Moorov v HM Advocate

Moorov (Samuel) v HM Advocate (1930 J.C. 68, 1930 S.L.T. 596)(additional citation 1930 J.C. 68) is a famous case in Scots criminal law based on criminal evidence and the admissibility of similar fact evidence. The case established a precedent named the Moorov doctrine.[1]

The Moorov doctrine

The essential facts of the case are where the accused was an employer who had allegedly committed a string of sexual offences regarding 19 of his female employees over the period of four years, with a total of 21 counts. There was corroboration of evidence available for 3 counts. This case brought light on the original course of similar fact evidence which was generally regarded as inadmissible in court. It created a "course of conduct" which related from a connection of special circumstances, such as recurring sexual offences, similar to the case itself. The course of conduct is sufficient as it determines the use of corroboration for each victim involved.

Principles of the Moorov doctrine

  1. Series of offences connected closely in "time, character and circumstance and have underlying unity."
  2. Evidence of one witness in a series of two or more separate offences capable of providing corroboration for the evidence of a witness in another case or cases.
  3. Only evidence of the greater charge can corroborate the lesser charge, not vice versa
  4. Not restricted to sexual assaults
  5. The time factor can vary- usually not more than 3 years apart. however it may extend to this period in specific circumstances.[2]
  6. Character of the crime must be the same
  7. Sodomy and rape are not the same crimes.[3] However, as children were involved Moorov applied
  8. Incest and sodomy are not the same crimes.[4]

Application of the doctrine

  • Distress
  • Prior to Lord Advocate’s Reference (No1 of 2001) to prove rape meant proving that intercourse happened against the will of the complainer.
  • Rape occurs when a man has intercourse with a woman without her consent
  • A victim's distressed state can corroborate rape[5]
  • New case law shows that distress is not necessarily enough corroboration, it is a matter of fact meaning it is up to the jury to decide if the distress is enough.

Key cases where the Moorov doctrine was applied

Yates v HM Advocate, 1977
  • Accused of raping a 16-year-old girl
  • Only witness was a person who testified to the girl's distress shortly after the incident
  • Accused admitted intercourse, but said it was consensual
  • Found guilty
Gracey v HM Advocate, 1987
  • Gracey accused of rape
  • Gracey adamant victim was consensual
  • Convicted on basis of several witnesses testifying to her distressed state shortly after the incident
Stobo v HM Advocate, 1994
  • Indecent assault
  • Various witnesses testifying to victim’s distress
  • Found guilty even after appeal, it was circumstantial in the same way that torn clothing would be
Smith v Lees[6]
  • Overruled Stobo
  • 13-year-old complained of a sexual assault while camping
  • Distress didn’t corroborate that the act had taken place
  • They corroborated that something had happened, however it could not be proven that the girl's distress was because of what was claimed to have happened in the tent.

It is found that in incidents where intercourse is admitted and distress is proven, distress can corroborate.

McKearney v HM Advocate, 2004
  • Force is no longer part of definition of rape
  • Recent distress can’t prove the mens rea of the perpetrator
  • Distress may indicate lack of consent, but isn’t evidence that the man knew that/was reckless as to her consent
Cullington v HM Advocate, 1999
  • Sexual assault
  • Distress was enough to convict, as the jury didn’t believe Cullington’s version that it was consensual

Carloway Review

"It is acknowledged that the recommendation to remove the requirement for corroboration will attract particular comment and, no doubt, criticism. There may be further consequences of abolition that will need to be worked through, as the criminal justice system is progressively reformed. This is the nature of law in society. But the initial decision, which has to be taken, is whether, of itself, corroboration continues to contribute more than it detracts from a fair, efficient and effective system."[7]

See also


  1. Moorov, Samuel. "Moorov V HMA 1930". Westlaw. Retrieved 22 April 2014.
  2. Dodds v HMA
  3. P v HM Advocate, 1991
  4. HM Advocate v Cox, 1962
  5. Yates v HM Advocate, 1977
  6. Smith v Lees, 1997 JC 73
  7. (para 7.0.5)
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