence have to be corroborated?
Once provenance of real evidence established, it is available as proof of fact and it does not need to be corroborated
◦ See Gubinas v HM Advocate 2018 JC 45
provenance of CCTV evidence
Shuttleton v PF, Glasgow [2019] HCJAC 12
Facts: The appellant was convicted under s3 for an offence of careless driving. The trial featured CCTV of the incident, and the appellant switched lanes quickly without indicating, causing a crash. The police arrived quickly.
Legal issue: Could the evidence of the police corroborate the CCTV?
Held: The evidence of the police officer’s is descriptive only. Where the provenance has been established, this can be sufficient evidence of the commission and the identity. Ie where the provenance of the CCTV footage is established by corroborated evidence, then it becomes proof of fact of the events contained therein.
It can also be used for identification, but there must be comparison. So where a photo is being used for comparison, you would also have to establish prominence of this evidence.
